Toronto Employment Lawyer

Employers can make mistakes too

Despite workplace laws favouring their legal position, management errors made in the administration of human resources can put a company's name on the front page of a Statement of Claim.

Here are 5 pivotal employment law mistakes that a company can make;

Bad Faith Dismissal - In 1997 the Supreme Court ruled that the manner in which an employee is terminated can attract additional liability. On average, employers have been forced to pay upwards of three additional months of salary, where the employee proves that pre- or post-termination conduct was unfair, insensitive, humiliating, or unreasonable. Due to this broad panoply of behaviour meeting this threshold, bad faith claims appear in over half the workplace lawsuits that I manage. I strongly advise that employers without experience in handling terminations seek out advice or risk paying damages in excess of the true value of the claim.

Resignations - The law of resignation requires clear and unequivocal actions or statements demonstrating and intention to voluntarily leave. In a recent B.C. case, the judge noted that employers have an onus not to pounce on an intemperate utterance of an emotional employee. The lesson for employers is, if you want to ensure that an employee has actually resigned, ask them to take their time and confirm intentions in writing.

Paying only the statutory minimum - Canada provides the minimum amount of notice or pay terminated employees are to receive. Aside from some other negotiated amount, most employees are entitled to the more generous "common law" severance payments imposed by the courts. As judges have historically agreed, employers who are only prepared to pay a fired employee the minimum amount must also be prepared to hear from his or her lawyer. Employment standards legislation across

Failing to conduct an investigation - If you want to rely on misconduct as grounds for dismissal, allegations must be thoroughly investigated by a trained and neutral party. The allegations should be put to the employee, who should be given the benefit of time and an opportunity to respond. In one notorious case where the outcome of an investigation was decided in advance, not only was the employee awarded wrongful dismissal damages and his legal costs, but the employer was forced to pay additional damages for the humiliating manner in which the dismissal was executed. While these guidelines appear simple, the courts have increasingly chastised bogus or perfunctory investigations.

Not properly documenting discipline - If you want to rely on misconduct as grounds for dismissal, demotion, or even a negative performance review, Canadian courts require that progressive or corrective means should be used first. Managers should send letters to employees clearly identifying areas of concern, offer suggestions for recovery and set out the consequences of an inability to improve.

Daniel A. Lublin is a Toronto Employment Lawyer specializing in the law of wrongful dismissal.  He can be reached at dan@toronto-employmentlawyer.com or visit www.toronto-employmentlawyer.com

Tread lightly as an employee

In my previous item, I offered my five favorite employer errors. Here are my top five mistakes employees  make at work:

Not reviewing an employment contract - Not many clients I encounter want their employer to be able to demote them, cut their salary, dismiss them without notice, or even banish them to a remote location. However, employment contracts are written by the employer and are usually loaded with language protecting the company's own legal position. Despite laws that construe ambiguous terms in the employee's favour, if the contract has been reviewed and signed before employment begins, an employee is often held to the deal that was made, whether it is fair or not.

Protest disciplinary letters or negative performance reviews - Unless you challenge discipline or negative appraisals, your employer's view of events lurks undisputed in your human resources file, waiting to be used should the need arise or if your employer is predisposed to build a case for cause.Unless you agree with the cants and content of the discipline, respond immediately and assert your view of the events and any mitigating factors.

Negotiate termination packages - While employees are seldom deprived of the opportunity to meet with a lawyer - and often are encouraged to do so - not all heed this advice. My initial demand letters on behalf of dismissed employees usually seek five or six concessions. A stark contrast to to average one or two that are known by employees prior to meeting with me.

Don't rush to judgment - If you have a dispute with your employer, consider a mediation or other sort of resolution to solve the problem. A British Columbia court recently ruled that cause for dismissal is developed when an employee has filed a lawsuit against his or her current employer. Employees should keep in mind that a sincere intention to resolve a dispute at the outset will pay dividends in a future legal action.

Misusing email and internet - Employers own the communications equipment and systems and can review on-line habits at their pleasure. If you want assurance that you're not crossing the line by committing such actions as checking your personal email, facebook account, or investment portfolio, employees should review all computer policies in place and use discretion when loggin on.

Daniel A. Lublin is a Toronto Employment Lawyer specializing in the law of wrongful dismissal.  He can be reached at dan@toronto-employmentlawyer.com or visit www.toronto-employmentlawyer.com

Think before you let your fingers do the talking

Personal Digital Assistants (PDA's), such as BlackBerrys, have grown in popularity. So much so, that employer's are beginning to regulate the use of these devices at and even away from work. The reason: employees are confusing their privacy rights with freedom from workplace consequences.

When a PDA is provided by an employer or accessed through it's network, employees should have no reasonable expectation of privacy. Therefore, when personal use in permitted, employees should concern themselves more with losing their jobs - instead of simply losing unlimited access to their PDAs.

Regarding personal use, employees should keep in mind the following;

Amongst other actions, checking your Facebook account, sport scores, and flirting with friends over instant messaging while at work can be tantamount to theft of an employer's time. This may amount to cause for dismissal.

Criminal laws can be invoked if employees harass or intimidate coworkers via their BlackBerry. Don't forget, PDAs normally keep a record of messages sent and received.

While not reported in Canada, there are currently claims in U.S. courts made by pedestrians injured by motorists driving while messaging on their PDA.

Employers maintain the legal right to discipline or dismiss employees for off-duty conduct. So make sure you're not the employee texting inappropriate jokes to a colleague during drinks after hours.

Rapid messages  fired off from BlackBerrys tend to be less formal and thoughtful. Employees should keep in mind that they are liable for advice given, even if it is misconstrued because of a poorly drafted PDA email.

Many larger organizations have legal requirements that mandate the storage of all business communications. So a text message to your pal via your work BlackBerry can find their way into your employer's inbox too.

Employees should thoroughly review and follow workplace computer and internet misuse policies and presume they apply to your PDA. Exercise caution with communicating with or providing advising clients or colleagues and allow common sense to prevail.

To avoid legal action, employers who have been doling out BlackBerry's to workers might want to consider implementing a workplace-wide policy regarding the PDA's use. Recent class action suits against employers for unpaid overtime has initiated widespread fear that PDA use after work hours will be the next jumping off point for future class action suit. See Tresa Baldas' article from the National Law Journal for more information on this. 

Daniel A. Lublin is a Toronto Employment Lawyer specializing in the law of wrongful dismissal.  He can be reached at dan@toronto-employmentlawyer.com or visit www.toronto-employmentlawyer.com

PwC ponies up cash owed to workers for unpaid OT

The world's largest accounting firm, PricewaterhouseCoopers LLP, announced it will pay retroactive overtime to its Canadian staff. The move will see current and former employees finally receive compensation for unpaid overtime worked. The payment structure varies, however, it is unavailable to managers, chartered accounts, as well as other who match the criteria outlined in PwC's letter to employees seen here.

The announcement comes on the heels of two pending unpaid overtime class action suits against major Canadian banks CIBC and Scotiabank. For more information about the CIBC and Scotiabank suits, see my article Scotiabank becomes the newest class action defendant.

Daniel A. Lublin is a Toronto Employment Lawyer specializing in the law of wrongful dismissal.  He can be reached at dan@toronto-employmentlawyer.com or visit www.toronto-employmentlawyer.com

Sales rep launches lawsuit after 'team-building' exercise at Utah company leaves him traumatized

Chad Hudgens likely never thought he would discover the effectiveness of waterboarding first hand. Moreover, he likely never thought he would make this discovery at work as a sales person for Prosper Inc.

Volunteering for an unknown "team-building exercise", Hudgens was laid on his back in front of his coworkers in the company boardroom where his manager, with the help of other staff, held him down while water was poured over his mouth and nose. The exercise was to show that to be an effective salesperson, one must have to fight for the sale as hard as Hudgens fought for air.

It appears that the waterboarding incident was the last straw for Mr. Hudgens.  He is seeking damages against his former employer and has a laundry list of unreasonable "coaching" tactics used by Prosper's Sales Manager, which include forcing salespeople to stand at if they fail to meet sale quotas for the previous day.  The Manager also threatened to draw a moustache in permanent marker on the face of sales people for "negativity," Hudgens said.  Hudgens' lawyer has characterized the tactics used by Prosper's sales manager as "torture".  Counsel for Prosper disputes this, calling Christopherson (the Sales Manager) a "nice, sensitive guy."

Hudgens' case is based in Utah.  In Canada, the doctrine of constructive dismisal applies, which states, among other things, that it is a implied term of the employment contract that employee's will be treated with civility, decency, respect and dignity.  The breach of this term, on an objective basis, may permit the employee the resign and then sue for wrongful dismissal damages, having been able to consider the employer's actions as tantamount to dismissal. 

The full article, found today in the Toronto Star, can be found here.

Daniel A. Lublin is a Toronto Employment Lawyer specializing in the law of wrongful dismissal.  He can be reached at dan@toronto-employmentlawyer.com or visit www.toronto-employmentlawyer.com

Labour Law in China: A growing sector

The National Post published an article today titled; China's 'barefoot' labour lawyers. It describing the rise of "citizens' agents", assisting some of China's estimated 150 million migrant workers regarding their labour rights.

The article claims the state-backed All-China Federation of Trade Unions has done little to protect low paying labourers. This situation has allowed the citizens' agents to develop a market of low cost legal services to assist workers. The citizens' agents, often called 'barefoot' labour lawyers, have seen such high demand that licensed lawyers are now beginning to enter the labour law market as well. Their combined efforts have led to significant progress with respect to recognizing workers' rights. 

Don't be too quick to sign

This is the cautionary tale of two cases that reveal the fate of employees too quick to sign their names...

In Barr v. Pennzoil-Quaker State Canada Inc. the court ruled that the deal was less than what Barr could have received and was "unfortunate". However, it was not so bad that it was prepared to set it aside.

In Titus v. William F. Cooke Enterprises senior Ontario lawyer Douglas Titus was dismissed by William F. Cooke Enterprises and immediately agreed to its offer of severance. Titus read the termination documents at the meeting, including the release, which states in bold, capitalized letters: "I have read this document and I understand that it contains a full and final release of all claims ... I am signing this document voluntarily."  Titus signed his name and left with a cheque in his pocket.  Later on he sued, claiming the release was signed under duress and the deal he received was less than fair. But Titus, a lawyer for more than 20 years experience, with self-professed experience in employment law, couldn't convince the court that the deal he signed was so unfair it should be invalid.  According to the court, "with eyes wide open", he declined both opportunities, preferring to immediately accept the package instead.

These cases provide a stark message for employees when confronted with an offer of severance on an ironclad release: Fair or not, seldom will a signed document be set aside. Employees can avoid this result by observing the following advice:

Like any commodity, a termination package is usually negotiable. Seek specialized counsel before signing your name.

Duress, coercion or unconscionability are not easily proven - especially when the employee is given time to consider the offer. 

Ask for more time or the opportunity to meet with a lawyer if the terms of an offer or release are unclear.

Daniel A. Lublin is a Toronto Employment Lawyer specializing in the law of wrongful dismissal.  He can be reached at dan@toronto-employmentlawyer.com or visit www.toronto-employmentlawyer.com

Anything goes with job contracts

Canadian employers often protest that workplace laws favor their employees. My view is otherwise.

Most employees lack the necessary bargaining leverage or sophistication to renegotiate unfavorable contract language. Should confrontation ensue, a well-drafted employment contract creates an uphill battle for the employee.  That being said, not all written promises will be enforced.

Employees faced with an ironclad agreement may argue as follows:

If the employer applies duress or coercion, the agreement may be struck down.

In one case that I am handling, the employee claims that she was denied the opportunity to speak to her lawyer, despite requesting it, and was further told a demotion would be forthcoming if she did not sign her name. If the judge agrees that these pressures amount to a lack of consent, the agreement will be set aside.

Where an agreement forms such a departure from commercial morality, a court may intervene to ensure fairness.

In limited cases, a deal may be set aside where the party with stronger bargaining leverage preys on the weaker party, usually the employee, to create such an inequitable agreement that it would be substantially unfair to uphold. Beware: improvident deals between parties on unequal footing may be unfortunate, but unless the deal is offensive, it will be enforced.

If an agreement is illegal, it will be invalid.

Employers often attempt to oust their obligation to pay lengthy severance by drafting a contract that provides less severance that the minimum standards found in provincial legislation. In these cases the contract, or that portion, will be void.

Agreements must have proper "consideration" to be enforced.

Once a deal has been agreed to, it cannot be changed unless the employer offers extra value (a raise, bonuses, etc.) so the employee may decide whether to accept that deal. For example, Trusty Francis accepted an offer of employment from CIBC. On his first day he was presented with a number of forms and agreements that attempted to limit his entitlement to three months' salary if he was fired. The Ontario Court of Appeal found Francis' employment contract was consummated when he agreed to the first offer of employment and, because nothing of new value was given when he showed up at work, the agreements he was given to sign were unenforceable. Otherwise, the Court reasoned, an employer could unilaterally impose new terms of employment at any time and an employee would be without leverage to negotiate.

Contract language must be clear.

Where the language in the contract is not sufficiently clear, courts will construe the language in favor of the person who did not draft it. Customarily, the employee received the benefit of this rule.

Severability provisions may not always be effective.

Many employers insert severability provisions into contracts stating if a part of the contract is found void, the court should carve it out of the contract. These contracts risk being foiled in their entirety, as courts naturally refuse to rewrite the bargain that was previously made.

Daniel A. Lublin is a Toronto Employment Lawyer specializing in the law of wrongful dismissal.  He can be reached at dan@toronto-employmentlawyer.com or visit www.toronto-employmentlawyer.com

More on unpaid overtime class action suits - Law Times Article

Unpaid overtime. It is the issue at heart in two pending class action suits against major Canadian banks, CIBC and Scotiabank.

The Law Times recently published an article updating readers on the current situation regarding unpaid overtime and the major banks.  I was quoted in the article in respect of the advice I'm providing to employees and the fact that I've seen an increased interest in overtime disputes since the class action boom.  In essence, employees need to diligently document their evidence that they have worked overtime without compensation.  This can be documented in calandar enteries, emails, written notes, docket enteries, of even a compilation of sticky notes. 

Daniel A. Lublin is a Canadian employment lawyer practicing exclusively in the law of wrongful dismissal. He can be reached at dan@toronto-employmentlawyer.com or through his website, www.toronto-employmentlawyer.com.   

Lawyer faces criminal charges after clients act on his advice

New York lawyer Felix Q. Vinluan, has been criminally charged on 13 counts after 10 nurses quit their job, allegedly on his advice.

The charges stem from an April 7, 2006 incident in which 10 clients of Mr. Vinluan mutually resigned from their position with Sentosa Care, a Long Island health care facility they worked for. The district attorney's office said the mass resignation endangered 6 critically ill patients, 5 of which were children -- because the resignations were not provided with advanced notice. 

The workers, who all immigrated to the United States from the Philippines in 2005, held at-will contracts. Vinluan claims, and his client's attest, that he simply advised them that as an at-will employee, their employment could be terminated at anytime by either the employer or employee.

The County D.A.'s office claims that Mr. Vinluan went beyond his normal scope of giving advice and instead, encouraged the workers to submit their resignation. District attorney Lato said in a recent interview "If all Mr. Vinluan did was advise, rather than 'encourage,' he wouldn't have been charged."

Vinluan asserts he is a target stemming from collusion between Sentosa's attorney's and County D.A. Spota after claims of a "secret meeting" between the two have surfaced. He further iterates Sentosa cannot afford to lose out on its pool of immigrant workers and is afraid of other worker's doing the same as his 10 clients.

Canadian employees are not subject to at-will employment and any attempt to insert language into their employment relatinship that provides less generous severance that the minimum employment standards is invalid.

The issue of wrongful resignations is more interesting.  Similar to the employers' obligation to provide advance notice of termination, employees must provide advance notice of their resignations, assuming there is no such contractual term that specifies another amount.  The amount of notice is dependant on how long it would reasonably take the employer to find a suitable replacement.  While wrongful resignation lawsuits in Canada are rare (proving a tangible economic loss is the reason), employees must still be careful.   

Even more interesting is whether or not Mr. Vinluan will be convicted.  The full article, found on Law.com, can be read here.

Daniel A. Lublin is a Canadian employment lawyer practicing exclusively in the law of wrongful dismissal. He can be reached at dan@toronto-employmentlawyer.com or through his website, www.toronto-employmentlawyer.com.