Inducement or Mere Recruitment?

Recruitment is an effective tool for employers to find suitable candidates for their available positions. Recruitment may also play an important part of many individuals’ career trajectories.

In today’s digital era where recruiting candidates is made easy by social media platforms, the key question is: when does recruitment cross the line into inducement, which can carry significant legal consequences for the employer?

What is Inducement?

Inducement occurs when an employee, who has given up secure employment due to reliance of assurances of job security from a prospective employer, is dismissed within a short time after working with the new employer. The law recognizes instances where an employee should be credited with some of their service period with their former employer by extending their reasonable notice period.

However, courts have acknowledged a certain level of salesmanship is inherent in the recruitment process, and not every situation involving recruitment will meet the legal threshold of inducement.

Important factors when considering whether an argument for inducement can be made include the reasonable expectation of both parties; whether the employee sought work with the prospective employer, any assurances of long-term employment by the prospective employer; whether the employee performed due diligence prior to accepting the position; whether the employer engaged in discussions amounting to more than the normal “courtship” that occurs; and the length of time the employee remained in a new position.

Inducement vs Recruitment

Given the above factors, where statements and conduct by the employer demonstrate the intention to provide the recruitment candidate with job security, and the candidate relies on these explicit and implicit guarantees, inducement may be found where the candidate-turned-employee is dismissed shortly after commencing work with the new employer. An extended reasonable notice period is therefore justified by inducement—in other words, the employee would not have left their secure position with their former employer, but for the new employer’s false promises of better, secure, and long-term employment.

On the other hand, where the new employer has in fact provided lengthy employment, it will be more difficult for the recruited employee to argue they were not provided with secure employment prior to the end of the employment relationship with the new employer. The amount of time served with the former employer will also affect whether there is a finding that the employee was in fact induced. The more time the employee has spent working for the former employer and the less time they have spent working with the new employer, the more likely the finding of inducement (rather than mere recruitment). The reverse is also true, but many factors may still tip the scales the other way.

One such factor, which provides important insight into the reasonable expectations of the party, is whether the employee was subjected to a clear and unambiguous probationary period. Such a clause can help to counteract arguments of inducement where drafted properly, particularly given that such periods represent tentative employment where an individual’s suitability for the role is assessed before any offer or expectation of long-term employment.

No one factor is determinative, and of course, the factors are judged on a case-by-case basis, depending on the conduct of the parties and how clear the intentions of the parties are drafted.

If you are an employer who wants to understand how to avoid engaging in the inducement, or an employee who believes they were induced and then dismissed, our team of experienced workplace lawyers at Achkar Law can help.

Contact us by phone at 1 (800) 771-7882, or email at [email protected] and we would be happy to assist.