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all right I think we're live hopefully technology works I like technology better when it works so welcome everyone good morning Thursday again and it's time to talk about employment law Lior Sam fear of sin fewer to marken and with me of course my colleague will be pruned yeah good morning looming good morning and we're we're glad you join us again you know the purpose of these meetings is to talk about some things that I think are going to be interesting and impacting anyone that what's working wants to work lost their job you need to know your workplace rights we're talking about relevant things we're not we don't lecture on the law things you really need to know and today is a perfect example of this we're going to talk about employment agreements contracts of employment the document you get when you found a job and those are extremely important documents and and most people don't realize just how important it is so we're going to tell you what you need to know about that MA to look out for how to even negotiate those we're going to go through various things today specific terms and employment agreements you have to watch out for termination clauses clauses that allowed the employer to centrally make your life miserable non-competition provisions we'll go over all that today and hopefully give you something to think about if you're looking for work if you're being offered an employment agreement things that are really you have to know about and you know what happens we find when someone's offered an employment agreement usually that's a very good thing that very excited and they're gonna focus on certain things in that agreement so if you're like most people you were offered a job you're gonna look at salary you're gonna look at vacation you're gonna look at bonus and of course those things make sense that you should look at those but we're here to tell you that there's other things that are just as important potentially more important to look for other than salary bonus benefits etc and that's what we're going to tell you about today and hopefully open your eyes to it so before I'll turn it over to you to start talking about specific terms that you have to watch out for I want to make some general comments about employment agreement first this is really important a written employment agreement almost always benefits the employer well why is that the reason for that is that the law provides some very extensive protections for employees they are there whether you realize it or not but the law also says that if you want to agree to less than those protections you can do that and that's what an employment agreement does it either takes away some of those protections or actually gives them to the employer which is why believe it or not for an employee it is far better not to have a written employment agreement or to have a very short document I can't tell you Lumi how many times I've had someone contact me one did with a job offer and they say well I'm very worried or because it's a very brief document it's like one or two paragraphs and I'm worried about that it doesn't seem right and you know I always chuckle when that happens and I held the person don't be worried about the one paragraph agreement be worrying about the ten page document with a lot of legalese because I can promise you that in that 10 page document this company I'll there's gonna be a lot of things that are gonna be unfavorable to you where's with the one paragraph document there's really not much that an employer can put in so if I'm advising an employee you're far better off having a brief document a brief employment agreement that outlines you're dropping your salary and that's it unfortunately employers are getting wiser and for an employer certainly it is far far better to have a written employment agreement in fact from putting my employer advisor at I'm saying an employer should never have an employee start working without a properly drafted written employment agreement so again depending your prospective employee or employer written agreement can be good or bad the other thing I'll say about an employment agreement is an employment agreement is drafted by lawyers so they're drafted by people with more legal knowledge than the layperson so if you're a layperson trying to understand what a lawyer drafted you have a disadvantage and that's what we're here to do today try to even out that playing field a bit try to give you some of the information that you need to understand what a lawyer drafted the finals I don't think I'll say about employment agreements before I will start talking about specific terms is what I call a rule of thumb and that is if you sign it you have to live with it okay it's very very important you never sign an employment agreement thinking who cares or maybe it's unenforceable no if you sign it you have to live with it and an employment agreement not only is gonna be with you while you're employed it can also be with you for years after employment comes to an end we'll give you examples of that so it's a very very important document you have to be close attention to it so with that said we're gonna start now talking about certain terms that you have to watch out for other than your salary and your vacation and with that in mind I'll turn it over to Lumi yeah so you said you mentioned the fact that when you represent employers the first thing we do is we make sure that our employer plans have termination clauses in their contracts on the flip side when employee clients contact us we saw we breathe a sigh of relief when there is no contract or when the contract is short and does not contain a termination clause why is that we know and you're just explaining that termination clauses are bad for employees termination clauses are put in contracts with the specific intent to limit someone's entitlement termination entitlements and so it's better it's better not to have a termination clause in your contract and it's better not to have if there is a termination clause it's better not to have a termination clause that references the the ESA the Employment Standards Act which is provincial legislation that limits that limit employees entitlement that stipulates that the minimum standards for for for employees and so employment termination clauses are put in the contract again with the intent to save employers money to limit their exposure to liability and so that also means that it termination clause is take away money from from employees now very few contracts well very few cases that cross our desk involved terminate employment contract all the employment contracts that cross our guests very few contain enforceable termination clauses so just because you happen to have a contract with a termination clause in it don't assume it's enforceable again as lyrica mention an employment contract employees have very extensive entitlements at common law termination entitlements at common law and so in that case when when the when the termination clause comes in it limits those those in his hat you there are many many examples where a termination Clause makes a huge difference monetary difference for for our clients for example someone with two years of service who is in who is 55 and he's a plan manager for example with a proper enforceable termination clause the termination entitlements are two weeks again a lawyer who knows what he or she is doing make sure that that that person doesn't get more than more than two two weeks for two weeks in total with without a contract the in the example I've just given the termination entitlements are quite significant six months so you there's a huge difference between six months of terminate notice or termination pay and two weeks of termination pay for someone who makes fifty thousand a year for example that the is no $20,000 or something like that on the on the other side of the spectrum someone with many many years of selected let's see more than two decades of service and an enforceable termination clause limits them to just slightly more than eight months of pay like what you're looking at two years worth of worth of entitlements so again huge huge difference between two the salary of 50,000 a year there's there's a huge gap between $100,000 and just over 30,000 and so again termination clauses are bad for employees but do not assume that just because we have a termination clause in your contract there's nothing that can be done to the contrary contact a lawyer call us and we actually specialize in attacking termination clauses and getting around termination clauses that on on their face seem seem proper termination clauses in order to be enforceable have to be very they have to contain very specific particular language and so we recognize right away when there are deficiencies in those clauses and when we can attack and get out yeah and it's exactly right if you're looking at an employment agreement that talks about termination of employment your agreement addresses that that's a bad thing the the point the purpose of that is to limit your entitlements and if it's properly drafted I can guarantee you at some point that's gonna cost you tens of thousands of dollars so it's always a bad idea I know it sounds strange to think of termination of employment when you just started a job you just got a job offer but that's the time maybe the only time to think about it because that's when you can still do something about it you don't want to find out five years later if you know there's a restructuring and you're let go that that's when you started working five years ago you agree to a termination clause and now you're gonna get five and weeks pay instead of eight months pay you know what's not going to mean to your family if you know you lost your job and you're not gonna have a job and you're not gonna have an income and stuff to pay your bills etc so termination clause is very very very important literally we're talking tens of thousands sometimes it could be worth hundreds of thousands of dollars depending on your income and how long you work there so as Lumi said be very watchful and mindful frankly when we review an employment agreement usually we take the document we flip to the last page or the second last page and the first thing we look for is a termination clause because it's that important so do the same thing if you're offered a job look for those now moving on past termination clauses let's talk about some other terms you have to watch out for the second category is what I call restrictive covenants these are terms that limit what the employee can or cannot do after employment comes to an end a big one that most employers or an employees of furtive is a non competition obligation a non competition obligations tries to prevent an employee for working for a competitor for a period of time after employment comes to an end so let me share a secret with you for the most part these are not on not enforceable our courts have said yeah we don't like things that prevent someone from running a living so unless we're talking it seems a non competition obligation is not enforceable so you may think okay it's not enforceable so who cares let's go talk about something else well not so fast because remember the rule of thumb which is if you sign it you have to live with it this is what I'm talking about now a non competition obligation may not be enforceable but what happens if your former employer tries to enforce it well here's what's gonna happen they'll take legal action against you don't think a legal action against your new employer and you know what two years down the road and a hundred thousand dollars in legal fees later you will win but it's gonna be a fairly hollow victory it's not the type of battle that you want to engage it so in reality even though I'm an employer cannot necessarily enforce it they can still make your life miserable so you have to take it seriously you cannot sign a non competition obligation and then just ignore it another competition obligation can be extremely problematic if you've worked in an industry for your whole life and now you sign an agreement saying that if you're let go you can work in that industry for two years what are you doing it's a big big problem you have to be mindful of that and honestly if you're looking at an employment agreement with an overly restrict of a non competition obligation that in and of itself maybe reason enough not to accept the job because the repercussions could be far-reaching now just for a for fun let's think about a an agreement that has a termination clause and in non competition clause what's the effect of that well the effect about is as follows the employer can let you go at any time pay you almost nothing oh and by the way if that happens you can't work in the industry for two years now you understand I hope why salary is not the only thing that matters why you know whether you're making fifty five or sixty thousand may not be as as important as some of those things that we've talked about so it's a very important to understand that the non-competition obligation another type of restrictive covenant is a non solicitation aligned non-solicitation obligation a non-solicitation obligation says that you cannot work or sorry that you cannot go after your former employers clients or employees for a period of time now unlike a non-competition obligation a non-solicitation obligation is enforceable alright and with most people most people may not have a problem with that but you have to be mindful of it we're a non solicitation obligation could be very important is maybe you're in a sales position you have a book of business well if you're a let go and you sign a non solicitation obligation you'll now may be unable to access this book of business and this book of business may be what sustains you so you have to be very careful very mindful of that in some situation in a solicitation obligation could be extremely problematic so again if you don't you're not okay with it if it's not agreeable to you you can't just sign it you have to think about it a negotiated and if it is problematic enough that you think down the road it's gonna cause you a lot of grief you may consider not accepting the offer if you cannot negotiate so non solicitation or obligation something you have to be mindful of a non-competition obligation even more so even though strictly not enforceable there's also confidentiality obligations and an employment agreement usually you don't have a problem with that the only reason I'm raising those is you may have a five-page employment agreement and in two pages are dedicate to confidentiality and some people may be worried about that there's really no no reason to I don't know why someone would take two pages to draft confidentiality usually the point of kind of confidentiality is that whatever you've learned from your employer that's not otherwise in the public domain you cannot disclose but be made mindful of competition be micro of non solicitation and we'll talk in a few minutes about how we negotiate those things but before we do that there's another category of yes and so that this next point applies to clauses in employment contract that allow employers to change you make unilateral changes to your compensation for example or job functions or office location in the in the abstract so in the absence of a of a clause like this in the contract unilateral changes to the contract of employment are not permissible on either side especially on the employers side the employer having more more more power in the relationship and so employers try to protect themselves from this from this situation by introducing very broad sometimes very broad terminated sorry clauses that allow them to make changes to to their employees terms of employment in the future and be protected against constructive dismissal claims so for example changes in compensation those in the absence of a clause that allow that allowing employers to to make those changes it's easier for an employee to claim constructive dismissal if the compensation the salary goes down by let's say 10 or 15% with with a clause that signed by the employee at the time of the hire that the employer is allowed to make to make such a change obviously the the constructive dismissal claim becomes either more difficult to make or impossible and so make sure you understand which what powers you give to your employer when when you sign when you sign the contract and look out for these clauses that that just give the employer a lot of discretion and so I believe that that's that's a good point to keep in mind and if you there's a lot of room for negotiations right so if you're not comfortable with with how broad the discretion of the employer is try to try to bring some scope into into that into that clause at the time you negotiate the contract it's important to keep in mind that contracts are enforceable if they're signed before at the time of the hire before you you get hired and contracts that are presented to employees in the middle of their tenure contracts which try to take away entitlements or or rights from employees there they are not enforceable unless certain certain requirements are met and so again if you sign a contract in the middle of your employment again a few that it may not be enforceable and contact a lawyer and and and find out what your rights and obligations are yeah and then you know to emphasize some of what Willie was saying can you imagine you you you've worked hard to negotiate terms you agree to your salary you for week you vacation your job duties but you also gave the employer the power to change all those terms so I asked what's the point of a green to anything what's the point of a green to salary of $60,000 if you've also told the employer in the agreement you can change it at any time may as well just take a job and say hey just pay me whatever you want and give me whatever job you want so oftentimes an employment agreement doesn't take that or give that flexibility to the to the employer and to the detriment of the employee so you want to be careful as an employees are you giving your employer the power to change the terms of your employment your employer should not have a right to change the terms of your employ Employment unilaterally so one thing if you both agree but not unilaterally so to be very careful of that see if the agreement says that if it does that's a bad thing that's something that should definitely definitely be deleted now by now you're all scared you don't want ever look at an employment agreement that we will just sit at home and not work obviously well that's clearly not an option so the good news is when a few that are scared you we're also here to tell you that you can negotiate these terms and I want to share some thoughts with you about how we go about negotiating employment agreements no negotiations generally certainly when it comes to employment agreements often house is about left or Tranter it's about having something that the other side wants and you may think as an employee well you know what I don't have any leverage I want the job the employer has the job so what leverage do I have well let's look at it this way an employer may go through several rounds of interviews so after all these rounds of interviews they've had a first interview second interview they have check references they work really really hard and after this whole long exhausting process they found their perfect candidate you so at that point you have something that the employer wants yourself that's leverage and the question you have to ask you to stop is will your employer be willing to lose their perfect candidate the one thing works so hard to find because the employee raises some concerns about say job security oftentimes the answer to that is no so remember that you you have leverage you have something you have yourself your skills the ones that the employer found to be perfect for them so because of that you have leverage now how do we approach our employer well first of all I'll say you only buy the better if you come to us and ask us to review your agreement we may well point out 15 or 20 things that in the imperfect world could be changed to your benefit well what happens you think if you'll go to your employer without laundry list of 15 things well you'll probably send the wrong message you'll probably tell them that you're not really interested in the job that's a bad idea so what you want to do is you want to take that list of 15 things for example and narrow it down to the two or three things that you really care about the most and only approach the employer with those things maybe it's a termination clause maybe something else but you want to narrow down to the two or three things and how do we actually approach the employer well the best way I found is to approach them and usually I'd like to do this in writing so there's no question about what was said and first thing I would do is I would reiterate that I want the job and I'm the right person for that job so employer I'm very excited to start I know I'm gonna do exceptionally well in this job and I can't wait to start that's that employer I wanted to raise a couple of concerns and then you list what those concerns are and what you propose if you do it that way nothing bad will happen your worst case scenario by doing it that way is that the employer may say no we can't make those changes but the job offer won't be pulled off the table so because of that there is no downside okay so if there's no downside you should absolutely try so confirm your interest in the job and then of course I outlined the issues that you want there's really no downside or risk of doing it that way now remember what I said at the beginning that employment agreements are drafted by lawyers well if you think about that that means that employment agreements are not drafted necessarily by the employer they're drafted by their lawyer so the employer may not even know where I understand or appreciate what their own employment agreements if they didn't draft it so you actually have an opportunity to potentially educate your employer for example employers do you realize that this thing says that I can be let go at any time and get almost no compensation whatsoever I have concerns about that with respect to job security for me and my family and an employer may not realize that I may agree with you in fact that that's not fair so don't assume that just because something is written in the employment agreement the your employer is married to that term oftentimes the employer may not even realize or appreciate what that says so that's that's a valuable information that you have to educate your employer so approach them in a in a respectful way confirm your interest in the job and only fight the battles that matter and ultimately if you can't get the changes that you want you have a decision today you may decide to still accept the job or not I've certainly had clients over the years that cared strongly about soar so strongly about certain terms that they decide to walk away from the job that's a personal decision but we're here to tell you that if you're at least don't try to negotiate those terms you're missing out because in many many cases you're able to make those changes and by the way that's true whether you're dealing with small employers or large employers so you should always try keep in mind some of those thoughts I just shared with you and probably the best advice is before you negotiate you actually have to understand why you negotiate you should be understanding what the terms are you can negotiate some people understand so give us a call help us you know explain in plain English what your agreement says oftentimes they're drafted in a way that's not obvious or they can be confusing or complicated so we can hopefully you know explain it in a way that makes sense and once you know what the agreement says it gets much easier to negotiate because now you know what you need to negotiate just a very practical point to make it from make certain promises we were made to you during the negotiations and you don't see those points covered in the contract make sure you negotiate those points again or make sure that you confirm that those but make sure you bring those promises in the contract within the four corners of the contract so to speak because that's the only way to to make those promises enforceable later so if for example you were promised a bonus significant bonus six months in but it's it's not in the contract make sure you bring that strap in again otherwise a promise is just that an empty promise and you can't you can't rely on it later but as I like to say if it's not in writing it doesn't exist so they made you promises that's an excellent point that those have to be incorporated in writing and if your employer won't do that then you cannot count on it there's a reason why they wouldn't put it in writing so if they promise you a raise they promised your bonus they promised you a promotion whatever it is that has to be in writing otherwise it means nothing so keep those things in mind contact us with employment agreements if you lost your job of course give us a call over 90 percent of people that we speak with are offered severance offers that are our pennies on the dollars a lot less about the road so we always look forward to talking to you and look forward to coming back here again in two weeks so thank you and enjoy the rest of your day thanks