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[Music] [Music] hello and welcome again employment law show good to have you along for the next 30 minutes lots to learn so stick around john school is here beside me of course lior samphiru co-founding partner sanfiroo tamarkin llp the most positively reviewed law firm in this country when you're not watching the show we're doing the show you can reach out anytime to leorn it's very capable crew always ready to have a chat with you 1-855-821-5900 help at employment lawyer dot ca right and the website built for you it is free it's anonymous called pocketedemploymentlawyer.ca there is much to be learned on that website even before you make the phone call to leeroy you can go to that website free and look around learn lots also wrapped up into that baked into it is the severance pay calculator which we will refer to guaranteed a couple times in the show today but you can use it anytime to find an accurate number what your sevens really should be if you have an offer on the table or if you've just recently lost your job or you think it's coming down the pike you want to know what you wrote accurate number that's the best place to find it other than a phone call of course to leor uh leora today fast facts about bonus payments that's on the show in just a bit stick around for it's going to be really interesting stuff but we always start off with the the week that was the case of the day pal what do you got for me or us hey john uh always great to be here always great to talk about employment law excited because i i've been solving a lot of problems and i i i know the types of issues that our viewers are dealing with because i speak with them every day every week so if you're dealing with a workplace issue number one chances are you're not alone and chances also are that i've dealt with it i've spoken to someone about it and i've already resolved it so if you have an issue don't don't hesitate to call make that call let's talk about your rights you have extensive employment law rights across the country okay you really do oftentimes i hear people frustrated oh my god the laws favor employers well the reality is the people that say that don't necessarily understand and appreciate how good of an employment law system we have in this country the laws ultimately do favor employees in canada and you can understand a lot whether you've lost your job whether you're worried about losing your job maybe you're being bullied or mistreated in the workplace maybe you think your job is being changed unfairly and you've been given an ultimatum there's options and rights you have in all these scenarios and more and what we do on the show every week is tell you what you need to know so that you don't get taken advantage of so that you know what to do if your rights are ever called into question and to give you an example of the types of situation that i deal with that i of course encourage you to call me about as well let me tell you about a situation that came across my desk over the past week i spoke with a lady who had been working for the same employer for a number of years and up until the pandemic started she always worked in the office kind of a regular monday to friday nine to five job but during the pandemic she and all her colleagues began working remotely like so many other employees and she'd been working remotely for now a couple of years so she spoke to her employer and said well since i'm working remotely do you have any issue with me relocating i don't need to live close to work i'm gonna move away i'm gonna probably move a couple hours away and i'm assuming i can continue working remotely employers said yeah no problem you can move wherever you want we're not gonna need you back in the office so that's absolutely fine with me so she did that and she moved away she's quite happy where she is well fast forward about six or seven months later her employer sends a message to her and all employees saying we've changed our policy now that we think it's safe to do so we expect everyone to be in the office at a minimum three days a week so yeah you've been working remotely but you're expected back in the office well she was of course very upset about that she had moved for her to come into the office would mean two hour commute each way three times a week which is not something that she was prepared to do she contacted her employer and she said to them well you told me that it's okay to move you told me i'm not gonna need to come in so so what do you expect me to do now our employer said well that was our policy we changed our policy we have a right to change our policy we expect our employees back in the office and if you don't come in then we'll accept your resignation so she called me of course and she wanted to know what her rights are well here's the thing john because her employer gave her the okay to to move because her employer gave her the confirmation that she can continue working remotely and she relied on that confirmation by her employer her employer cannot pick that back now her employer is not able to say you've resigned because i changed my policy no so because she relied on that she's well within her rights to stay home now if her employer decides to let her go because of this well they can do that but they're going to have to pay severance that's not a resignation that's not a disciplinary issue they have to pay your severance for her that's probably 10 maybe 12 months of pay and i'm going to help her get it if her employer decides to let her go but there's an important reminder there that if you rely on something that your employer said that did a promise your employer made if you can show that that promise was made your employer can't just take it back whether it's working remotely whether your pay or the type of job that you do those things do bind an employer and if an employer decides to go back on what they promised to take it back change their policy there are ramifications and there's legal consequences to that so i think john there's some very important lessons there to be learned in most cases i mean this is probably happened to tens of thousands of people over the pandemic and now it's starting to clear up a little bit they feel a little more freedom to bring people back into the the office under normal circumstances if the employer hadn't said yeah yeah continue staying at home normally you can't as an employee you can't do that you're expected you were at work prior to the pandemic now that you're coming back to work you're expected to come back if you're asked to right absolutely an employer can expect that the employees go back to their pre-pandemic work arrangements in terms of hours and work location etc so if you've been off during covet or working remotely your employer is able to say now we expect you to come back to work and that's absolutely fine what this was different is her employer told her no no it's okay if you move you're not gonna have to come in you can stay remote then they change their mind that's what that they did wrong and of course because of that there's gonna be consequences does it matter if she got that in writing or not or would it just be a little safer more ironclad to have that change in writing dear employer this is what you told me dated thank you very much listen anytime your employer makes a promise an agreement with you it's always a good it's a great idea in fact to confirm it in writing a text message and email works just fine employer confirming that we agreed today that i'm going to work remotely moving forward whatever it is that one liner is perfect and it it protects you luckily in this situation our employer is not disagreeing that they agree to it they just say they change their policy but definitely if you want something to be ironclad as john said you really do want to get something in writing and if your employer is not giving it to you and writing that's okay you put in writing yourself firm website employmentlawyer.ca employmentlawyer.ca you can go there there's contact things to be learned there's a media tab as well where you will catch links to our long-running radio show it's been about a decade we've been doing these across the country lots of phone calls every week people want to know they want to learn we take some of the phone calls as you know the york play them back in this show and uh we'll dissect them we'll take them apart and talk about our first call for the day from the radio show coming right now i was let go from my job i worked there for over 15 years was let go on the reason that they had suspicion that i was opening up my own similar business i saw becoming a competitor they gave me one week severance pay after 15 years now it's been one year that this has happened i kind of dropped the ball on everything i was wondering is there a way of retroactively getting severance good call a lot of things as you say john to dissect here uh the first thing is this you know he said that his employer fired him because they thought that he was starting a competing business so let's be very clear if you're gonna be working for a company and competing with them also on the side that's a huge problem right that's not something you're able to do and if your employer were to find out that you're doing that yeah they can let you go for cause and not have to pay you anything in most cases the reality is though that your employer has to prove that you're doing that you don't have to disprove it and if you're not doing it but your employer suspects it anyway if they want you gone they have to pay you severance and listen john after 15 years unless this guy truly was trying to compete uh you know in secret against his employer he's owed much much more than that now he says that it's been a year the good news is that there's a two year limitation period so if you've been let go you have two years from the time of termination to pursue the matter to ensure that you get your full severance now that's a very strict two years it's not two years in a day it's two years for him it's been a year so he's fine so the question of course becomes the main question perhaps is after 15 years with this gentleman he was paid one week severance what is he really owed well rather than me just tell you i'm going to show you as i always do i'm going to go to pocket employment lawyer dot ca i'm going to use the severance calculator just so you can see how it works let's plug that information into the severance calculator and let's see how much this person is out so we know that this person has been there for 15 years he's 58 years old in a technical role he was paid one week severance as you can see at the bottom of the screen what he's actually owed his actual severance entitlement is 16 months paid that's one six 16 months that is a huge massive difference between uh one weeks and 16 months you know with the salary of 70 000 that's a difference of over 90 000 so that's how we use our severance calculator which you can find at pocket employment lawyer dot ca and that is also an important reminder that whatever the company offers you you do not you do not sign until either we've spoken or you've used the severance calculator you know it's interesting leora with this particular call that we took a short time ago there's been a big uh a big increase in people doing you know side hustles uh with the pandemic they've either lost their job or they've had their hours restricted so on and so forth so they're pursuing other things to make a little money are you always wise to even if it's not a competing business are you always wise to let your employer know i'm doing this on the side it's going to be taking this many hours but it's not going to interfere with my job with you or you don't need to do that well if the job that you're doing on the side has nothing at all to do with your employer it's a completely different industry you know for your employer you work in it and on the weekend you work at coffee shop brewing coffee well it's not gonna really be any of your employers business at that point so as long as you can do your job it's fine but if you're gonna be doing something that may be somewhat similar to what your employer is doing even though it's not competing i certainly would advise you to tell your employer to be upfront with them so they can't say that you were trying to hide something or get away with something it's always a good idea the reality is a lot of people now find that they need to work more than one job and that's okay but you certainly can't work jobs that conflict with each other or that compete with each other because yeah your employer is going to have a big problem with that going to give you another route to ask questions anytime to leo and his team terminationquestions.com help us at terminationquestions.com absolutely free and anonymous of course get to the first one today leor comes from lawrence says are there any reasons for legally withholding pay my employer has stressed that business has been struggling recently and that payments will be delayed though most of my co-workers are still getting their paychecks can they do this absolutely not listen one of the most fundamental rights that we have as employees is to get paid for work that we do we go to work we do our job we get paid for it that's how employment works and there's never a legal reason or the legal ability to withhold pay if you did the work you have to get paid not only do you have to get paid you have to get paid on the date that was agreed on so your employer can't say i'll pay you but it's going to be a week late no that's a very big violation of employment law rights violation of employment standards and now i understand that the business may be struggling well if the business is struggling they shouldn't have an employee working when they can't pay them that's just the way it works so an employee that doesn't get paid properly even if they're just getting paid late they file a complaint with the government can also potentially treat the late payment as a constructive dismissal bottom line drop there is never a legal reason a legal basis for the employer to either withhold pay or even to delay pay first break is coming up right now after the break fast facts about bonus payments that's coming up so stick around for it in the meantime how do you reach out to leor i'll tell you how one eight five five eight two one fifty nine hundred the phone number email help employment lawyer dot c we'll continue more employment law show is coming right up 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 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 [Music] okay we are back employment law show thank you so much for sticking around through that short break let's get into this fast facts about boneless payments this is a key for anybody especially those maybe a sales role or otherwise lior so let's uh let's hammer into these right away a lot of stuff you're not going to know that's why we covered on this show you want to reach out afterwards 1-855-821-5900 help at employment lawyer dot ca or pocket employment lawyer dot save the website as well number one liar a bonus is not considered discretionary if an employee receives it every year right absolutely so you may be told by your employer just so you know bonuses are discretionary we the company decides you may have even signed an employment agreement that says bonuses are discretionary and you may think well okay i guess they're discretionary well no not so fast if a bonus is something that you regularly get and you regularly get it calculated in the same way and at the same time it becomes a term of employment it's something that you're able to count on because you're getting it getting it every year because you know what's going to happen so if it becomes a term of employment your employer can't change it they can't go back and say hey remember when six years ago we told you that the bonus was discretionary well guess what this year we're not going to pay you the bonus no they can't do that because over the last six years it became an essential in a regular term of employment so the real question is not did the company say it's discretionary or did you even sign something that says it's discretionary the the question you have to ask yourself is is it a regular part of my compensation now if it's a bonus that sometimes you get other years you don't well clearly at that point it is discretionary because it's not regular but if it's regular both in terms of either amounts the way it was calculated and the time you get paid it's an essential term of employment and an example i always like to use think of the the famous uh bonus for clark griswold in that christmas vacation while he wanted the bonus to to to do the pool well think about the product this created for him and his boss decided not to pay him the bonus well because he relied on it it became an essential term of employment so if your employer decides this year we're eliminating bonuses well no that could be a constructive dismissal that's something that you could potentially take a legal action for your employer can't just do that well if you kind of got a bonus it was the jelly of the month club you know it's a gift that keeps giving the whole year through clark but uh you know he got his bonus in the end right so there you go number two fast facts about bonus payments severance packages should include all forms of compensation including that bonus right so we talked about getting your bonus what it's supposed to well you're also supposed to you also must get your bonus as part of your severance so i'll give you an example so let's say your bonus is usually paid in january okay and you get uh you get let go in november okay well you have to get the bonus accrued for the year up until november and then also get the bonus over the severance period so if your severance is nine months pay you have to get nine months worth of bonus as well that's because your severance has to include all components of your compensation so salary benefits commissions bonuses includes that as well so if your employer doesn't account for your bonus as part of your severance well that's a wrongful dismissal potentially they owe you that bonus so you always have to remember you ask yourself this if i would have continued working would i have been eligible eligible for the bonus if the answer is yes then you also have to get it as part of your severance your employer can't say well you're not going to be here so we're not going to pay it to you well the reason i'm not going to be here is because you're letting me go so no you have to get paid your bonus as part of your severance as well is this sometimes you hear uh employers who are trying to be cute and they figure you know bonus time is coming out in june hey i got an idea i'm gonna let this guy go in may that way i can avoid the ten thousand dollar bonus i own i know it sounds awful and it is awful but unfortunately i've seen it happen more times than i can count where the company is trying to pick a convenient uh termination day to avoid paying either a large bonus or a large commission payment that an employee is owed it doesn't work okay if you're if you've earned your bonus you've earned your commission you have to get it paid then an employer that tries to avoid paying that by kind of messing around with the dates not only is going to still have to pay the bonus that potentially would have to pay other damages for acting in bad faith so a very bad idea for an employer to do that bonus fast fact number three right now employment contracts may limit an employee's right to a bonus as part of their severance how about that so we talked about the fact that you are owed your bonuses part of your severance well an employment agreement is able to change that and i am able to take away the severance you wrote as part of sorry take that away the bonus your own as part of your severance so an employer can stipulate an employment agreement that if we ever let you go your severance is not going to include the bonus now here's the thing and here's what i want you to know a lot of employers try to do that have that language in an employment agreement the good news is that in over 90 percent of matters they don't do it properly they don't properly exclude the bonus which means you are still out the bonuses part of your severance so if you believe well my employer is telling me i don't get the bonus because i signed an employment agreement that says that in my severance it's not going to include the bonus if you believe that's the case let me see the agreement i'm going to give you a 90 plus chance that despite what you may have signed it doesn't exclude your bonus it doesn't take it away but always be very careful and mindful of that employment agreement another thing you want to watch out for in an employment agreement is is there something there that may take away your future bonus especially if that employment agreement has come late in the game while you're already working there might be something they're trying to change on you right always a problem if you're already working and your employer wants you to sign a new agreement yes one of the purposes of it may be to take away your bonus so please be smart don't sign an employment agreement a new employment agreement without understanding what it says and to understand just send me a copy let me read it i'll tell you what it all means okay bonus fast fact number four let's get the last one employees who are not paid their annual bonus may be able to get severance through a constructive dismissal explain that so taking away your bonus is essentially giving you a pay cut right so if you usually get ten thousand dollars a year bonus and this year you don't get it well you essentially are getting a ten thousand dollar pay cut and what do we think when we talk about reductions in pay or pay cuts we have to think constructive dismissal an employer does not have a right to change terms of employment including taking away a bonus or or reducing pay and if an employer does that it may give the right to the employee to to treat that as a termination probably constructive dismissal that means you get your bonus and you also get your severance now it's not every change not every time your employer takes away the bonus where it's automatically a constructive dismissal we have to understand the terms of the bonus plan we have to understand the dollar amount that is being taken away but if you're ever in a situation where your employer doesn't want to pay you the bonus or decides this year it's not going to happen before you agree and just continue working or certainly before you sign anything you have to give me a call let's talk about it let's explore constructive dismissal that may absolutely be an option that you have again these points taken you know if you're ever unsure as leore says call him one eight five five eight two one fifty nine hundred help at employment lawyer dot ca i wanna get to our second phone call again leora a radio show across the country employment lawyer dot ca to find a station that carries it about an hour long in most cases and you can actually call in when we're live and ask some questions as well phone call number two from the radio show coming right now company that has multiple branches and each branch has a manager if one manager goes kind of rogue or off company policy and causing a toxic environment in the workplace what can be done is that even allowed can one person just have their own set of rules well certainly if you believe that what your boss your manager supervisor is doing is improper and certainly if it creates a toxic work environment if you think now it's becoming a harassment situation you have to tell someone okay you have to let the company know whether it's hr or the owner make sure that they understand what you're dealing with now it's possible that the company is okay with the employee the supervisor creating their own policies depending what those policies are but it still can't create a toxic work environment you still can't be bullied you can't be mistreated and if you are mistreated the company must deal with that the company has to investigate they have to take measures to take away that mistreatment and to eliminate toxic work environments and if they don't that's where i get involved because there's legal consequences so the best advice i'm going to give you if you're facing a bully in the workplace a toxic work environment is tell someone in writing okay like the boss the owner the hr manager whoever the right person is give them that opportunity to fix the problem if they don't fix it you call you got to call me right away and the person doing the harassing is the top level boss got known to reach out to that's why lior is there again skipping go right to leor we'll take a short break into another phone call from a radio show but in the meantime 1-855-821-5900 people think you should go to the government to get severance pay employment lawyer.ca says that is a myth government can only help you get minimum severance but not everything you're entitled to always check with the employment lawyer first at employmentlawyer.ca if your long-term disability claim is denied should you appeal appeals often fail because insurance companies control the process so long as you appeal you're playing by their rules you should never appeal the denial of your disability benefits appeals are just a mirage of false hope don't that's their process take it out of their hands and fight for your rights with our help go to disabilityrights.ca discover your rights fight back and get what you're owed 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 [Music] okay welcome back a few minutes to go on the employment law show welcome back to it reaching out to leora give you the number again 1-855-821-5900 don't be bashful just give leo and his team a call have a chilled out relaxed chat about whatever issue is that comes up for yourself maybe it's something you've watched during this 30-minute program or here on our radio shows you can always call that number help employment lawyer dot ca it's a good route as well through the email i did mention the radio show lior we'll get to phone call number three from our radio show right now today i found out that i'm going to be asked to report to a c-suite executive i'm already a c-suite executive and that's not acceptable to me some of the reasons that were discussed as to why relate to issues that i've documented and they're incorrect are these circumstances where it's out of my control i've only been there three years and i'm 60. listen john it certainly sounds like a demotion like the company thinks that she may be doing something wrong so they're going to put her in a different role that's maybe a lower role whether it's in terms of the organizational chart of the company or maybe from a prestige standpoint it's a lower role so this is an important reminder that i can give you that yeah an employer does not generally have the right to demote you an employer can't put you in a lesser position even by the way if that new position pays the same but it's obvious that it's a lesser position that also is not something an employer is allowed to do so what does this all mean it means that she may be able to treat the demotion as well as the fact that she's being written up for things that she says are false she may be able to treat that as a constructive dismissal because what the company is actually doing is they're trying to potentially push her out well if they're trying to push her out they may get what they want except the law looks at it as a termination if she were to leave it would not be a resignation it would be a termination she would be owed compensation she would be old severance because she's not leaving because she just decided she doesn't want to work there anymore she's leaving because she's been demoted she's been improperly treated because her employer made the work conditions not good not favorable same thing with you by the way if your employer is doing something to you they're trying to push you out they're trying to create a situation where you don't want to work you actually may be able to leave and still get severance it's not a resignation but of course before you resign before you do anything like that you have to call me so the last question for this lady is okay we know that this could be a constructive dismissal now that we want to know well how much is she owed how much compensation and severance would her employer have to pay her so last segment here let's go once again to pocket employment lawyer dot ca and let's use our severance calculator tool so we can see how much these are okay so let's do that right now we know that this lady has been with her employer for three years she's 60 years old she's an executive role even though she may be the one leaving because of what her employer did she because it's a constructive dismissal she's easily going to be out about six months pay and by the way john that could be even more than that it could even be as high as nine months big so six months pays what we're looking at here even though again she is not let go same thing with you at home you may not have been let go but you may be able to leave if something has happened to find out how much you're owed in any situation where the company owes you severance just go to pocket employment lawyer dot ca and here's our severance calculator tool yeah the fact that she's 60 played a big part in that six month seven because that number seems pretty good the the older you are the more severance you're getting and certainly at 60 you're going to be on more severance than it's for you no question there you go lots learned as i mentioned over 30 minutes you want to tune into our radio show employment lawyer dot c maybe your phone call will get on the air but to reach out to lior now that we're done for this particular show number one eight five five eight two one fifty nine hundred email is help employment lawyer dot ca and always always pocket employment lawyer dot ca right there you'll find the severance pay calculator as well we'll do it all again at a later show thank you so much for joining us we'll see you next time 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