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Those responsible for the hiring processshould be given instructions as to anypermissible representations. In instanceswhere employers are using the services of“head hunters”, the retainer should clearlyoutline the scope of the individual’s authoritywith respect to representations about thejob.Many of our clients include in theiremployment agreements an “entireagreement” clause, specifically negatingany pre-contractual representations.Background checksStudies suggest that up to one-third of jobapplicants misrepresent themselves or theircredentials on their applications andrésumés. For this reason, backgroundchecks are an important tool for employers.It is reasonable to require proof ofqualifications.However, the ability to conduct backgroundchecks is not limitless, and to avoidintrusion on a candidate’s privacy oraccusations of discriminatory hiringpractices, employers may want to consider:Ensuring the same backgroundchecks are conducted on allcandidates;Stating on application forms thatthey will seek references;Obtaining express permission fromthe candidate prior to contactingreferences;Avoiding questions to referencesthat ask for information or forconjecture about the applicant, andasking only structured and relevantquestions that will enable theemployer to gain accurate additionalinformation about the candidate’sabilities;Informing the candidate how thepersonal information provided will behandled and kept;What, if any, social media checksare required and whether it isappropriate to seek permission fromthe candidate prior to performingthese checks;Whether it is permissible underapplicable human rights legislationto perform a criminal backgroundcheck or credit check (this variesamongst the jurisdictions and therecan be specific legislation in relationto credit checks); andPerforming background checks onlyafter a conditional offer is made (thismay limit both the costs associatedwith the hiring process – as fewerbackground checks will beconducted – and an employer’sexposure to complaints).When conducting any reference orbackground investigation, employers needto be aware of the risk of attracting a humanrights complaint from a candidate who is nothired on the basis of the reference orbackground investigation. Employers havethe responsibility to ensure that no unlawfuldiscrimination occurs in the recruitment andselection process based on human rightsprotections. Equality of opportunity is anintegral part of the recruitment and selectionprocess and employers have an interest indeveloping and adhering to fair, nondiscriminatoryrecruitment and selectionpolicies.Employment and Labour Law 101