Ensuring eSignature Lawfulness for Non-Solicitation Agreements in Canada

How to eSign a document: e-signature lawfulness for Non-Solicitation Agreement in Canada

[Music] [Music] good day and welcome employment law show john scholes lior sanfuru back here for you the knowledge is going to be spread over the next 30 minutes to listen to every single morsel of it and take it all in you want to reach out to uh leor and his team anytime phone numbers first one eight five five one email which we will get to some today on the show for sure help employmentlawyer.ca and the shorter version of that simply employmentlawyer.ca the website is a place where you can catch links to our long-running radio show we'll play some calls back from the radio show today as well but leor as always we're going to start with a bunch of things we're going to get to uh non-competition and non-solicitation clauses what those all mean what they're all about that's probably in the next segment but uh stuff to get through before then the week that was what's going on with you pal john always busy time for me uh certainly the last year plus with the pandemic has been crazy busy because employment law issues have come to the fore more than ever i don't know anyone whose job has not been impacted in some way by covert 19. so chances are if you're watching us right now you've you've had you felt that impact maybe it's been a good impact maybe you're busier than ever and things are great for many people it's not so fortunate your job or your hours your compensation or your job security might have been impacted maybe you're not working right now you're off on on a layoff and you want to know how long you need to be out for you can be off and what to do about it we'll cover that on this show on every show so if you have any issues questions you've always wondered about something you're watching the right show right now to educate yourself about employment law issues that said we only have 30 minutes so we may not be able to cover everything that's why we give you that contact information so that you can reach out to me off the show off air so we can have a private discussion about your situation and get you that help that you need so this is the employment law show dealing with workplace rights so let's get to it uh john i had a call this week from a gentleman who had been laid off for a long time he'd been laid off since the spring of 2020 of course because of covert 19. now he was initially quite optimistic that he'll go back to work and that kind of got extended and extended and he has not been back to work since but of course he's not able to just live off ei and other government support so what he did probably about 10 months or so after the layoff started is he found another job and he started working in that job still hoping that he'll be called back to work to his old job at some point but in the meantime you know he had to earn income put food on the table so his old employer found out about this job and they contact them and they say well we understand you're now working somewhere else fine but we consider that to be a resignation so you're not coming back off you go he was of course upset in fact he was livid about it he's been waiting for the company now they're saying that he's resigned so he contacted me and he wanted to know is this a resignation did i actually do something wrong by finding a job so i can support my family well john of course he did nothing wrong here's how this works when he was actually laid off last spring okay that layoff was a termination by laying him off the company put him in a situation where he can demand severance he can treat that as a termination so in fact he's already been terminated he can't resign because he's been terminated same with you if you've been laid off temporarily you have a right if you want to treat that temporary layoff as a termination of your employment and say i am not waiting i am not sitting and hoping and following up i'm simply going to demand and get my severance you can do that today you could do that tomorrow you could do that at any point if you want to do that give me a call now the other thing is this if you don't want to do that if you want to sit and wait for your old employer to call you back to work you can find another job and by finding another job and working at another job that's not a resignation you're allowed to do that so either way this company did something wrong i'm going to help him get severance he's over about a year's pay he's been with his company about 14 or 15 years i'm going to get him that year's pay so remember that lesson here if you've been laid off temporarily yes you can treat that as a termination you can get your severance if you don't do that if you want to wait you are allowed to work somewhere else while you're waiting one of the pitfalls if he had just said okay you know what i'm gonna sit and wait and hopefully they bring me back to work well the obvious pitfall is of course while he's sitting and waiting not earning an income and he may never be called back to work so essentially he's sitting there and waiting for potentially nothing but it gets worse if in fact they do call him back to work potentially getting called back to work puts him in a worse situation because getting called back to work from a layoff and accepting that recall means you've given the company the right to do it again so when they lay off a second and the third and the tenth time you won't be able to do anything about it because that first time you let it happen so that is a consideration that everyone should keep in mind here if you have been laid off temporarily if you accept it if you do go back to work obviously that's your right but by doing that you've given the company the right to do it again that is potentially very problematic if you do decide to pull the trigger and get severance and get out of there not stand by on this temporary layoff has coven 19 made any difference to the amount of severance or the employers trying to play that card employers are trying to play that card but the law is very clear not only do you not get less severance because of covert 19 you actually get more severance and the reason for that is it's going to be more difficult to find another job now it's going to take you longer to find another job because of covert 19 that means more severance so it's that much more important i've been saying on this show for years if you lost your job you have to give me a call we have to review your severance offer because chances are it's completely inadequate now during covert 19 that's more important than ever you're out even more than usual so please make the call send the email do the right thing if you lost your job and as always we throw it up on the screen but one eight five five eight two one fifty nine hundred as a way to reach out employment lawyer dot ca the website go there lots of information also links to finding our long running radio show pretty much across the country you'll find a station near you where you can tune in or online as well we take some of the phone calls as you know lior from the radio shows we hand pick some interesting ones we play them back here and we talk about them today's first phone call is coming up i was working for a job for four years and four months ago i got promoted from full-time to part-time 15 hours a week and i was recently laid off should i be getting severance at my full-time pay or my half-time part-time pay that's a great question it's a great question so here's how this could have worked and and here's how it's it is gonna work so four months ago she was moved from full-time to part-time okay she did not have to accept that her employer did not have a right to reduce her from full-time to part-time even if it's because of covert 19 meaning she could have said by doing that employer you've terminated my employment now you have to pay me severance if she had done that back then she would have gone severance let's say about six months pay based on her full time wages she didn't do that what she decided to do instead is accept that and continue working with that that pay reduction going from part-time or from full-time to part-time the problem is that now when her employment is terminated the severance she's going to get is going to be calculated based on her part-time wages so even though she's only worked part-time for a few months now that she's terminated she's terminated as a part-time employee so if before she was making fifty thousand dollars a year now she's making twenty five thousand dollars a year the severance is calculated based on that twenty five thousand that's why it is so important not to accept changes to your pay to your hours changes that are negative to you because not only do you give the company the right to do it again it could also impact your severance effectively for her she lost half her severance because she accepted that reduction from full-time to part-time if your employer wants to change terms of employment before you accept before you say anything call me let's talk about that let's make sure we deal with it the right way yeah you always raise the alarm bell when that when you're drifting into constructed dismissal territory always and that's a perfect example right that is exactly right it is a constructive dismissal when your employer wants to change terms of employment in a significant way from full-time to part-time reduction in pay change in hours changing shifts none of those things are things that your employer is allowed to do the law looks at it as a constructive dismissal another place for you to go anytimeterminationquestions.comterminationquestions.com you have questions for leore or his team you can write them in there leave them they will be answered and we'll get to one for today leor this one for the first show today is maryland marilyn writes in says i was let go after five years with my employer my firing was tied to the fact that i asked for two personal days following a month of endless 12-hour shifts they asked me to work temporarily after asking about my mental health they sent me four weeks pay and said that i should have no problem securing a new job can they do that well there's there's certainly at least a couple of things to unpack here so let's start with the idea that we know she's been let go her employment was terminated well if they think she may have a mental health issue or some other condition and that's why they let her go that's a human rights violation and by the way john it doesn't matter whether in fact she has a medical condition if they believe that she does and that's why they let her go that is a human rights violation that's illegal you cannot be let go because your employer perceives you to be disabled because your employer perceives you as having a medical condition if your employer lets you go because of that that's illegal it's a human rights violation they're going to have to compensate and pay damages so that's issue number one certainly we need to find out more about that the second issue she's been there for five years her employer says here's four weeks pay off you go nonsense ridiculous she is owed much more severance than that i can tell you exactly how much she's owed but so that you can see how it's calculated let's take her information and let's plug that into pocketemploymentlawyer.ca you can do that yourself for your own situation pocketemploymentlawyer.ca you can see on the screen right there she's been there for five years let's say she's in customer service 54 years old her employer says we're nice we're going to give you four weeks pay well you can see on the screen right there on the bottom what she's actually owed is six months pay six months pay that makes this a wrongful dismissal by the way if you lost your job are worried about losing your job your friend lost their job place to go to to find out how much you're owed pocket employment lawyer dot ca all right little break next thing we're going to tackle non-competition clause non-solicitation clauses what are those all about we'll break it down after a short break 1-855-821-5900 and employmentlawyer.ca people think you have to sign back a severance offer by a deadline employmentlawyer.ca says that is a myth deadlines are used as a pressure tactic make sure the offer is fair before you sign always check with the employment lawyer first at employmentlawyer.ca can insurance companies deny long-term disability claims for mental illness when you're suffering from a mental health disability insurance companies just don't understand but we do they can absolutely not force you back to work if your doctor say you are not ready and you know you're not ready they cannot make you go back to work if you have a mental health disability and your claim is denied don't give up give us a call and let us fight for you go to disabilityrights.ca discover your rights fight back and get what you're owed people think contractors aren't owed severance employmentlawyer.ca says that is a myth many contractors are actually employees and are entitled to full severance pay always check with the employment lawyer first at employmentlawyer.ca [Music] all right welcome back employment law show john scholes here in leor sanfiro of course answering all of your questions emails get some phone calls and then we break down some terms because people just don't know what they mean so we clear it up uh non-competition clause non-solicitation clauses let's uh let's handle the competition one first what is a non-competition clause lear so a lot of people have heard the term non-competition or non-compete so really what that is non-compete is a term in an employment agreement that says that if you ever leave the company whether you quit or are let go if you ever leave you cannot work for a competitor so usually we'll also define what's considered a competitor who is a competitor and it also usually say within what geographic region so within this province within the country within the world so non-competition is a term that tries to prevent you from working for a competitor for a period of time i've seen them anywhere from six months to five years so and it's a common term most people now when they sign employment agreements sign that but you want to keep in mind that because in fact it could significantly we'll talk more about that in a moment impact your ability to find another job if you can't work in an industry that you've worked in for many years if you are let go that could be a huge problem so a non-compete tries to take you out of that market that tries to take you away from working for a competitor for a period of time and that is quite problematic the cousin of the non-competition is the non-solicitation clause what's that one all about so non-solicitation or non-solicit a non-solicitation clause is a term that says that if you leave again let go or just quit you cannot go after customers you cannot solicit business from the company your old company's customers what the employer doesn't want is that you leave and take business away from them now it doesn't say you can't work for a customer or you can't accept business from a customer you just can't be soliciting them you can be knocking on the customer's door and say hey customer i now work over there i want you to send me your business i'll give you better rates etc so non-solicitation protects your old employer's business protects your old employers clients and most employers use that now non-competition i think a good percentage of employers use non-solicitation almost all employers use so chances are if you are accepting a new job if you have an employment agreement a written employment document in that document there will be a non-solicitation provision and you have to be weary of that you can't just necessarily go across the street for to work somewhere else and then hope that you can take all the business that the old employer had not if you signed the non-solicitation agreement how do these two rank as far as being enforceable is concerned well let's let's tackle the non-competition first so i'm going to tell it to you the way it is for most people a non-competition term is not enforceable what our courts have said is we don't like terms that prevent people from earning a living we don't like it we don't accept it so for most people a non-competition obligation a non-competition term is not enforceable a court is not going to make you not work for a competitor a court's going to allow you to work wherever you want to work now for some people generally very senior individuals fiduciaries for those individuals yes the non-competition may be reasonable maybe enforceable as long as it's reasonable as long as it's not for a long time as long as it's not across the country yes it may be enforceable but for 95 percent of individual even if you signed it the law says not enforceable not fair not in ance with public policy so we're not going to enforce it now the the cousin as you say the non-solicitation obligation unlike the non-compete is enforceable for most people so if you sign that document saying that you can't go after customers for two years for most people that will be enforceable so if you decide to breach that you are certainly taking a big risk you potentially can get into legal trouble and with the non-solicitation clause yes you do have to abide by it there's going to be those who think hey you know what it's in my agreement it's like page four i'll just ignore it if i leave advisable no well some people just well everyone just heard me say well a non-competition obligation is not enforceable great we can ignore it i can go work wherever i want if i quit or if i'm let go leor said on tv that it's not enforceable and i'll say it again it's not enforceable but the fact that it's not enforceable doesn't mean you can't get into huge trouble if you decide to breach it and here's what i mean by that the real question is not is it enforceable the real question is whether your former employer will try to enforce it and if they do they'll take legal action against you they'll sue you they may sue your new employer and you'll be embroiled in a very long and expensive legal battle now you will win that battle because as i said it's not enforceable but that battle will still be a pain in the rear end okay it's not going to be easy it's not going to be fun or friendly or cheap so you have to take it seriously you are taking a huge risk if you ignore and not compete even though it may not be enforceable if your former employer tries to enforce it you'll be in trouble so do not ignore it take it seriously and wherever possible try to abide by it however the non-solicitation is there a chance you can ignore that or no i would not ignore that not unless you speak with the employer now with the non-solicitation what i would do is make sure you you make it clear to a prospective customer that if they want to come to you i didn't solicit your business right you came to me that's fine you can protect yourself on that situation but if you go after your old company's customers you knock on their door you send them emails you phone them up if you you have a solicitation in your old employment agreement you potentially can get into trouble so someone comes to me uh they've got a juicy new employment opportunity for me but i got that non-compete in my in my employment contract how do i handle it because i really this is an opportunity well first thing you have to do and you absolutely should do this is tell the new employer about the non-compete right they need to know about it because if you don't tell them and then there's legal action they'll let you go because you weren't honest and you potentially got them into trouble so the new company should know a lot of them may not care but they should know the other thing you may want to consider is speak to your employer your old employer and say listen i'm going to work somewhere else i'm not going to hurt you i'm not going to solicit clients i'm not going to hurt your business but i want you to understand that i'm still going to work for a non for a competitor without hurting your business most employers are going to be receptive they're going to understand so it is a good idea to have that discussion the risk of force is this the risk is if you don't do that and your old employer finds out you're working for a competitor they will take legal action again you will win that legal action i can almost guarantee it but it's still not going to be a pleasant experience so ideally you want to avoid that altogether be open with a new company be open with your new employer and try to work out a deal a situation where you can go work wherever you want as long as you don't go and solicit and take their business well that was kind of where i was going with the last question that is if i am the soon-to-be former employer how do i how do i protect that from losing my good employees and competitors so first of all employers should use non-solicitation agreements or non-solicitation terms in employment agreements every employer should have that and you have to be reasonable with it so in other words if you say you can't solicit our clients for five years anywhere in canada you've overreached and that's not going to be enforceable but if you say you can't solicit for a year you know within 50 miles of our office or something like that then that's fine so employers have to be reasonable with respect to non-compete if you have senior employees yes use non-competes for them i wouldn't necessarily bother with more junior employees use them for your senior employees and use non-solicitation obligations for all employees again questions anytime either the phone call 1-855-821-5900 employmentlawyer.ca is the website that is also where we get our phone calls for this show from our radio shows which you can find on the website as well your phone call number two from our radio program is coming up when i was hired i had a one-year contract the one-year contract expired and i continued to work there until april of last year when covet hit basically locked the place down and so on and so forth and just wondering what my status would have been um not like working for almost five years without a contract and i i am an independent contractor so first of all let me spoil the ending which is he's not an independent contractor okay he's an employee if he's worked there for five years it's almost always going to be a situation where the law considers you to be an employee and and that's sometimes very difficult for people to accept it's like i signed a piece of paper that says i'm an independent contractor i pay my taxes as an independent contractor the company i work for says i'm an independent contractor so how can you tell me i'm not right well i am telling you that because the only one that can decide what your status is not you not the company is the law and if you look like an employee and act like an employee if you have a regular job you are an employee of that company so chances are for this person he's been misclassified as an independent contractor when he truly is an employee now that's important because now he's been there for five years the old contract expired he's now employed under an oral agreement so he's a five-year employee if he's let go tomorrow he's getting severance like a five-year employee the company may say we don't have to pay you anything you're an independent contractor we're going to let you go shake your hand and say goodbye uh-uh not so fast if you've been misclassified and this whole time you've been an employee and you've been let go you're owed severance like an employee that could be up to 24 months pay two years pay so important if you think you're an independent contractor call me let's talk about that or by the way pocket employment lawyer dot ca has a tool that allows you to find out if you're an employee or an independent contractor so definitely check that out pocketemploymentlawyer.ca and quickly before we break you mentioned he's kind of on a handshake agreement now that that's over that's the best way to be employed isn't it absolutely i want you know if i had my way if an employee had his or her way all employment arrangements should be on a handshake you as an employee you don't want an employment agreement you don't want that five or seven or ten page document oral agreements handshake agreements back of the napkin all of those are much much better than having a long employment agreement that all that does is it gives employer rights not the employees we'll get to another phone call from our radio show but we've got to take a short break first so we will do that one eight 1-855-821-5900 anytime and employmentlawyer.ca people think you aren't owed severance pay if you are fired for a reason employmentlawyer.ca says that is a myth most for cause terminations are false and you are still owed full severance always check with the employment lawyer first at employmentlawyer.ca how do you force insurance companies to pay long-term disability claims insurance companies deny legitimate claims all the time they're playing the odds they know that most people are just going to walk away your insurer may ignore you they may even ignore your doctors but they can't ignore us we know how insurance companies work we know their weaknesses we know how to use the legal process to force them to pay you what you're owed go to disabilityrights.ca discover your rights fight back and get what you're owed people think you are only owed two weeks pay when you lose your job employmentlawyer.ca says that is a myth you may be owed much more than two weeks per year don't settle for less always check with the employment lawyer first at employmentlawyer.ca all right welcome back thanks for hanging out to employment live show we'll get to our third phone call from our radio show again you'll want to find a station near you that carries the program wherever you are in the country simply go to employmentlawyer.c let's get to that call the company that i had been laid off from due to copit let me go terminated my employment via email the email stated that we've decided to not fill your position so i was given my vacation pay plus pay in lieu a little bit less than a week severance and i'm wondering if i haven't i was only with the company for about seven eight months but it seems to be a little bit on the low side very good call very good question and it's certainly something we can elaborate on so let's be clear company does have a right to let him go he may not have done anything wrong and he feels that the rug is being pulled out from under him i get that completely legally though the company is allowed to let him go but they have to pay him severance now he's worked there for eight months there's a tendency of course to think well short service employee he's probably owed a week's pay if he's really lucky maybe two weeks pay a lot of people believe that all the time wrong false not even close remember short service employees short service these eight months that short service are treated disproportionately better than longer service employees so you're often owed several months pay even if you worked a few months don't believe me let's take this exact scenario and let's plug that into pocketemploymentlawyer.ca and see how much this person is owed so this person has been there for eight months i don't know what his role is let's say he's a manager 56 years old he was given a week's pay you can see right at the bottom of your screen he is actually owed anywhere from three to six months pay he's worked there only for eight months three to six months pays how much severance he is owed not a week not two weeks not a month same with you if you lost your job free anonymous easy to use your best friend your best resource pocket employment lawyer dot ca gonna slide in one more quick question before we go lior from terminationquestions.com karis says the company i worked for changed ownership a few years a few weeks ago i was told by the new owner before the change that i would be kept on but they needed to pause my job for a while before bringing me back now they're not returning my calls what should i do so listen employment is actually not complicated the employment relationship you go to work your employer gives you work and that's it if your employer doesn't do that you're off work they're not giving you work they're not calling you back whatever you want to call it that is a termination you can't be employed if you're not working you can't be employed if your employer won't give you the ability to come into work so for this person for kara her employment was terminated any way you slice it she it's been paused her employer is not getting back to her getting back to her whatever that is she now can say that's it enough is enough i've tried to come back to work you're not giving me work i've been sitting at home for a while that is a termination of my employment and now like it or not employer you have to pay me my severance that's what you can do and same with you if your employer is not getting you getting your work if you've been put on a layoff on a pause on a leave and you're not working that in the eyes of the law is a termination if you want to get your severance remembering as i said earlier that it could be as much as 24 months pay if that's what you want to get give me a call i'll help you do it it's like if you think about it in the reverse it's like okay i got this new job you know what don't feel like coming in for a few months i'm just gonna hang back and you know when i feel like coming back i'll be in but but it's exactly that right if you decide well i'm just not going to come in but clearly i'm still employed that would be silly and your employer is going to say you've resigned well it's the same thing in reverse if your employer won't give you work won't give you a job you're not employed they can't keep you employed they can't call you an employee unless they're employing you unless they're giving you work and then they have to pay you your full severance always think about that the reverse say whenever you're talking about employment law and when the show's not i'm going to give you some contact as we wrap up for the day that came from termination questions.com you can go there anytime ask your questions you got all kinds of time there pocket employment lawyer dot c is like having leroy with you constantly and 1-855-821-5900 we'll catch you again on the employment law show closed captioning of this program is brought to you in part by severancepaycalculator.com find out how much you are owed right now severancepaycalculator.com people think their employer can make changes to their job employmentlawyer.ca says that is a myth your employer can't change your pay hours or duties you may be entitled to full severance pay always check with the employment lawyer first at employmentlawyer.ca