6 Things to Know About Non-Competition Clause

| January 28th, 2016 | No Comments »

non-compete clauseThe non-competition clause, otherwise known as a ‘Non-Compete’, is typically an agreement between an employee and employer that prevents the employee from participating in a business that competes with the employer.

Not all Non-Competes are enforceable, and often courts will strike them out of employment contracts for constituting a ‘restraint on trade’. Whether you are being pressured to sign a Non-Compete, or have already agreed to one, make sure you know these six things:

  1. Non-Competes cannot be forced: A Non-Compete is an agreement between two parties.  In order for an agreement to be enforceable, each party to the agreement must receive something of value.  If you agreed to the Non-Compete after commencing employment, and did not receive an incentive for doing so, your Non-Compete may be unenforceable.
  2. Non-Competes are generally unenforceable against former employees: There is a public interest in allowing individuals to pursue their livelihood as they see fit. Where there is an imbalance in bargaining power (e.g. the employee had little or no say into the terms of their employment contract), the Non-Compete is less likely to be upheld.
  3. Non-Competes must be limited in scope: A Non-Compete that lasts for two years and applies to all of North America is less likely to be enforced than one that lasts for six months, and applies to a small geographic territory.
  4. NonCompetes will not be upheld where a non-solicitation clause will do: Employers utilize non-competes to protect their business interests. Often that interest takes the form of a client or customer list. Courts will refuse to enforce a Non-Compete where a non-solicitation clause protects the employer’s interest.
  5. The employer must prove actual harm: In order for a Non-Compete to be enforced, the employer is faced with the burden of proving that a specific harm will arise if it is not enforced. The burden cannot be discharged by speculation or prospective thinking.
  6. You have options: Agreeing to a Non-Compete does not mean it is set in stone. Similarly, a prospective employer may be agreeable to removing it from your employment contract. If you are faced with a current or future Non-Compete, it is imperative to speak with a competent employment lawyer to know your rights.

Author: Marc Kitay, Whitten & Lublin

The Rise of Age Discrimination Lawsuits and Their Effect on Employers & Employees

| January 21st, 2016 | No Comments »

Age discrimination lawsuitsAge discrimination is where an employee is treated differently, or unequally, in the workplace on the basis of his or her age. Human rights legislation protects workers from age discrimination at every stage of their employment. This includes during hiring, while they are working, and when their work ends. Violating these laws may give rise to a lawsuit, which could result in a substantial monetary award.

Recently, age discrimination lawsuits are on the rise.  This is in part because age has become an important issue in the workplace.  The workforce is aging and without a mandatory retirement age in Ontario (with few exceptions), many older workers are choosing to stay in the workforce.  This has exposed employees to discriminatory practices and employers to age discrimination lawsuits.

The rise of age discrimination lawsuits is an important development for employers and employees alike.  On the one hand, employees understand that they are protected from age discrimination in the workplace and that they can seek recourse if treated differently on the basis of their age.  On the other hand, employers are better able to understand their legal exposure and how they can protect themselves from such claims.

If you are an employee who thinks you have been discriminated in the workplace because of your age – or if you are an employer who would like to learn more about your legal exposure to a claim of age discrimination – consult with an employment lawyer today.

Author: Ozlem Yucel, Whitten & Lublin

Your Rights When You Face Termination Without Cause

| January 5th, 2016 | No Comments »

A terminated employee is typically entitled to fair severance, unless he or she did something so serious to warrant losing it (called “termination for cause”).

An employee’s actual entitlement is determined by first looking at whatever deal they might have made with their company.  Such a deal – called a “termination clause” – is usually found in an “employment agreement” or in a similar but less formal document signed by both sides.  Very commonly, these arrangements are set by the company itself and are most beneficial to it.  Therefore, it’s important to try to negotiate early on before signing anything, with the assistance of a trained lawyer.

Courts will only allow arrangements that provide for at least the minimum amount(s) required by the government.  Because these arrangements are usually company-friendly, it is necessary to speak to an employment lawyer to determine if there is a legal basis to get a better severance deal than what it appears to say in the agreement.  Our firm regularly finds ways to get much better deals for terminated employees in circumstances that allow for it.  One example is where an employee is hired to do one job, is promoted several times, and then is terminated years later.  The termination section in the employment agreement that was initially signed likely won’t be accepted by the courts in that situation, since the employee is serving a totally different role by that point.

That decision could be the difference between a severance of several thousand dollars… or tens of thousands of dollars.

From an employer’s standpoint, because fair severance can become very costly, the safest thing to do is have an employment lawyer draft an agreement with a legally enforceable termination clause.  Too often, we see companies pulling agreements off the Internet, or using non-specialized lawyers to put them together.  This is a problem, because very often the law has changed, or a non-expert misses something of significance.  The agreements can go a step further to address other issues of importance to the business, such as post-employment obligations, confidentiality, and so forth.

Author: Daniel Chodos, Whitten & Lublin

Constructive Dismissal in Ontario: What Qualifies and Do You Have A Case?

| December 16th, 2015 | No Comments »

Constructive dismissalVery simply, a constructive dismissal is when an employer makes fundamental changes to an employee’s job that are unfavourable to the employee. The employee may resign and demand a severance package as though the employer terminated the employment relationship.   Examples of constructive dismissal may include:

  • a demotion
  • pay cut
  • change in work location
  • change in schedule
  • change in job duties
  • intolerable conditions in the workplace, such as harassment, discrimination or toxic work environment

A constructive dismissal may not necessarily be a single fundamental change, but a series of incremental changes that on the whole, represent a substantial change to the employment relationship.

Workplaces are not static. Change is inevitable and it is not uncommon for employees to dislike certain changes to their job. However, not all changes will amount to a constructive dismissal. For example, a change in job location that may entail an extra half hour of commuting time, while inconvenient, probably would not amount to a constructive dismissal. Conversely, a change in location that may add several hours of additional commuting time is more likely to amount to a constructive dismissal.

In order to have a valid claim for a severance package from your employer, the change has to be a substantial departure from the existing employment relationship, and it would be unreasonable in the circumstances to continue working. It is important that you obtain legal advice about whether you have a claim for a severance package before you consider leaving your job.

Author: Jonquille Pak, Whitten & Lublin

Equal opportunity employment

| December 9th, 2015 | No Comments »

Equal opportunity employment is important and is in line with the employment equity goals of the Charter of Rights and Freedoms, existing Federal employment legislation, and the Human Rights Code.

While this is mandated for federal employers pursuant to the Employment Equity Act, which mandates reporting requirements with respect to the number of visible minorities, including women, other employers are left to craft their own policies and best practices to ensure equal opportunities.

As always, equal treatment does not always make an equal opportunity employer.

With this in mind, Ontario employers are able to implement policies pursuant to the Ontario Human Rights Code’s section 14 – “Special Programs”. The Code allows what might otherwise appear to be preferential treatment where the treatment is directed towards a historically disadvantaged group. As such, it is not discriminatory to implement a program if it is designed to: (a) relieve hardship or economic disadvantage; (b) help disadvantaged people achieve, or try to achieve, equal opportunity; or (c) help eliminate discrimination.

Further, under the new AODA requirements, employers now have an obligation to notify employees, the public, and job applicants of the availability of accommodation for disability.

The AODA requirements are in addition to an employers’ obligation to explore accommodation and provide it to the point of undue hardship.

The Ontario Human Rights Tribunal has also recently released guidelines dealing with conflicting or competing human rights in the workplace. Employer policies should address pay equity issues and available accommodation for family status.

Our recommendation is to implement a policy or employee handbook which expressly summarises the employer’s commitment not only to being an equal opportunity employer, but also how they are fulfilling that commitment and, options available to employees to ensure equal opportunities.

Author: Ellen Low, Whitten & Lublin

What is Wrongful Dismissal and Are You a Victim?

| November 20th, 2015 | No Comments »

A dismissal is wrongful if an employee has been terminated without adequate notice or fair payment in lieu of that notice. It is implied that a dismissed employee is entitled to “reasonable notice” of their eventual last day of work or the compensation they would have been entitled to over that period.

The focus of the wrongful dismissal case is the determination of the “reasonable notice” period. Our Court of Appeal has made clear that “determining the period of reasonable notice is an art not a science”. Courts consider a number of factors including, but not limited to, age, salary, tenure, educational background, recruitment to the job, specialty and whether similar positions are available in the marketplace at the time of termination. Payment in lieu of reasonable notice is what we commonly refer to as severance.

Be advised, reasonable notice is not always due to employees. An employer does not need to provide reasonable notice if they have clearly and legally limited notice. Moreover, employers do not need to provide any severance if they have “just cause” for dismissing an employee. For an employer to have just cause the employee must have committed a terrible act that strikes at the core of the employment relationship. Stated differently, to deprive a terminated employee of any severance they must have engaged in something as egregious as theft, serious dishonesty or harassment.

Rest assured, just cause is a very difficult for an employer to prove and employment contracts of even the largest and most sophisticated employers have been found inadequate in their attempts to limit notice.

Consider consulting the lawyers at Whitten and Lublin for an expert assessment of your wrongful dismissal case and severance entitlement.

Author: Paul Macchione, Whitten & Lublin

The consequences of avoiding to pay a dismissed employee with a severance package

| November 16th, 2015 | No Comments »

Employers should be careful when fabricating an allegation of cause for termination in order to avoid paying a dismissed employee with a severance package.  A recent decision confirms that these allegations can expose employers to increased cost consequences.

The ordinary rule is that an unsuccessful party to a lawsuit pays around 60% of the successful litigant’s legal costs.  However, in Tetra Consulting and Lewis Cassar v. Continental Bank of Canada and Continental Currency Exchange Canada Inc., 2015 ONSC 6546 – a case that we recently argued on behalf of the plaintiff employees – the court ordered Continental Bank of Canada (“CBC”) pay the plaintiffs not only a proper severance package, but nearly all of their legal costs.

The court found that CBC’s unfounded allegation of cause for terminating the plaintiffs made their case more difficult than it should have been, thereby increasing their legal costs.  The principles of justice favoured providing the plaintiffs with nearly complete indemnification for having to litigate the unfounded allegation.  They were awarded costs in the amount of $42,394.26.

Knowing which strategies to use, and not use, can be difficult in wrongful dismissal cases.  Employers, and employees alike, are encouraged to consult with an employment lawyer to minimize their potential liability and avoid a humiliating loss at trial.

Author: Ozlem Yucel, Whitten & Lublin

Should you accept a demotion due to your illness?

| October 2nd, 2015 | No Comments »

Question:

I was injured at work and subsequently diagnosed with an autoimmune disease, which my doctor says is likely related to the injury but not really provable.   My performance at work has suffered due to this disease, also because of absences due to hospital visits and the like.  I had never been written up before until my injury and now it seems like they are trying to get rid of me. They are essentially forcing me to step down from my management position or I feel like I will be fired.  As it stands now, I have actually agreed to step down, so it may be too late for me to do anything about it, but I feel that I was railroaded into this decision. 

Answer:

You are not required to accept a unilateral demotion, especially if the reason your performance has suffered is related to an illness.  Your employer is required to accommodate your autoimmune disease, and related absences, to the point of undue hardship.  Tell the employer you’ve changed your mind – you are no longer prepared to move into the new job; you want to be accommodated in your existing management position. If they refuse, call a lawyer or the human rights legal support centre.

Based on your individual needs, the experts can guide you step-by-step and provide thorough legal advice.

Can an Employer Terminate an Employee Who is Ill?

| September 30th, 2015 | No Comments »

Question:

I was fired through email, while undergoing cancer treatment!  I believe I was let go because I had to undergo surgery which would have left me unable to work for at least 4-5 months, plus ongoing treatments.  I was never written up or given any kind of warning for bad work, which would have led to me being fired.  I worked at this establishment for over one year.  What are my options?

Answer: 

It could be that there were legitimate reasons for making a decision to terminate that were completely unrelated to your cancer treatment, however, the timing certainly raises suspicion and is a cause for concern.   Under human rights legislation, you have a right to reasonable accommodation, including the right to take the time off that you need for cancer treatment without fearing that you will lose your job because of it.   If you believe your employer fired you because you are ill and are/or will be unable to work, you have recourse.  In Ontario, you may bring an application to the Human Rights Tribunal of Ontario to seek compensation for the breach of your human rights.  Through the Human Rights Tribunal, you may have a range of remedies available to you, including compensation for lost wages, damages  for the discrimination that you experienced, and potentially reinstatement back to your job.  In Ontario, you can also seek financial remedy through the courts by way of a civil suit.  You should speak to an employment expert about your rights and which option may be most appropriate in your circumstances.

My Boss Made Significant Changes to My Employment

| August 27th, 2015 | No Comments »

Drastic Changes to My Employment

The concept of an employer making a change to a workers employment is not odd. It’s possibly more common than we think. The issue employees take is the extent and significance of these changes, and this concern has legal merit. Take for instance employee A, who has independently worked in their department, earning commissions based on sales. Suddenly, the employer explains that a colleague (employee B) will be working with employee A, and based on his/her performance, employee A’s commission will be dependent on employee B’s sales as well. Readers of the Globe and Mail are interested in finding out, can an employer legally make such a significant change to their employment?

Claims for Constructive Dismissal

Daniel Lublin, Toronto employment lawyer provides his professional opinion by explaining that the answer lies in determining how significant the changes are to an employee’s work duties and their compensation. An employer must seek the employees consent to the changes or provide reasonable notice of the changes. When changes to an employees work duties and compensation are significant, an employee may claim constructive dismissal and sue for lost wages.

Claims for constructive dismissal are unique on a case-by-case basis. As such, retaining a lawyer to provide you with case specific advice is crucial. Consult with our team at Whitten and Lublin to book your appointment and read Daniel Lublin’s Globe and Mail column and full article Does my boss have the right to change my compensation and work load?