By: Cedric Lamarche

For many businesses, customers and clients are hot commodities. In an age where “googling” a few key words can generate an infinite list of hits, businesses attract and retain clients not only as a result of the good deals they offer, but also as a result of the relationships that exist between their clients and the business’ employees. Since employees frequently move from one employer to the other, it’s no surprise that many employers often try to protect their customer and client pools by including restrictive clauses in their employment contracts. Examples of restrictive clauses that have been included in employment contracts and that have been upheld by the courts include non-competition and non-solicitation provisions.

As one can imagine, when employees leave their employment to pursue other opportunities, legal issues often arise as a result of restrictive provisions. On the one hand, businesses want to protect their client base and their proprietary information and, on the other hand, employees want to continue working in the same industry and continue servicing those clients with whom they have cultivated relationships over time. The courts will generally deal with these types of disputes cautiously as a result of the various policy concerns, including the fact that restrictive clauses often limit an individual’s ability to work in their craft or in their field of expertise.

In a recent case before the Alberta Court of Queen’s Bench, the court considered how far an employer should be permitted to go in imposing restrictive clauses to an employee who was already working for the employer. In doing so, it confirmed many of the rules that employers should follow in order to ensure the existence of fair contractual terms between parties that are often on unequal footing.

Accordingly, employers who wish to protect themselves should consider playing by the following rules:

• Employment agreements should ideally be concluded before an employee starts work.

• If an employer wishes to create a written employment contract or modify an existing contract midway through an employer/employee relationship, it should:

o provide something of value to the employee in exchange for signing the contract;

o advise the employee to consult legal counsel, and confirm this in writing;

o explain the restrictive clauses to the employee;

o inform how, if at all, the employment role will change if the employee refuses to sign the contract

o Ensure that the restrictive clauses are relevant to the employee’s position (i.e. not overly broad and too onerous with respect to the position).

Cedric Lamarche is a lawyer with Whitten & Lublin LLP, an employment law office assisting employers and employees on various workplace legal matters. .

By: Brian Norris

The recent and very public locker room gun-pulling incident between NBA players Gilbert Arenas and Javaris Crittenton has highlighted the importance for employers to create and enforce policy on workplace safety.

As many sports fans know, Arenas and Crittenton have now been suspended by the league for the remainder of the 2009-2010 season for brandishing guns in the Washington Wizard’s locker room. Some may interpret the NBA’s actions as “making an example” of the payers. Others, such as myself, see it as the league legitimizing and enforcing it’s policy outlined in the collective bargaining agreement; An agreement produced by the collective efforts of the NBA owners and the Players’ Union.

As previously mentioned by Daniel Lublin, if an employer wants to lean to it’s policies in support of a lawsuit, it is important for them to circulate and enforce clearly worded company policy.

With the introduction of Bill 168 in Canada, the issue of workplace safety regarding violence has been a hot topic as of late. The incident between Arenas and Crittenton and the manner in which the NBA dealt with it is a good example for all employers to take notice of.

Brian Norris is the Office Manger of Whitten & Lublin LLP, an employment law office providing counsel to both employers and employees.

Employees and employers make all kinds of wrong assumptions about the law. Seldom do their “perceived” rights exist. Often they rely on rules that have long been rejected by the courts and legal doctrines that are now invalid. Sometimes they are just steered wrong by their lawyers.

Employees and employers are most confused about the rights and obligations of departing employees. Key employees believe they can pack up and leave without notice and employers will assign the label of a “fiduciary” to junior employees, a title usually reserved for directors.

A recent Ontario case should be setting off alarms.

To read the full article, published in the Metro, read here: //www.metronews.ca/toronto/columnist/8144

Daniel A. Lublin is an employment lawyer with the law firm Whitten & Lublin LLP. Reach him at dan@toronto-employmentlawyer.com

Clash of the Talk Show Hosts

Talk show host, Conan O’Brien, has reached a $45 million (U.S.) deal with NBC.

After only 7 months on the Tonight show, as a result of poor ratings 46- year old O’Brien will be off the air. With fellow talk show host, Jay Leno, returning to his former late night slot, O’Brien will personally receive $33 million with the balance to be paid out as severance to his staff and crew.

O’Brien didn’t take the news lightly.  Rather, he publicly declared his disappointment that NBC had given him less than a year to establish himself as host.

He even went so far as to state that “[y]ou can do anything you want in life. Unless Jay Leno wants to do it, too!”.

As O’Brien’s employer, NBC may have provided an excessive severance package.  Deals of this magnitude are extremely rare.

In Canada, severance is usually determined by the “Bardal” test, which asks how long it ought to reasonably take an employee to secure another, comparable position.  Relevant factors include the employee’s age, tenure, position and the availability of another similar paying job when considering personal circumstances.

There can be other complicating factors, such as an employment contract that includes either a golden parachute or alternative a punitive termination clause.  As well, and likely what occurred in the O’Brien case, negative public scrutiny can often influence how fast – or how much, an employer pays to get rid of an employee.

Alyssa Minsky is an employment lawyer with Whitten & Lublin LLP, an employment law firm providing workplace legal representation for employers and employees.

Work responsibilities can change on a dime.

Here is the cautionary tale of two employees who incorrectly assumed their employers had no right to change the terms of their jobs.

Experiencing an enrolment crisis, Acadia University decided it had no other choice but to remove oversight of enrolment and admissions from Paula Cook Mackinnon’s job.

Mackinnon, who had been employed by the university in a senior role for 19 years, disagreed. Believing that the university could not remove an important aspect of her job without advance notice or consultation with her, Mackinnon penned a letter to the president stating that she viewed the changes as significant and tantamount to a demotion.  She gave the university a few days to consider her concerns and provide a response.

When the university did not respond to Mackinnon’s letter before her deadline, she shut off her BlackBerry, cleaned out her personal items from her office and swiftly left the premises, never to return.

The law of constructive dismissal provides that an employee can treat fundamental changes to her job as effectively amounting to a termination.  And in Canadian workplace law, when you are terminated without a good reason, you are entitled to severance.

Justice Gregory Warner, who wrote the recent decision, correctly noted that the issue was not whether Mackinnon had “quit” her job, but whether she had a good enough reason to leave.

However, it could not be said that Mackinnon’s job was substantially different following the changes, as enrolment amounted to less than one quarter of her job. The university was entitled to reasonable leeway with changing business needs.

Similarly, in another recent case, Bank of Nova Scotia executive David Chapman resigned, claiming a reduction in his salary and the bank’s failure to honour a promise amounted to his termination. Although Chapman’s salary was reduced by 13 per cent, it was only the variable component of his pay, such as stock options, shares and bonuses that changed, not his base salary. Agreeing with the bank and dismissing Chapman’s case, the court found that Chapman’s pay could be reduced because he was always part of a variable compensation model and had remained in the applicable range for his position.

Why should employees and employers care about these cases?

Employers often assume incorrectly that they can change an employee’s job as they see fit.  Just as often, employees wrongly assume that their jobs cannot be changed without their consent. As similar facts don’t always lead to the same results, especially in workplace law, my advice is to consider a mutual resolution instead of always marching to the courtroom’s doors.
– Daniel A. Lublin is an employment lawyer with the law firm Whitten & Lublin LLP. Reach him at dan@toronto-employmentlawyer.com

On January 1, 2010, the Ontario civil justice system underwent a major overhaul.

Some of the major changes include:

a. Raising the Limits on General Damages – The limit for a claim in the Small Claims Court will be raised from $10,000 to $25,000.  

b. Raising the Simplified Procedure Limit on Damages – Currently, the limit to have claims tried under the Rules of Simplified Procedure is $50,000. This limit will be increased to $100,000.

c. Limiting Examinations to One Day –

d. Litigation Management - The parties involved will have a greater responsibility for moving the matter forward in a timely fashion. The new rule however, will not apply to claims made in Toronto, Ottawa, and Windsor.  

e. Greater Proportionality in Fees – The new changes will encourage judges to award costs for legal fees on a basis relative to the claim. 

f. Modified Cost Rules for Summary Judgments – Judges will have greater discretion when awarding costs stemming from the same type of motion which will rely more on the appropriateness for summary judgment instead of the outcome.

A useful article in the Law Times, examines the issue and concludes that since the Province doesn't plan on spending more money in the small claims system, the delays will become increasingly prohibitive. 

In redesigning the rules, the government may have simply traded one set of problems for another. Ironically, many of the new rules may actually end up costing litigants more money and taking their cases longer to resolve. Here are some of those problems for workplace legal disputes: http://www.metronews.ca/toronto/comment/article/332966–new-rules-may-not-be-as-employee-friendly-as-planned

An e-copy of the new rules is available on the Government website e-laws. 

Daniel A. Lublin is an employment lawyer with the law firm Whitten & Lublin LLP, focusing on the law of dismissal.  Daniel can be reached at dan@toronto-employmentlawyer.com.  

Recently announced by England's Employment Tribunal, CIBC has been deemed to have acted in a discriminatory manner towards Mr. Achim Beck, a 40-something former head of marketing.

Mr. Beck was successful in asserting his claim that the bank had discriminated him on the bases of age. His case would likely not have gathered steam had he not seen his ex-employer's job posting while trying to mitigate his loses. The posting cited the company was "seeking younger, entrepreneurial profile (not a headline profile rainmaker)". In May 2008, when Beck was terminated by the bank, he was 42 years old.

For more information, please see the latest Globe & Mail and Financial Times articles on same.

Brian Norris is the Office Manager at Whitten & Lublin LLP, and employment law office providing counsel to both employees and employers on a wide range of workplace law matters.

Kelly McDougald, the ex CEO of the Ontario Lottery and Gaming Corp has reportedly settled her wrongful dismissal case against the Ontario Government for approximately $750,000.00, according to a Toronto Star article on Saturday. 

The deal is being criticized by opposition parties first, because the details were released over the holidays in an effort to downplay the payout and second, because it's approximately $400,000 more than what the Star reported McDougald would have taken in a settlement when she was first fired.

McDougald was fired during the OLG expense scandal earlier this year and argued that she was made a scapegoat by the Ontario Government.  The Government alleged it had "cause" for McDougald's termination, which if correct, would mean that she wouldn't be entitled to any severance pay at all.

Cause for dismissal is typically very difficult for an employer to demonstrate.  It must show that the conduct it complains of can actually be proven and that a lesser of form of punishment was not appropriate or available. 

It appears that McDougald may have had a severance clause in her contract which would have required the Government to pay her a year's salary if dismissed without cause.  Therefore, the additional damages (almost $400,000) could be made up from her claims that the OLG's treatment and publicity following her termination would effectively prevent her from obtaining other work quickly or at all.

Daniel Lublin is an employment lawyer at the law firm Whitten & Lublin LLP, which focusses on the law of dismissal.  Daniel can be reached at dan@toronto-employmentlawyer.com or through his website www.toronto-employmentlawyer.com. 

There is no right to refuse reasonable directions from a manager. 

However, when those directions amount to a "new job" altogether, the employee may be able to claim constructive dismissal.  This question was put to an Ontario judge in the recent case of Gary Gordon v. Tubs Ultimate Bath Store. 

Employees cannot always be forced to take on additional duties. If those new responsibilities can be viewed as a creating a new position, the employee may be able to reject them and insist on compliance with their original job. That decision, however, must be reasonable.

In this case, the judge ruled that Gordon's decision to refuse directions from his boss was unreasonable and did not amount to a constructive dismissal because those directions were part and parcel of his usual working conditions. 

To read the full synopsis of this case visit my Metro News Columnists' page here.

Daniel A. Lublin is an employment lawyer focussing on the law of dismissal.  He can be reached at Dan@toronto-employmentlawyer.com or through www.canadaemploymentlawyer.com

The U.S. Supreme Court said on Monday it would decide whether privacy rights covered a worker's personal text message on employer-owned equipment, hearing a case about a police officer who sent sexually explicit messages from his department-issued pager.

The justices agreed to review a ruling by a federal appeals court in California that reading the text messages sent on devices provided by the employer violated the worker's privacy rights and amounted to an "unreasonable search" barred by the U.S. Constitution.

As computers, cell phones and text messages devices have becoming standard equipment in the workplace, most employers have told their workers their use of the devices can be monitored. The Supreme Court could decide how much privacy workers have when using such devices.

The decision could have implications in Canada as Canadian courts are increasingly being asked to review employers' decisions to monitor the use of employee email and web use while at work or even away from work, when using employers equipment. 

Generally, Canadian employees do not have a right to privacy when sending emails from company issued BlackBerry's or over the servers.  This means that employers maintain the right to review emails and other electronic messages sent over their servers and, if warranted, impose discipline where employees comments and conduct crosses the line. 

Daniel A. Lublin is a partner with the law firm Whitten & Lublin LLP which provides employers and employees with human resources advice and advocacy.  Daniel can be reached at dan@canadaemploymentlawyer.com or through the firm's website www.canadaemploymentlawyer.com