15 Sep New employees need to protect their rights
Starting a job is an exciting time marking new beginnings, but it’s also an important moment for employees to ensure their rights are protected, warns Barrie commercial litigator Scott Hawryliw.
Often, when someone begins working for a new organization they are presented with an employment contract, which many sign without thoroughly vetting it, Hawryliw tells AdvocateDaily.com.
To truly ensure your rights are being protected, the best approach is to see a lawyer before adding your signature, he says.
“The starting point is to get advice before signing any employment agreement,” says Hawryliw, founder of SRH Litigation. “To be fair to them, this is a happy time — employees are thinking about how great this new position is going to be, employers are thinking about how the new hire will be a solid addition to the team. Everyone’s feeling good about the relationship.”
But, he says the employment contract exists for a potential situation in the future when the relationship deteriorates.
Hawryliw says the biggest issue he sees after the employee is terminated usually concerns restrictions to their severance payouts that are spelled out in the employment agreement that they often signed several years earlier.
He says the agreement may include references to severance packages where the employee agrees to the basic statutory entitlement, which is the minimum required by law in Ontario.
“For some people that could be a significant difference in their compensation,” Hawryliw says. “I have also worked with some employees whose defined termination entitlements in these agreements are better than the minimum.”
Having a defined entitlement could work well for the employee because it means they don’t have to later negotiate the terms of the separation, but the bottom line, he says, is that the termination package needs to be fair to both the employee and the employer.
The best approach to protecting your rights is by knowing what they are, Hawryliw says.
“That means paying attention when it comes to signing the employment agreement and getting legal advice,” he says.
While some may feel pressured to sign right away, Hawryliw says there is often room for negotiation, and how much you can push is a direct function of the leverage the employee has at the time.
An executive or those with a sought-after speciality that’s in short supply might be in a position to bargain for a bigger entitlement in the employment agreement, he says.
“The flip side of that is you need to be perfectly honest with yourself — if you’ve been chosen from among several candidates and are replaceable and there’s nothing particular about you that the employer wants, you may not have much negotiating power,” Hawryliw says.
But for the employment agreement to properly reflect how the relationship is going to work, its contents shouldn’t be a unilaterally decided by the employer, he says.
“It’s important for the employee and the employer to be on the same page, and that can help to avoid problems in the future,” Hawryliw says.
But Hawryliw emphasizes that whether or not there’s a written agreement in place, all employees have a legal contract with their employers.
“When there’s an unwritten employment contract, the courts will typically look at the historic practice in the workplace to make any determinations on severance,” he says.
In a situation where a current employee is being presented with and asked to sign a new employment contract, Hawryliw suggests consulting a lawyer.
“Although it may accurately define the terms of the employment relationship, it might be less than favourable than their unwritten contract,” Hawryliw says.