Being laid off does not make it any easier for an employee to realize what his/her rights are or what next steps should be taken.  Many employees believe severance packages are not negotiable and that after their dismissal they are entitled to only what the employer offers.  This amount is usually no more than their statutory right to severance, found in employment standards legislation; so they sign whatever they are given.

Should you really just sign whatever has been offered?

Often, employers offer what they believe employees will accept, not what they are actually entitled to because they know that statistically most employees will simply accept, happy to get anything at all.  So, it is always wise to ask for more!

Then again, can the employer then change their mind about their offer and refuse to pay, when an employee asks for more?  Toronto Employment Lawyer, Daniel Lublin has recently answered a similar question in his Globe and Mail article Can my ex-employer refuse to pay severance?

He says, if your employer is not playing by the rules it makes your case against them even stronger.

Mr. Lublin explains that when you are laid off without cause, employment standards legislation states that you are automatically entitled to a statutory severance payment based on your tenure.  This is not something that can be taken away and it is not negotiable either.  Even if negotiations are cut off, these payments must still be made and they must be made immediately following your termination.

When it comes to long serving employees, the statutory amounts should never be overlooked and employers are required to provide a more generous severance package than what is required by employment standards legislation.

Courts usually have sympathy when it comes to long term employees, especially if the employer is not playing by the rules.  In any case, the only way you might end up with nothing at all is if you let your ex-employer take advantage of you.

If you have been terminated and want to know if your offer is fair, the best decision you can make is to contact an employment lawyer who can explain and guide you through your negotiation process, making sure that your entitlements are maximized.

Most often, employees considering or expecting to become parents, face concerns about whether they will still have a job to return to after their parental leave is over.

Overwhelmed by new parenthood duties and the possibility of losing their job, it may be harder than you think to find all the necessary information and to know your rights in the event that it happens to you.

Toronto Employment Lawyer, Daniel Lublin talks about common situations of terminations while on parental leave in his latest article published in the Globe & Mail, Can a company terminate someone on parental leave?.

Human rights and employment standards legislation across Canada prohibits termination and adverse treatment because of an employee’s intention to become pregnant, her pregnancy, or for taking a parental leave.

An exception is that an employer can terminate an employee who is on parental leave if the reasons for the termination are unrelated to the leave.  However, employers must show that the termination was unrelated to the employee’s pregnancy or leave, and this is often not an easy task.

Regardless of the reason for a termination during parental leave, employers are required to pay severance to the employee.  However, employers are not required to provide the severance figures to an employee who is still on leave.  Some will agree to provide numbers as a courtesy if required by the employee and where the employer’s decision to terminate has already been made.

This topic is without a doubt, one of the most misunderstood and contentious issues in employment law.  To learn more about your options, refer to our related article, Maternity Leave can thwart dismissal, found on our website.

At the time of termination, employees need to ensure they are treated fairly.  In some cases employers will present them with a release and ask them to sign it on the spot or within minimal days to consider their offer.  Employees need to be responsible for what they do and sign.

In a recent case highlighted by employment lawyer Daniel Lublin in the Globe and Mail, Eric Rubin, who was 63 at the time, had worked at Home Depot Canada Inc. for nearly 20 years when he was suddenly fired in what Home Depot described as a restructuring.  Mr. Rubin was told it was his last day at the company and given a letter confirming his dismissal and encouraging him to sign a release.  He was unaware of what he was actually entitled to, and he therefore signed the documents on the spot, believing that Home Depot’s offer to him was fair.  However, soon after, Mr. Rubin realized that he had made a mistake.

In the court’s view, Home Depot had taken advantage of an older and long-term employee.  Accordingly, the court struck down the release, awarding Mr. Rubin double the amount of severance than he was initially offered, plus his legal costs – an amount more in line with what is considered fair.

In his latest article published in the Globe and Mail,  Daniel Lublin, offers the following advice to any Canadian employee faced with an offer of severance and release:

• Employers do not assess their severance obligations based on what is considered fair.  They make offers of severance based on what employees are likely to agree to, since most people are unaware that they can negotiate or sue for more.  For this reason, most severance packages are negotiable, so ensure that you are receiving a fair offer before agreeing to its terms.
• Tell your employer you need more time to meet with a lawyer or financial adviser to ensure you fully understand the terms of the severance package.  Very few companies will refuse to provide a few extra days to consider an offer, aware that denying this request could cause to challenge any agreement.
• Try to understand the interplay between what the legislation requires and employer to provide in terms of severance and what it is actually providing.  Many severance packages offer employees little more than the statutory minimum, which will almost never be fair.

It is always good to consult with an expert before signing any document since not all stories end successfully, as this one.  The full article written by Daniel Lublin can be read in the Globe and Mail.

A decade ago, employers had an issue with controlling their employees’ online use at work; today the same problem is much wider and stretches to employees’ use of social media profiles.  Every employer hopes for word of their business to go viral, whether it is through a Tweet, Facebook message or blog.  However, a bad viral message can be damaging to the company’s reputation.  How can employers prevent this and can they dictate what employees say or write?

In his recent article in the Globe and Mail, Employment Lawyer, Daniel Lublin writes about a growing concern in today’s society of how your personal social media profile and work social media profile can collide.

Who owns the online profile?  If the profile was created, populated and maintained by an individual and is for his or her personal use, then he or she is the owner.  In situations where social media profiles are created for work or that have business purpose, the profile itself and all of the contents within are owned by the employer, even if an individual or group of individuals were responsible for its popularity and content.

Online posts.  In some circumstances, employers can control what is posted on a social media profile because most employees’ public profiles are directly linked to their employer’s websites or social media profiles.  Therefore, personal opinions can easily be confused with those of their employers.  When this occurs, employers are within their rights to demand that employees remove that content, or possibly lose their job.

Accessing social media accounts.  Prospective employees have no legal obligation to provide his or her social media password and they can readily refuse.  As well, an employer can refuse to hire any candidate that does not comply with their hiring process, subject only to the prohibition against discrimination in hiring based on human rights laws.  Current employees may be subject to a policy (if an employer has one) that permits it to access and monitor e-mail sent from work or away from work but through the company’s servers.  Since employers own workplace computers and the servers they are connected to, they are allowed to monitor them with proper notice.

For more information on this growing issue of social media privacy in the workplace, you can read the full article here.

Luckily, you can!  An article written in the Metro by Daniel Lublin, Toronto Employment Lawyer talks about the following types of changes that can be rejected:

Changed responsibilities.  If you have been hired for a defined role and that role is later changed without your consent, you may be entitled to leave your job and sue for damages as if you have been fired.

What about more work for the same pay?  In a recent case, an Ontario judge found that an employee was wrongfully dismissed when her job doubled but without any increase in pay.

Reduction in compensation.  You can reject pay cuts, however, the problem is that it is not clear how large the pay cut must be, since there are some cases where a five per cent reduction in overall pay could be refused but there are also cases where a 15 per cent decline was permitted.

Changed hours of work.  Your employer cannot change a specific shift or certain hours that have become a customary without your consent.

Harassment or discrimination.  If you objectively show that the workplace was intolerable and there was no other reasonable option but to immediately leave, you can leave work and then sue for damages.

Probation.  Probation period in generally cannot be imposed at their discretion, as a form of discipline.  Unless agreed to or used as last resort.

The full article can be found here, and for some more related articles please visit our web site.

An article written in the Globe and Mail by employment lawyer Daniel Lublin covers just about everything you need to know about severance.  Below are a few myths the article dispels that might surprise you.

Myth #1: You are entitled to NO MORE than the statutory minimum

Unless you are a transient worker, or have signed a pre-negotiated severance amount in your employment contract, severance is negotiable, and you should almost never accept the first offer.

Myth #2: Severance is a straightforward calculation based upon length of employment

Rather, it is calculated based upon the length of time it would reasonably take an employee to find suitable work.  Recently, the Ontario Superior Court awarded an employee 26 weeks compared to the 9 he was initially offered because of a grim likelihood of reemployment.

Myth # 3: Severance is yours to keep, even if you find a new job

Clauses are often present in severance agreements to prohibit what Lublin calls “double-dipping” – getting a paycheck while also receiving severance from your former employer.

Myth # 4: Poor performance effects severance

Unless you have been dismissed for cause, performance has nothing to do with severance and “both stars and incompetents should receive the same payouts if fired.”

Myth # 5:  Employees are owed a “good reason” for dismissal

This is false.  Employers are permitted to fire you just because they don’t like you, permitted (1) Their reason isn’t based upon a prohibited ground of discrimination, and (2) Proper notice or pay in lieu has been provided.

The full article is well worth a read, as it contains a more exhaustive list of often misunderstood facts about severance.  It is important that you are financially comfortable while searching for new work.  Knowing your rights will ensure that you get what you deserve.

The horde of baby boomers primed to leave the workforce presents difficult decisions for HR managers, the most prominent being if and how to terminate long-term employees.  Though keeping them around can mean lower productivity, as Suzuki Canada recently discovered, letting them go can often be much more costly.

The case, Hussain v. Suzuki Canada Ltd. was recently heard in the Ontario Superior Court and should serve as a harbinger to employers considering a strategy of offering the minimum in severance to exiting long-term employees.  Employment lawyer Daniel Lublin reviews this recent case in an article published in The Lawyers Weekly.

The plaintiff, Syed Hussain was an assistant warehouse manager for most of his 36 years with Suzuki, and intended to stay until retirement.  When his productivity declined, Suzuki decided it was time to let him go.  After spending his entire working career in Canada with Suzuki, Hussain’s prospects for finding similar employment within the industry were grim.  Thankfully, he successfully sued for wrongful dismissal and was awarded 26 months severance (compared to the 9 he was initially offered).

The implications of this ruling are significant.  Employers are no longer safe in assuming the cap for damages is 24 months – as the judge reasoned that the combination of factors made Hussain’s (and no doubt others to come) an exceptional one.  Justice Roberts also made the judgment payable by lump sum, only nine months into the 26 month period, having evaluated the chances of Hussain finding suitable employment so low that he could instead garnish the total payment by 1%.  This detail is extremely beneficial to employees, who could otherwise incur further costs proving mitigation of lost income.

Hussain v. Suzuki Canada serves to reinforce an existing trend in the courts to penalize employers for offering the minimum in severance.  Given that we are still in the early stages of the baby boomer exodus, now is the time to strategize and think about exploring creative options.

With the tidal wave of boomers entering their 60s, a surge in age discrimination is inevitable.

These were the words of employment lawyer David Whitten in a recent interview published on thestar.com.  The workforce is aging, and just because you aren’t thinking about retirement doesn’t mean your employer isn’t thinking about making that decision for you.  The problem Whitten paints in the article is that individuals facing age discrimination are often either unwilling to admit it to themselves or too afraid to ask for help – both scenarios end poorly.

He goes on to discuss that employers will often use shady tactics to dispense of older employees, like firing a few younger ones in order to cast a veil over a targeted larger group of older employees.  In order to even the odds, Ontario law has taken on some employee-friendly changes.  For example, we no longer have mandatory retirement, and employees can include human rights complaints within wrongful dismissal claims.

Employees can make these laws work for them by taking a few proactive measures.  Employers are legally obligated to accommodate for age in the same way as they are disability.  The caveat is that you have to tell them – preferably in writing; this way if you are fired for an age-related concern, you have evidence to support your triggering of the employer’s duty to accommodate.

It is important to set aside any feelings of pride or guilt and strike a dialogue with your manager to communicate your needs.  If they choose to ignore your concerns, you have likely been the victim of discrimination and should contact a lawyer.

If you have ever filed a claim with the Ministry of Labour, there’s a chance that you might not like what you are about to read…

Last week in the Metro, employment lawyer Daniel Lublin tells the tale of a recently dismissed employee whose phone call to the Ministry of Labour ended up being anything but free.   

Intent on taking action against her former employer, a woman called the Ministry for information and was encouraged to proceed.  Without questioning the process, she filed her claim, and later found out that it had prohibited her from suing for further damages in court.

There is a disparity between what employees can claim through statutory minimums and common law notice.  Advice from the Ministry is free- and for most people, an easy first point of contact.  But as Lublin points out, people “are unlikely to withdraw their complaint or later pay for a lawyer’s time to obtain a second opinion.”   

Don’t settle for less than you deserve.  If you believe you have a strong case and plan on proceeding, contact an employment lawyer.  

You can read the full article in Metro News at the link below: 

A Ministry Makes the Wrong Move

Employers often draft overly broad and restrictive contracts that are applied unilaterally to employees.  The thought behind it is – bargain for more, and hope for the best.  In most cases this works, but recently two employers found out that playing it fast and loose has its repercussions.

Employment lawyer Daniel Lublin calls this the “kitchen sink approach to contracts” in his weekly column in the Metro.  One of the two cases he discusses in his most recent article could have some serious implications for Canadians.

In 1992, Tom Mason signed a contract that contained a provision restricting his ability to work with his company’s clients for a period of one year following his departure.  When Mason was fired 17 years later, he challenged the clause in court, and came up empty-handed.  As Mr. Lublin puts it, “Employers collectively sighed in relief since most court cases strike down these clauses based on the courts’ interpretation of what is fair, and not what the contract actually states.”  Thankfully for Mason, the Court of Appeal had a different opinion and declared the contract invalid.

Employers should take note that in cases of wrongful dismissal, the courts may side with the employee when deciding whether to uphold post employment restrictions.  Lublin says that this could result in employers paying out more in severance to avoid the negative fallout from a potentially void contract.  Hopefully, it will also lead to due consideration when drafting contracts to begin with.