Proposed Changes to Labour and Employment Legislation

| May 31st, 2017 | No Comments »

The Ontario government has announced its intention to introduce several widespread reforms to labour and employment laws in the province.  The reforms, which will be set out in The Fair Workplaces, Better Jobs Act, 2017, are meant to strengthen legal protections for workers in Ontario.

New Minimum Wage:

The proposed reforms would see minimum wage increase to $14.00 by January 1, 2018, and increase again to $15.00 by January 1, 2018.  The special minimum wages for liquor servers, students under age 18, hunting and fishing guides, and homeworkers will increase by the same percentage as minimum wage.

Penalties for Incorrect “Independent Contractor” Classifications:

The new legislation attempts to discourage employers from misclassifying employees as independent contractors by setting out penalties such as prosecution and monetary penalties.  The proposed scheme would require employers to prove that an individuals is not an employee, if that individual disputes their status.

Expanded Leaves of Absences

Under the proposed reforms, employees would be entitled to a new type of 104-week unpaid Leave for Death of a Child.  Employees would remain entitled to a separate 104-week unpaid leave for Crime-Related Child Disappearance.  Family Medical Leave would be increased to 27 weeks in a 52-week period.  Employers would be prohibited from requesting a sick note from an employee taking a Personal Emergency Leave.  Finally, all employees would be entitled to 10 Personal Emergency Days per year, and two of those Emergency Days must be provided with pay.

Proposed Protections for Employees’ Schedules:

  • Employees would have the right to request schedule or location changes after having been employed for three months with the same employer without fear of reprisal.
  • Employees can refuse to accept shifts without reprisal if their employer asks them to work with less than four days’ notice.
  • If a shift is cancelled within 48 hours of its start, employees must be paid at least three hours at their regular rate of pay.
  • Employees who regularly work more than three hours per day, but upon reporting to work are given less than three hours, must be paid three hours at their regular rate of pay.
  • When employees are “on-call” and not called in to work, they must be paid three hours at their regular rate of pay for each 24 hour period that they are on-call.

Author: Simone Ostrowski, Whitten & Lublin

My Business is Suffering: Can I Change Employee Compensation Schemes in an Attempt to Save the Business?

| May 24th, 2017 | No Comments »

Employee compensation is one of the most fundamental aspects of an employment contract. In most cases, a fundamental change in an employment contract would result in damages if litigated by the employee. An employee subject to such changes could claim ‘constructive dismissal’, which means that the employee’s employment terms were altered substantially enough to force him/her to resign.  The employee can then seek damages for wrongful dismissal.

There are exceptions, however, that would not typically trigger a constructive dismissal. In an attempt to save the business, small changes to all employees under the business will normally not warrant a constructive dismissal and would therefore be legal. Such changes should align with the goal of saving the business. For instance, a change from profit sharing to commission for a large group of employees may allow a business to be more profitable, thus being consistent with the goal of saving the business. The change should be minimal and reasonably necessary to save a struggling business. To illustrate this, consider the case of Pullen v. John C. Preston Ltd (Preston Ltd).

Pullen was hired by Preston Ltd. in 1979 as a sales manager. His base salary was $30 000 per year plus some profit sharing. Preston Ltd. was experiencing significant financial difficulties during hard economic times. Preston Ltd. reduced Pullen’s base salary by $3 000 and changed Pullen’s profit sharing compensation to a commission based compensation scheme. Further, Preston Ltd. also changed Pullen’s job description, leaving Pullen to feel as though he was a salesman rather than a manager. Pullen left his employment and claimed constructive dismissal. The court ruled that this was not constructive dismissal. Not all of Pullen’s managerial duties were taken away, and the changes to Pullen’s compensation were viewed as genuinely necessary in light of Preston Ltd.’s financial struggles.

This case shows that changes to compensation can be made while a company faces financial difficulties. However, financial difficulties must be severe enough to require changes to employee compensation schemes in order to save a business. When dealing with a similar situation, employers must be careful as changes to compensation is a fundamental term of an employment contract. It is important to seek advice from an employment law expert, especially when seeking to implement such changes to a large group of employees. Whitten and Lublin Employment Lawyers have the employment law experts to assure you are in legal compliance and do not suffer additional hardships due to costly litigation during tough financial times.

Unwritten Terms of Employment Contracts

| May 23rd, 2017 | No Comments »

Contracts- Implied Terms:

It is not uncommon for terms of employment between workers and employers to be unwritten. Disputes between an employee and employer may arise over past verbally-agreed-upon terms, established unwritten practices, and more. This can result in litigation and unseen costs resulting from workplace conflict. In general, the courts will attempt to determine what terms would have been agreed to between the parties if they were to produce a written contract. This is done by examining the common practices within the workplace, interactions between the employee and superiors, and so forth. Employees and employers also have duties that the courts established through common law, whether or not it is in writing.

Common Law Employer Duties:

Employers have a duty to pay their employees. There must be a regular pay period set by the employer, and this means that employees are not to be paid in arrears. The law recognizes the inherent power imbalance between employees and employers, and paying in arrears would subject employees to too much control. There are fines and penalties associated with failing to establish a regular method of pay – weekly or biweekly is most common.
Employers also have a duty to provide employees with a safe workplace and equipment. If an employee suspects they are being put in harm’s way, then they have the right to refuse any work they believe is unsafe. There are protocols for this under the Ontario Health and Safety Act. This includes the employee first notifying a supervisor, the supervisor then eliminating the hazard to the employee’s satisfaction, and, if no resolution is agreed upon, an inspection by the Ministry of Labour to determine if there is a hazard.

Employers are also obligated to provide notice or pay in lieu in the event an employer wishes to terminate an employee. This pay or notice is based upon an estimate of how long an employee would need to find comparable employment.

Common Law Employee Duties:

Employees have a duty to obey. This is fundamental to the employment relationship, as workers are providing their service in exchange for pay. Willful disobedience can lead to a summary dismissal, which means that the employer can terminated the employee without severance pay or a notice. The exception to the duty to obey is when an employee is asked to do something illegal or perform work that is unsafe. Employees also have a duty to exercise skill and care while doing their job. This includes using the skills required and also not being negligent while performing job duties.

Employers also cannot intentionally cause an employer harm, which falls under an employee’s duty of good faith and fidelity. This includes protecting trade secrets of the employer even after employment has ended, not pursuing or completing other work during hours of work, work for a competitor and so on.

Conclusion:

The above duties are a part of every employment relationship within Canada. For oral agreements that go beyond theses duties, drafting a carefully written agreement may avoid future disputes over misunderstandings within the workplace and also avoid costly litigation. For complex scenarios and terms of employment, it is best to seek an employment law professional. For any related issues, Whitten and Lublin Employment Lawyers have a team of professionals dedicated to providing great service.

An employee in a managerial role is found to be engaging in sexual harassment: what is a reasonable punishment?

| May 15th, 2017 | No Comments »

When an employee is in a supervisory role and there is adequate evidence that the individual engaged in acts of sexual harassment towards other employees, then the employer’s obligation to its workers leaves limited options. Termination may be justified punishment and also the only option available to the employer due to the obligation to protect workers from sexual harassment.

Ontario Human Rights Code: Sexual Harassment

Of course, there are varying degrees of sexual harassment. Legally, sexual harassment is defined under the Ontario Human Rights Code as “engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome.” By definition, there must be a course of action here that is unwelcome, which implies that single incidences may not require harsh punishment. However, if the conduct is serious, then termination is warranted.

Individuals in managerial roles are further prohibited by such behaviour because human rights law specifically prohibits sexual solicitation or advancements by managerial personnel. The Ontario Human Rights Code states that individuals in a workplace are entitled to be free from sexual solicitation or advancements from those in a position to deny or provide an advancement or benefit within a working relationship. In other words, those that possess the authority to grant or deny workers benefits or advancement in their careers are explicitly prohibited from acts of sexual solicitation and/or advancement upon workers in the workplace. This includes supervisors, managers, employers and so on.

Case Example: Gonsalves v. Catholic Church Extension Society of Canada

To illustrate the above, take the case of In Gonsalves v. Catholic Church Extension Society of Canada. Here, Gonsalves was the financial manager and supervised 10 female employees. Gonsalves was accused by a number of these workers of inappropriate comments, touching (which was also criminal), and using sexually charged language. It was also apparent that these workers were afraid to come forward because they were concerned about their job security. The president (the priest) heard these allegations and immediately fired Gonsalves, even though this behaviour ceased months prior. Further, there was no sexual harassment policy nor established rules of discipline and/or investigations.

The court ruled that termination was the right punishment due to the seriousness of the sexual harassment that took place. Although there was not policy in effect, this was a zero-tolerance situation. Being in a supervisory role, Gonsalves could not be allowed to continually supervise employees in light of the misconduct. Further, one particular employee was threatened by Gonsalves to refrain from reporting the sexual advancements he had made towards her. This seriously impacted this individual and continuing to employ Gonsalves would cause this individual significant distress. The employer here had no other option but to terminate Gonsalves out of an obligation to provide a safe workplace free from sexual harassment.

Final Thoughts:

It is important to be aware that individuals in a managerial or supervisory role hold a significant amount of power over regular employees, so termination for sexual harassment may be the only option for employers. Employers are obligated to provide a workplace free of sexual harassment, so It is important to respond to any allegations against management or supervisors appropriately.  Proper investigations and precautions to protect those employees under the supervision of the accused should be taken as soon as possible because these employees are most vulnerable.

At what point is the duty to accommodate no longer necessary for an employer under human rights law?

| May 3rd, 2017 | 1 Comment »

Under human rights law, an employer must accommodate an employee if a workplace policy or job requirement effectively discriminates against an employee on a prohibited ground.  The most common grounds of discrimination within the workplace include religion, family status and disability. Other grounds of discrimination include race, colour, sexual orientation, age, sex, and others. Under human rights law, an employer must accommodate an employee if a workplace policy or job requirement effectively discriminates against an employee on a prohibited ground. The policy or job requirement does not have to overtly discriminate to be in violation. There simply needs only to be a discriminatory effect. The only exception is if the workplace policy or requirement qualifies as a ‘bona fide occupational requirement’ (BFOR). In order for a policy or workplace task to qualify as a BFOR, there are three points that must be satisfied that the courts have established. Below are each of the points along with an explanation as it relates to workplace policies or job requirements.

  1. The employer must show that the standard (policy/requirement) is rational in relation to the performance of the job.

This is a simple evaluation of whether the standard in question helps to fulfill a workplace goal. For instance, being able to lift 10 lbs. for an office worker may be required to access and retrieve large stacks of files. Having the requirement of being able to lift 10 lbs. in this case would qualify as a job requirement that rationally connects to the job.

  1. The standard in question must have been adopted in an honest and good faith belief that it is necessary to fulfil the work-related purpose.

The employer must also adopt the standard with the belief that it will fulfill a workplace goal or function. Maintaining the above example, the requirement of being able to lift 10 lbs. of weight for the purpose of retrieving needed work materials (such as large documents, files, etc.) would qualify as a good-faith measure. Being able to retrieve files on a regular basis that one is required to work with is a work-related purpose that would require someone to physically lift a minimal amount of weight.

  1. The standard in question must be reasonably necessary to accomplish the legitimate work-related purpose.

The final requirement is the most difficult to establish. In order to establish that the standard is reasonably necessary, employers must show that they would suffer ‘undue hardship’ by accommodating the individual. This step requires employers to explore alternatives that are less discriminatory and still accomplish the work related goal. Sticking with the above example, for a worker that cannot lift 10 lbs. due to disability, reasonable alternatives may include having other workers assist the worker when they are unable to lift the necessary documents/files, providing electronic files instead, or so on.

The idea is that it must be possible to accommodate the individual so that they can perform the essential duties required for their job. If this is not a possibility, then the employer has satisfied the requirements to establish the policy or work requirement is a BFOR. Typically, accommodation requires an employer to adjust working conditions so that the employee is able to perform the essential duties of the job. If the employer is unable to accommodate the employee to this point, then the burden of accommodation has been met.

Concluding Remarks:
Once a workplace standard is established as a BFOR, an employer is not required to accommodate. However, it is always advisable to explore alternatives to avoid unnecessary litigation. When exploring alternatives for accommodation it is essential that employers take an approach of good faith. This includes joint problem solving between the employee and considering doctor opinions if available. When in doubt, it is always best to seek the advice of an employment lawyer, as accommodation can present unique challenges that require legal expertise.

I felt forced to resign as a result of an illness or disability – what are my entitlements?

| April 27th, 2017 | 1 Comment »

Disability and Human Rights Law in the Workplace:

Employees have the right to be free from discrimination on the basis of discriminatory grounds, which includes Illness or disability. If an employee is faced with an illness or disability and needs accommodation to complete their work duties, an employer is obligated to accommodate to the best of their abilities. Unfortunately, there have been instances where rather than accommodating, managers or employers will seek to dismiss an employee or make the employee’s situation difficult to the point where they are forced to resign. This may include harassment, refusal to accommodate, or other actions that target the worker’s disability or illness in order to make work intolerable. In such instances, employee can quit and claim constructive dismissal. This simply means that the employer created an environment that would force any reasonable person to resign – in the eyes of the courts, this is the same as a wrongful dismissal.

Damages:

An employee that is wrongfully terminated is entitled to their severance package in addition to any entitlements for damages under human rights law.  Under human rights law, damages will be assessed by the seriousness of the discrimination and the effect it had on the employee (mental distress). Seriousness is assessed by the duration of the harassment suffered or an employee’s length of employment. This can apply to any harassment by management or supervisors, or coworkers that targets the illness/disability of an individual in the workplace. Under human rights law, these damages are intended to right the wrong of the violation suffered by the victim – not to ‘punish’ the employer. However, for extremely reprehensible acts, the courts seek to punish the action itself in order to send a message of retribution, denunciation and deterrence.  To highlight the difference, consider the case of Strudwick v. Applied Consumer & Clinical Evaluations, 2016 (ONCA).

Strudwick (Vicky) v. Applied Consumer & Clinical Evaluations:

In Strudwick v. Applied Consumers, Strudwick was an employee of 15 years that suddenly developed severe deafness from an unknown cause. Applied Consumers refused to accommodate Vicky, and her supervisor and general manager started a course of “public belittling, harassment and isolation in ways relating to her disability” and took additional action to make Vicky’s deafness more difficult in relation to her work duties. For instance, her supervisor made other workers call Vicky instead of using email for any inquiries, making it near impossible for Vicky to perform her job. At one point, management suggested that Vicky quit and claim disability. It was clear that these actions were done to force Vicky to resign. Management eventually dismissed Vicky on frivolous claims in front of her coworkers in a humiliating manner.

The termination was found to be wrongful dismissal and Vicky was awarded her entitled severance pay. Further, Vicky also was awarded $40 000 in damages for the violations she suffered under human rights law to rectify the wrongs. The judge, however, felt that simply rectifying the wrongs here did not denounce the nature of the actions management took. An additional $55 000 was awarded in punitive damages due to management’s harsh, malicious and reprehensible actions leading to termination.

Concluding Remarks:

The case above resulted in $246 049 in total damages due to further damages awarded for intentional infliction of mental distress and aggravated damages. If you are a worker faced with a situation of discrimination and harassment, it is important to seek legal consultation. Assessing damages for human rights violations may extend beyond human rights legislation for actions that are morally reprehensible. It is always best to seek the advice of an employment lawyer to ensure you receive just compensation in extreme cases.

Ensuring Employees are Given Adequate Time to Review Employment Contracts

| April 21st, 2017 | No Comments »

The law recognizes that there is an imbalance of power between employees and employers. Employers hold the advantage in contract negotiations because they are in a more favourable position to pressure or influence employees into agreeing or signing terms of contract. In the case of job offers, courts will examine the surrounding circumstances in assessing whether the employee was pressured into agreeing on the terms being challenged. Employers seeking to enforce minimal standards under law within their employment contracts are more at risk of being challenge. However, there are ways to avoid the terms of the contract being deemed unenforceable by the courts.

Adequate time to review the contract:

Foremost, the employer should grant adequate time for the employee to review and consider the terms within the employment contract being offered. This is especially the case for when the parties seek to limit the amount of notice or severance pay in the event the employee is dismissed from employment. This is usually done with the goal of offering the employee less than entitled under common law, but equal or more to the entitlements that are guaranteed under the minimal standards of employment law. Time should be given from the date of the employment offer so that the employee can understand and reflect upon their entitlements in the event the employment relation is ended by the employer. Employers should provide the employee with a copy of the contract and a few days to review the terms and conditions.

Ensuring legislative compliance:

Pitfalls to avoid for employers are ensuring that the employment contract offered legally complies to the minimal standards of employment guaranteed by law. If the employment contact is found to violate law, the courts will not just simply adjust the compensation owed to the employee to match minimal standards. Rather, the courts will enforce common law entitlements which can be much more that the minimal standards guaranteed by law.

Staying up-to-date on changes in employment legislation:

In addition, it is important to be up-to-date and aware of any changes under employment law that would render the past agreed upon employment contract legally incompliant. For instance, if changes to employment law raises the minimal severance packages employees are entitled to, then all contracts signed by employees prior to the change in law must adhere to the new changes. If not, courts will apply the common-law awards in damages to employees in the event of a termination.

Acceptable Scope of a Non-Solicitation Clause: A Real-Life Example

| April 17th, 2017 | No Comments »

For most employees, a non-solicitation clause should be all that is necessary if an employer is seeking to protect his/her business interests (clients) from employees who leave to a competitor. However, employers must be careful with the wording of such clauses because the clause must only go as far as necessary to protect the employer’s business interests. This is the ‘reasonableness’ standard with which the courts will review a non-solicitation clause. Any restrictions on the employee’s freedom to work must be necessary to protect the employer’s business or the clause will be unenforceable.

Non- Solicitation Clauses

There are a few things that a non-solicitation clause must contain to be enforceable. The clause must have a limited geographic scope and time in place that is reasonable. Further, a non-solicitation clause must be limited to the act of solicitation. If the wording of the solicitation clause goes beyond the solicitation of the employer’s client base, then it is likely to place unreasonable limits on the employee’s ability to freely compete and earn a living. Lastly, it is wise to limit the act of solicitation so that it is not too burdensome. This may entail only restricting the solicitation of the clients that the employee dealt with or the types of clients that the employee works with. To better understand the limits of a non-solicitation clause, the case of Donaldson Travel Inc. v. Murphy et al. 2016 is useful to review.

Donaldson v. Murphy, 2016 (Superior Court of Justice – Ontario)

In the case, Murphy was a former employee of Donaldson Travel that left to work for a competitor company named Goliger. One of Donaldson Travel’s claims was that Murphy solicited clients and therefore violated the non-solicitation clause that Murphy had signed. The clause reads:

Mary agrees that in the event of termination or resignation that she will not solicit or accept business from any corporate accounts or customers that are serviced by … Donaldson Travel, directly, or indirectly. (emphasis added)

The court deemed this clause unenforceable for several reasons. Firstly, there was no limit in time and geography. As it is worded, this clause would never expire and would apply anywhere in the country. This is unnecessary to protect Donaldson Travel’s business interests. Secondly, the phrase “or accept business from” goes beyond the act of solicitation. This places an unreasonable restriction on Murphy’s ability to earn a living because it is not necessary to protect Donaldson’s business interests. Lastly, the term “any corporate account” is also too broad. It would be reasonable to limit the solicitation of clients that Murphy dealt with; however, the wording here would prevent Murphy from conducting business with any clients of Donaldson, even the ones that Donaldson establishes after Murphy had left. This is not needed to protect Donaldson’s business interests by the departure of Murphy.

Closing Remarks

The burden is placed on the employer to carefully draft such clauses and to show that the clause is reasonable. The wording of the clause is important as the courts will not look beyond the wording of the clause, nor will they change the clause so that it is legally enforceable. For employees that are not in a managerial role, a non-solicitation will almost always suffice in protecting an employer’s business interests. It is important to seek the assistance of an employment lawyer when seeking to protect business interests through non-solicitation clauses.

Health and Safety: Can a Corporation be held Criminally Negligent for the Conduct of Supervisors?

| April 11th, 2017 | No Comments »

Upon other employer duties relevant to health and safety, the duty to provide competent supervisors may be the most important. An employer may have all the requirements of a safe workplace, however, having a supervisor that is negligent may result in criminal charges against the business resulting in sever fines. Criminal negligence charges are for extreme cases such as the one below.

R. v. Metron Construction Corporation

The case of R. v. Metron Construction Corporation (Metron) is an important case to be aware of and also a sad one. In this case, Metron was given a project of restructuring the balconies of several high-rise buildings. The president of the company hired a project manager, whom then hired a supervisor for the workers on site. Swing-stage scaffolding was needed for the workers to work on the buildings’ exterior balconies. Life lines were required to be worn by each worker and were attached to each swing-stage, ensuring any falls wouldn’t result in injury or death. The supervisor was responsible for insuring that safety procedures were followed.

The company ordered additional swing-stage scaffolding that did not have proper labels for maximum capacity as required under the Ontario Health and Safety Act (OHSA). On December 24th, 2009, 6 workers including the supervisor boarded onto a swing-stage to travel to the 14th floor. The normal practice is for only 2 individuals to be on a swing-stage at once. The combined weight led to the collapse of the swing-stage, leading to 4 deaths (including the supervisor). There were only 2 life lines available on the swing-stage, only one of which was used properly – the worker that properly used the lifeline was uninjured and the other that used it improperly was injured. The use of a lifeline is also a regulation required by the OHSA. A report concluded that the combined weight and the faulty design of the swing-stage was the reason for the collapse. Further, had all workers used lifelines, the deaths would be prevented. A toxicology report also revealed that workers were under the influence of marijuana, including the supervisor.

Decision:

Metron was found criminally negligent under the Criminal Code for the conduct of the supervisor. This was due to the degree of blameworthiness and severity of the accident. Specifically, the departure from the 2-person limit norm, the improper use of lifelines, workers being under the influence of marijuana, and the fact that the supervisor allowed all this to take place were all factors leading to this decision. The fine was set at $750 000, from the initial $200 000 in order to denunciate and deter such negligence that place workers in danger.

Takeaway:

Corporations can be found criminally negligent for the actions of anyone in a supervisory role. Specifically, the court maintained that the seriousness and the corresponding penalty is not to be diminished by the fact that the negligence was the fault of the supervisor rather than a more prominent figure of the company. It is therefore important for human resource and health and safety professionals to be aware of the importance of having competent and diligent supervisors responsible for the health and safety of workers. Employers must ensure that supervisors are properly trained and that all standards are followed so that unnecessary accidents are avoided. Training, inspections, workplace policy and proper lines of communication should all be used as a means of maintaining high standards of health and safety. In addition, any violations by supervisors should be dealt with in a serious manner with discipline imposed accordingly. If there are any concerns in your workplace regarding health and safety policy and compliance, please seek the advice of an employment lawyer.

Be Wary of the Employment Contract – Key Terms Affecting Employee Rights

| April 7th, 2017 | No Comments »

You just received that call, the one you have been sitting by the phone waiting for.  You have been offered the job of your dreams.  Everything is perfect. Shortly afterward, the company sends you a written offer letter or employment contract to formalize everything.  However, it contains many terms that were not specifically discussed during your pre-hire negotiations. While it is very tempting to cross your fingers and hope for the best when starting out this new and exciting relationship,  before signing on that dotted line, be wary of key terms that may impact your rights and obligations.

One of the major red flags to watch out for is the termination clause. While most individuals prefer not to think about  termination at the very beginning of a new and ideally long term employment relationship, this is one of the most contentious and litigated issues in employment law.   Typically, the termination clause is crafted by the employer specifically to protect the employer, not the employee.  In fact, you may be potentially giving up significant severance entitlements if the clause limits your rights to minimum employment standards legislation, or sets out a severance formula that slightly exceeds the minimum standard.  In fact, removing the termination clause altogether can in most instances be more favourable to the employee.

Another red flag is any restriction on incentive compensation or annual bonus payouts.  This is particularly critical if variable compensation forms a material part of your overall remuneration.  Many contracts indicate that bonus payouts will not be paid out at all, unless you are actively employed on the payout date, and will not paid out on termination.  This type of restriction can potentially result in forfeiture of your bonus entitlement, if you are laid off or terminated, before the annual bonus payout.  This can be true, even if you worked for the entire fiscal year and put in all that hard work to earn the bonus!   Similarly, if you are receiving restricted share units (RSUs), share grants or options, most often employers will include a similar restriction resulting in forfeiture of all unvested equity on termination. Verify the vesting schedule and any language that could impact your eligibility for ongoing vesting.

Additionally, there may be clauses, which could impact your rights and obligations, not only during the employment relationship but also afterward.  Many contracts contain post-employment non-solicitation or non-competition restrictions that purport to limit your ability to re-employ in your profession, or which might impact your ongoing relationship with clientele.   If enforceable, these can be extremely onerous obligations that you may owe your employer following your departure, and which may impact your re-employment prospects and marketability.

If you have any of these clauses in the written job offer, what should you do?   Get proper legal advice to determine how these provisions may impact your rights, if at all.   Secondly, negotiate!  Many employers present the contract as a ‘standard form’ document that “all” employees sign.  However, the reality is, anything is up for negotiation and there is really no downside to trying.   Before you negotiate, make sure you are adequately informed about your legal rights and have a negotiation strategy in place.

 

Author: Jonquille Pak, Employment Lawyer