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THE QUESTION
Can negotiating the terms of an employment contract result in the employer rescinding it? I’m currently in the running for a few positions and I have a feeling that I’ll be wanting to negotiate some terms such as pay, work from home days and vacation time. I’m worried that driving a hard bargain might result in the employer rescinding their job offer. Does that ever happen? Is there a “best way” for me to present multiple counter-offers for the terms of an employment contract?
THE FIRST ANSWER
Daniel Wong, partner and chair of WeirFoulds’ employment and labour group, Toronto
Bargaining or negotiating terms is common and even expected in some transactions, while in others it may be considered inappropriate or rude. In the employment context, when a job offer is presented, prospective employees should understand that making a counterproposal has the legal effect of rejecting the original offer. Once rejected, the original offer cannot later be accepted unless the potential employer expressly revives it. In other words, they “put it back on the table.”
Canadian courts have held that asking questions about the original offer, if properly worded and appropriate to the circumstances, does not amount to a counterproposal or rejection. For example, inquiring whether there is flexibility on certain terms may leave the original offer open for acceptance.
Prospective employees should be careful to avoid any communications that may result in a misunderstanding with a potential employer. The Canadian courts have considered the legal effect of a party using emojis and whether they result in a legally binding agreement in the commercial context. In the employment context, imagine responding to a job offer by text with a thumbs-up emoji. The prospective employee intended the emoji to mean they accept the offer, while the potential employer interpreted it as mere acknowledgment of the offer. Such misunderstandings can lead to disputes over whether an agreement was reached.
As with many employment matters, practical considerations can be as important as legal ones. A job offer is the beginning of what is intended to be an ongoing relationship. Prospective employees should consider how the employer might perceive a counterproposal or questions about the offer, and whether such actions could negatively affect the relationship before it even begins.
THE SECOND ANSWER
Jean-Nicolas Reyt, associate professor, Desautels Faculty of Management, McGill University, Montreal
I teach negotiation to students entering the job market and fear of having an offer rescinded comes up regularly in our conversations. This concern is not limited to graduating students; it extends across the Canadian workforce. Surveys show relatively few candidates negotiate the terms of their employment, often because they fear losing the offer. Yet surveys of Canadian recruiters consistently show that a majority expect candidates to negotiate at least some aspects of the offer. Recruiters are generally far more open to negotiation than many Canadians assume.
In practice, it is rare for employers to withdraw a job offer because the candidate attempted to negotiate. The more common worst-case scenario is simply being told “no.” Where candidates sometimes get into trouble is not that they negotiate, but how they do so. A common mistake is to negotiate on salary alone or to present multiple terms as non-negotiable conditions for acceptance. For example: “I need a base salary of $X, three days working from home and four weeks of vacation in order to accept.” This framing forces the employer into a yes-or-no decision and leaves little room for problem-solving.
A more effective approach is to negotiate across multiple dimensions and recognize that employers are often constrained on some terms but flexible on others. A better opening sounds like: “Before I respond, I was wondering what flexibility exists around compensation, remote work or vacation. These are all important to me and I would love to understand what might be possible.” If salary flexibility is limited, candidates can then explore alternatives, such as additional work-from-home days or extra vacation time.
In short, negotiations tend to go more smoothly when candidates frame them as a conversation about priorities and trade-offs, rather than a list of conditions for acceptance. Good luck.
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