Q&A: Is my non-compete agreement binding 15 years later?

| August 4th, 2015 | No Comments »

QUESTION

A contract is a document drafted by the employer and signed by their respective employee. It is up to the employee to review this document and, if in agreement with the content, the employee signs it away, binding them to those terms. One particular clause that comes up often during discussion is the non-compete agreement.

A non-compete is a form of restrictive covenant drafted by the employer which restricts the employee from working for another industry. Let’s say an employee signed a non-compete 15 years ago and was not given a copy. Readers from the Globe and Mail would like to know, can the employee be bound by this agreement today? Or does he/she need to sign every so often to make it valid?

ANSWER

The Non-Compete Agreement

Well-known Globe and Mail columnist for the Report of Business and Toronto Employment lawyer, Daniel Lublin answers this question with his expertise. He says that non-compete agreements do not need to be renewed, unless stated otherwise in the contract. It is also worth mentioning that the agreement is not deemed invalid simply because the employee did not receive a copy of the agreement. An employer can rely on this document regardless.

To find out more on this topic, read Daniel Lublin’s column and full article I have to work through my severance. Is this legal?

Q&A: Do you have the right to a harassment-free work environment?

| June 1st, 2015 | 1 Comment »

QUESTION

I have decided that my experience with my boss is in fact harassment and bullying. My performance is over managed, and performance reviews are used as a form of discipline, not coaching. I’m unjustly criticized and made to feel unwelcome. It’s humiliating. I have a doctor’s note detailing the high levels of anxiety and panic I developed. What options do I have? 

ANSWER

Legislation and a Harassment-Free Work Environment

Under Ontario’s occupational health and safety legislation, you have a right to a harassment-free work environment. The actions to which you are subjected must amount to something more than just a personality conflict, and rise up to something along the lines of malicious treatment. You may want to review your company’s anti-harassment policy (if one exists) and file a written harassment complaint. Your employer is obligated to investigate the allegations, and make a good faith determination as to the best course of action to address them.

Participating in an Investigation

You have a right to participate in the investigation and learn the outcome. You also have a right to be free from reprisals (i.e. punishments) for exercising your right to file the complaint. If this happens or the complaint is mishandled, you may have the right to treat your employment as terminated and seek a severance from the company.

Stepping Away From the Situation 

Given your health situation, it would make sense for you to be away from the workplace while this is happening. You can send your doctor’s note to your manager or HR, and inquire about your company’s short-term disability benefits – and if necessary, long-term disability benefits – for income replacement while you’re off work. If the company does not offer these benefits, you may be eligible for Employment Insurance medical benefits for up to 15 weeks. That will give you some time to regroup and consider further options going forward. You have the right to a harassment-free work environment and can step away from a situation that is affecting your health and well-being.

Fired from Your Job Based on Discriminatory Ground

| May 25th, 2015 | 2 Comments »

QUESTION #3

I have been fired from my job because my employer told me I don’t fit into their culture. Is this illegal or a form of discrimination?

ANSWER 

Termination Without Cause

Terminating you because you do not “fit” the company culture can be illegal on account of discrimination, but this requires an inquiry into why you do not fit.

When an employer terminates you and gives “fit” as the reason they are terminating you without cause: you are entitled to working notice, payment in lieu of notice or some combination of the two (“notice”). This act on its own is not illegal, as an employer has the discretion to end your employment.

However, an employer is not entitled to discriminate against an employee under a prohibited ground set out in Ontario’s Human Rights Code (the “Code”), to provide notice and to hide behind “fit” as the reason. 

Ontario’s Human Rights Code and Discriminatory Ground

Code grounds include, race, disability, sex, age, gender, family status, sexual orientation, ethnic origin and other personal characteristics. So, if you suddenly do not “fit” with the company’s culture based on some discriminatory ground, you are entitled to compensation above your notice requirements and/or reinstatement.

For example, the following employees likely have a good case against their employer for discrimination:

  • The group of waitresses in their 50’s that did not “fit” were replaced by women in their 20’s
  • The salesman that had excellent sales but no longer “fit” at the car dealership after his boss found out he was homosexual
  • The long-time accountant that did not “fit” when her firm noticed she was pregnant
  • The factory worker that did not “fit” when he was diagnosed with Parkinson’s disease

Discriminatory Ground and Advice from a Lawyer 

It is important to note that even if the discriminatory ground is only part of the reason you were fired that is enough to prove discrimination.

As you are likely aware, discrimination is often concealed or subtle and can be the consequence of unspoken beliefs and biases. You would be wise to seek the help of lawyer to help you prove that your termination for “fit” was in fact a veiled discriminatory practice of the employer and to make sure you were provided with the appropriate amount of notice.

Starbucks Addresses Homophobia Allegation

| June 22nd, 2011 | No Comments »

Missy Alison and her daughter were sitting down at a Starbucks when she overheard a conversation taking place at a nearby table.   An employee named Jeffrey was losing his job, and for some reason his sexual orientation was a topic of discussion.  According to Alison, when Jeffrey expressed concerns about a hostile work environment he was told that “if he was not, ‘Part of the solution, he was the problem,’ and his two weeks notice would not be needed.”  When Jeffrey left, Alison allegedly heard the three women make homophobic remarks such as, “It’s not like he turned gay last week”.

What can a person do when they witness something so emotionally gut-wrenching?  It seems more and more, they are turning to social media.  In recent years, there have been many negative outcomes stemming from emotionally-driven blog posts, tweets and status updates, but it may turn out that social media outlets can also be a source of accountability for corporations.  This has already been illustrated over the past year through the response seen after TTC commuters began documenting the activities of bus drivers with smart phones.   This raises an interesting question: How much of an impact can an informed, action-oriented public have on a company’s policies and procedures?

Missy Alison wrote Starbucks a letter of complaint and “tweeted” about the experience to spread the word.  The Toronto Star reports that her blog readership went from 300 to over 100,000 in just a few days.

Starbucks replied via twitter saying, “Your blog post is very concerning. It doesn’t correspond with our values or who we are as a company” and later followed up with a phone call.  They also gained a lot of attention with the following Facebook status update that has over 4000 “likes” so far:

“We pride ourselves on being a great place to work and have zero tolerance for discrimination of any kind. Please see this blog post regarding a report of a recent incident.”

Alison succeeded in drawing attention to her account of a discriminatory incident.  Starbucks responded by addressing the issue head-on in a timely manner through various social media platforms, and has impressed a lot of people, including Alison.  A proactive approach to social media can provide many benefits to employers.  In this example, Starbucks was able to make use of negative publicity to raise awareness on their company mandate for inclusive hiring practices.

“The workplace no longer has traditional borders”

| April 19th, 2011 | No Comments »

Those were the words of employment lawyer Daniel Lublin in an article titled, “Keep personal online use separate from business.”  Many companies have come to the realization that policy on computer use requires constant attention.  Many employees have discovered this to be true as well, but not before losing their jobs. 

Here are a few reasons to help understand why:

  • Much like neglecting to clock out for breaks, excessive online “breaks” can be considered time theft and lead to dismissal with cause.
  • Emails can often lead to dismissal if they are offensive or harassing in nature.  Depending on the severity of the actions, Lublin says that employees could “end up surfing the classifieds for a criminal defence lawyer, as well as for a new job”.
  • Reckless Facebook, Twitter, and blog postings can all lead to discipline and often dismissal.

The good news is that there are things you can do to continue surfing the web at work.  First, although it seems simple enough, treat your workplace computer like your workplace computer.  Although some workplaces may allow company-provided devices to be used for personal use, you should review company policy and always assume you are being monitored. Lublin suggests ensuring “that personal Internet use away from the office does not intersect with your job. This applies equally to the use of PDAs, BlackBerrys, Twitter, blogs and Facebook.”  With a little common sense you should be able to ensure that your latest online exploits don’t end up on HR’s desk.

Employers are Watching Your Online Footprint

| October 29th, 2010 | No Comments »

You have just applied for your dream job.  Kathy from HR has your resume on her desk.  She “googles” your name – what does she see?

As social media continues to grow in popularity, the difference between conduct at home and at the office is becoming less clear.  RSS feeds send immediate notifications to cell phones and e-mail, increasing the speed of information transmission in unprecedented ways.  What does this mean for employers? Damage can be done to a company’s reputation within hours, particularly if something goes “viral”.

Because of the lasting effect the click of a mouse can have, courts have been sympathetic to employers that conduct damage control.  Actions outside of work can still be cause for dismissal, and employees should be conscientious of the perceived intentions and potential damages an employer might see in their online footprint.

A recent article published by Daniel Lublin in the Metro offers some specific examples of how, “Off-duty’ behaviour can be punished in the workplace”.

Oil Sands Blogger Fired for Safety Concerns

| October 25th, 2010 | 1 Comment »

The Vancouver Sun reported that Mike Thomas was fired from his position as an electrical apprentice after posting two blog entries that detailed his health concerns in two mining camps in Alberta. 

The tone of Thomas, adhdcanuck’s blog, is one of reserved conviction – a tone that he says would be much harsher, were he “permitted”.  The two entries written described health concerns such as the sanitary condition of washrooms, and the limited food selection that left many nutrients to be desired.  Thomas catalogued his complaints through several pictures and videos of the facilities.

Two days following his October 4th posting, he was terminated over the phone by the contractor he worked for upon the behest of Suncor management.  Like many other companies, Suncor cited policy that prohibited work site photos to protect trade secrets; policy that Thomas claims is a smokescreen to mask unsanitary conditions.   Thomas’s union is pursuing his claim of wrongful dismissal, while he continues to blog and gain support.

When employees complain about working conditions to no avail, they often use social media websites as a sounding board, either for personal release, or as a political podium.  Whether acting in haste, or with tactical precision, employees should be aware of the danger they face. 

It is common for an employee to blog or tweet about a horrible day at work.  What Thomas did was completely different – he posted his company’s name with picture and video as a call to arms, hoping to mount a resistance.  This need not be an issue of free speech, but of common sense.  If you publicly insult your employer, you should expect repercussions.  Employees should be careful what they post, and know that whether it seems fair or not, employers are not hesitating to terminate for blogging.  That being said, employers should still consider lesser punishment than immediate dismissal.  It is a good idea to come up with fair procedures that address defamatory blogging sooner, rather than later.