Social Media Privacy Policy in the Workplace

| November 13th, 2017 | No Comments »

Social media and privacy in employment law is an evolving and developing concept. The pervasiveness of the internet and the worldwide access to online content greatly diminish an individual’s expectation of privacy when posting online content in the eyes of the law. This is because anyone can access online content with little effort.

How does this relate to the workplace?

In general, once an employee posts content on social media, they should reasonably expect that others may see the content, including their employer. This applies whether a social media account has privacy setting enabled or not. Thus, a worker cannot claim that an employer has violated their privacy if faced with repercussions for their online conduct. In other words, any online content posted by an employee that violates workplace policy can be subject to disciplinary action. To aid employees’ understanding of what is acceptable and unacceptable with regards to content they post, employers should develop clear social media policies and distribute it to their employees.

When implementing social media policy, it is necessary to take a wholesome approach. Social media policy must be consistent with existing laws and policy in the workplace. Employers must consider how published social media content that is viewable to the public relates to each existing policy in the workplace. This may take on many fronts, such as breaches of harassment policy, confidentiality, violence (ie. bullying), and even behavioural requirements for workers occupying specific roles.

For instance, suppose a worker posts confidential information, such as names of clients, on a social media account with privacy enabled. Workplace policy regarding confidentiality and social media should make it clear that anything in violation of confidentiality policies on social media will be subject to the disciplinary procedures in place.

Overall, once information that is posted online becomes publicly accessible, its ramifications as it relates to one’s workplace and duties of employment are subject to existing workplace policy and law.

What Factors will Courts Consider in Determining Inducement?

| November 7th, 2017 | No Comments »

Employers may have their recruiters aggressively pursue highly skilled employees, as this can greatly aid in the success of an organization. This includes making promises in order to entice allure the candidate to accept the job offer. The issue of inducement, however, arises when an employee has been terminated. The courts may award the former employee an increased severance package in the form of notice pay (pay equivalent to the amount of time needed for the employee to find a comparable job) if it is found the employee accepted the job offer due to being induced.

In general, there are a few factors the courts will look at when determining whether an employee was induced. They include:

  1. Whether the former employee was a former business owner before being pursued;
  2. The level of security of the employee’s previous job;
  3. Whether the employee turned down better job offers;
  4. Whether the employee was required to relocate (unless the employee had a history of frequently relocating);
  5. Whether the employee applied for the job or was actively pursued.

Although inducement is not illegal, employers must ensure that the promises made are able to be kept. If a promise that is made was necessary to have the employee accept the offer, it is important that such promises are represented accurately and fulfilled.

The goal of enhanced notice pay is to mitigate the damages suffered by employees while they search for comparable employment. If you are an employee and believe you have been induced, only to have your employment terminated, seek the assistance of an employment lawyer in order to receive fair compensation.

Frustration of Contract vs. Just Cause: What is the difference?

| November 1st, 2017 | No Comments »

There are various ways an employer may end an employment relation. An employer may end a contact by offering an employee advanced notice or equivalent payment of wage and benefits required under legislation or common law. Another way is dismissing an employee for just cause or by establishing the contract has been ‘frustrated’. In each of these scenarios, there is no payment or notice required. There is an onus on the employer to prove there is just cause to dismiss or that the contract has been frustrated, which makes it important to understand the difference of each principle.

The principle of ‘just cause’ requires an employer to show that an employee has done wrongdoing to the point that continued employment is unfeasible. For single instances of wrongdoing, the wrongful act must result in violating an essential characteristic of the employment relation. For instance, if a mortgage broker was found to commit mortgage fraud, this would undeniably violate an essential element of trust required between a mortgage broker and the brokerage firm (employer). Another scenario of just cause is where an employee has repeatedly failed to correct an undesirable behaviour after several corrective measures have been taken by the employer. This must include a series of progressive discipline consisting of, for instance, a verbal warning, then written warning, paid suspension and then termination, with each stage specifying the wrongful behaviour and next possible steps of discipline.

Conversely, frustration of contract results when an employee no longer is able to perform as intended when the parties each entered into the employment agreement. The changes in performance must be significant in order for dismissal to be lawful. Such a scenario may take place when an employee has fell ill to the point where he/she cannot perform the essential duties of the job. To establish frustration of the contract, analysis of the job duties and nature of the frustration must be carefully considered. For instance, if the employee occupied a distinct position with no other employees occupying a similar function, a long term absence will cause more frustration than if there were many employees able to cover the tasks of the employee during the absence. Whatever the case may be, careful examination and consideration must be given. Always seek services from an employment lawyer as errors in legal obligations may result in significant costs and harm to each party.

Are you required to pay your employer a penalty if you resign?

| October 25th, 2017 | No Comments »

Question:  I am a registered nurse.  My employer has created a contract stating I must repay $50,000 if I leave before 5 years and each year of employment the amount to repay will decrease by 10k. (Year 1 I owe 50k, yr 2 i owe 40k…yr 5 I owe 10k).   their reasoning was that they have lost 2 nurses before me both staying only 2 years and they will have to spend their time (at least 1 yr) to train me hands on and this time is valuable as are the training seminars that they will send me to.   Is this enforceable if I leave before 5 yrs?

Answer: If you are a unionized employee, your first step should be to go to your union representative to discuss why your employer would ever think to attempt to include such a severe stipulation in your agreement.

If you are not unionized, let your employer know that the clause is unenforceable as it would act in restraint of trade. Restraints of trade are viewed with justifiable suspicion by the law. The clause in practice would in effect bind the employee to the employer because the shorter the employee worked, the less likely they would be to leave the employment of their own free will knowing that they would have to pay back a significant amount of money to the employer.

In addition, in the eyes of the law, the clause is viewed as a “penalty” and would be considered unconscionable, which simply means that the bargain is too unfairly one side and is therefore unreasonably excessive. Courts have consistently invalidated employment contract provisions that are unconscionable. In this scenario the fact that the employee is required to pay their employer if they leave before five years certainly is unreasonably excessive and unenforceable given that there is no rational connection between the five year repayment requirement and the cost or time to train the new employee.

Can an employer impose a longer probationary period than 3 months?

| October 17th, 2017 | No Comments »

It is common knowledge for employment probationary periods to last for three months from the commencement of the employment relation. Under minimal standards employment law (for example, the Employment Standards Act in Ontario), employers do not owe any notice or pay in lieu before 90 days. This is often believed to constitute the probationary period. Minimal standards legislation, however, does not contain any provisions on probationary periods, and as such, they may extend past 3 months.

Employers that implement probationary periods past 3 months must consider additional factors. If the probationary period extends past three months, employers will at the least owe an employee a week of notice or pay in lieu for termination of the employment contract. In the event that no termination clause is agreed upon or the clause violates minimum standards law, ‘reasonable’ notice established through common law will apply, which may entitle the employee to considerable more notice or pay in lieu. Employers that wish to limit the termination pay to the legal minimum of 1 week between 3 -12 months of employment would require a termination clause that complies with minimal employment legislation.

It is also advisable to include the probationary period within the employment contract. This way it can be shown that both parties contemplated an extended probation period and that it was mutually agreed upon. Otherwise, an extended probationary period may constitute a breach of contract by the employer.

Always seek services from an employment lawyer when seeking to implement the aforementioned clauses and limitations.

Would I get paid my commission if I left the company?

| October 11th, 2017 | 1 Comment »

Question:  If I leave this company in around a month, would I still get paid my commissions from the deal I just won over the next 3 years? I’ve been working for a company for around 3 years, I have been made a better offer at another company and thinking about quitting my job and joining this new company.  I have around $400,000.00 in commissions from a large job I just landed that will be paid out upon monies received over the next 3 years from now.

Answer: This is an excellent question.  Many employees wonder – what happens if I leave my job right before I am supposed to get my bonus?  Is there any way to get the bonus?  The answer is maybe.  It will depend on the specific facts of your case, and whether there are any written documents that address your commissions or bonus payments (e.g. an employment contract, an Annual Incentive Plan, etc.)  Other important considerations will include:

  • Whether you are leaving the company of your own accord (as opposed to having your employment terminated),
  • How your commissions or bonus payments are earned or calculated (have you already earned the bonus?  does the company use a specific formula, or is the whole payment subject to discretion?), and
  • Are there any documents which address what happens to your bonus or commissions if your employment ends?

One of our lawyers can review your situation and let you know if, and how, you can claim your commission payments even AFTER you have left the company.  You do not necessarily have to forfeit your bonus or commissions just because you get a new job before it is paid.

Terminating an Employee who has Submitted an Extended Notice to Quit

| October 10th, 2017 | No Comments »

Employees owe their employers a notice period when intending to quit, just as an employer owes an employee notice when seeking to terminate an employee. This ensures each party has time to adjust to changes without suffering too much hardship. When an employee submits a notice period that is considerably lengthy, however, employers may wish to end the notice period early. There are a few things for employers to consider when faced with this situation.

An employer cannot end the employment relation immediately after receiving a notice to quit from an employee. In particular, when receiving a lengthy notice, such as 3 months, for instance,  employers that dismiss an employee early may be faced with litigation for wrongful dismissal. Absent of a termination clause within the employee’s employment contract, employers must give ‘reasonable notice’ established through common law in order to end a lengthy notice period given by an employee. Common law considers the employee’s length of employment, skill level, whether or not they were in a managerial position, and so on. The intent of reasonable notice is to allow the employee enough notice time to gain comparable employment, which is why senior, highly skilled employees will be owed more notice than lesser skilled employees. Employers seeking to shorten a lengthy notice period given by an employee, therefore, absent of a termination clause, must offer common law notice of termination or pay in lieu to end the employee’s notice period early. It is important to ask an employment lawyer what an appropriate length of notice would be, as each scenario will vary in accordance to the facts.

Much of this uncertainty may be avoided if the employee is subject to a termination clause within their employment contract. It is advisable to have a legal expert draft such clauses, as it must comply with minimal standards legislation to be enforceable. If found unenforceable, common law notice will apply.

Resignation Notice: What are Employers’ rights and Employees’ obligations?

| October 4th, 2017 | No Comments »

Question:  I work for a Bank as Project Manager. I was hired as a contractual employee on a fixed salary for two years ending in December. My employment letter states that a four-week notice is required if I resign.  My manager told that I should look for a change as Bank may not be able to renew the contract.  I found a new job and have submitted my resignation with two weeks’ notice. Can my employer detain me for the remaining two weeks or deduct my salary in lieu of two weeks of notice?

Answer:  Many employees expect their employer to provide them with reasonable notice before their employment is terminated.  But few realize that the obligation to provide notice is a two-way street: employees are also required to provide their employer with prior notice of their intention to resign.  Under employment law, the employee’s failure to do so constitutes a “wrongful resignation.”

Contrary to popular belief, employees generally cannot resign whenever they wish by simply providing two weeks’ notice.  Rather, the length of notice an employee has to provide will usually be set out in an employment contract.  If there is no such contractual requirement, it will depend on the employee’s position, responsibilities, tenure, and the time it would reasonably take the employer to find a replacement.  Should an employee resign without providing the full notice of resignation they agreed to, the employer is entitled to sue for wrongful resignation.  Few employers follow through with this, however.

In your case, since you originally agreed to provide your employer with four weeks’ notice of resignation, leaving on only two weeks’ notice may have legal consequences.  While your employer cannot force you to work the remaining two weeks, or deduct your salary for those two weeks (unless you clearly agreed to that in writing), it may sue you for damages for wrongful resignation.  Specifically, your employer may try to recover any losses it suffered as a result of you leaving on short notice, including lost sales, the costs of hiring your replacement, and the cost of overtime worked by other employees.  You should consult an employment lawyer for specific advice about your legal options.

Ending Fixed Term Contracts: Is a typical severance package sufficient

| October 2nd, 2017 | No Comments »

In the case of Howard v. Benson (2016), the Ontario Court of Appeals cleared up any uncertainty regarding employers ending fixed-term employment contracts prematurely. In the case, the court ruled that fixed-term employment contracts require employers to pay the employee the reminder of what would have been earned had the contract not been ended prematurely. In other words, a typical severance package or notice is not sufficient. There is an exception, however. For fixed term contracts that contain a termination clause, the provisions of the clause would apply given it complies with minimal standards legislation.

Given recent developments, employers are held to rigorous standards when drafting such clauses as any uncertainties in language may render the clause invalid. This makes it imperative for employers to seek legal assistance when implementing termination clauses within fixed-term employment contracts. In the event the clause is found unenforceable, the balance of the contract would be owed to the employee.

Employers should also be aware that an employee’s duty to mitigate damages does not apply when the employer decides to prematurely end a fixed term contract without a termination clause. Normally, if an employee does not mitigate damages by searching for comparable employment during the notice period, the courts will award less in damages to the employee.  But in the case of fixed-term contracts, employers will owe the remaining balance of the contract regardless of the employee’s efforts to mitigate damages. This makes it all more important for employers to implement a termination clause. Always seek the assistance of an employment lawyer when implementing termination clauses within fixed-term contracts to ensure the clause is enforceable if challenged.

How Does an Employer Legally Alter an Existing Employment Contract?

| September 29th, 2017 | No Comments »

Unilateral changes to an employee’s contract are not legally binding. In the event that an employee would dispute such a change, there is a good change the employee will be successful. As an employer, however, there may be instances where an important business goal or objective depends on alterations to employees’ existing employment contracts. There may, for instance, be a desire to alter compensation schemes so that incentives match projected business goals. Whatever the case may be, there is only one way to change an employment contract legally.

In order for an employer to change an employee’s employment contract, the employer must give the employee ‘consideration’. This legal term simply means an exchange of a mutual benefit. The simplest way to offer consideration would be to give the employee a sum of money for agreeing to the new terms of the contract. There are other things an employer can offer other than money. As long as it is a benefit to the employee, the exchange should meet the requirement of consideration. Some examples may include enhanced benefits, a promotion, or an increase in vacation time.

In addition to consideration, timing is also key. Employers must offer the consideration at the time the contract is signed and allow the employee a reasonable time to consider the offer. Employers must also clearly communicate the end the existing contract and the start of the new contract. It is important that these legal requirements are met so that employers are not faced with unenforceable contracts. Always seek the assistance of an employment law expert when seeking to change existing employment contracts.