I am not a lawyer and I make no claims to be one; however, I have worked as a leader, and manager, and have seen many questionable things in my career. I have found people with and without work experience can be vulnerable; often they are not aware of their rights, they can easily be intimidated, and because of financial burdens they have limited options.
The genesis of this particular post was the result of a friend asking for my thoughts on her new employment “contract or agreement.” After reading it, I made several suggestions to help her and she encouraged me to share them.
Never sign anything you haven’t read. Just because you haven’t read them or understood them does not mean they are not legally binding. Your employer has a responsibility to clearly explain what is in their agreement and to answer your questions before you sign.
Take the time to read the complete agreement before signing. If you have any questions, make notes, ask your questions, and be satisfied with the answers before signing. Remember every word in their document was put there ON PURPOSE, everything is important for you to understand.
Be careful of agreements seemingly prepared by a lawyer and without considering having legal advice yourself. Most employment agreements are simple, concise, and easy to understand; if you are presented with one that is not consider asking for clarity. If you are bullied or pressured to sign that is a red flag to consider finding a different job.
Ask to read the ‘employment agreement” before accepting the job offer. Far too many new people are only presented with their employment agreement on their first day. If a person has already quit their previous job or moved to a new city or town, their options are dramatically limited if they are unhappy with the agreement or have found it dramatically different than what was promised in the offer.
Keep copies of everything you sign. Although this may seem like common sense, it is remarkable how few employers actually provide extra copies for their employees.
If at any point in your employment, your organization wants to change the terms of your agreement, ask for it in writing. You have rights, as well as obligations and if there is a significant change in your duties and/or pay; there are resources available to you. The tool, “211” is available in most communities and can help you identify resources, your local labor board is also very useful. When contacting these or other resources, stay calm, prepare your notes with a list of questions, and be persistent.
If you feel harassed or intimidated, seek help, and document facts, dates and times, and potential witnesses. All organizations of every type are legally bound to investigate and act on complaints of harassment in their workplaces. If internal processes don’t work, use 211 to find local legal clinics, counseling, and other organizations that exist to assist you.
In virtually all jurisdictions, anyone can be terminated without reason in the first 90 days of employment, this is a normal probationary period. However, some companies, like my friend’s decided to use a 6-month probationary period. This particular organization incorrectly claimed someone could be terminated for any reason in that 4-6-month period without notice or without compensation and this is incorrect and a violation of the labor code in their region.
Employment agreements cannot violate labor laws. Employees cannot sign away their rights just because a certain employer attempts to do so. I am not advocating creating a confrontation, I am advocating knowing your rights and seeking constructive help when you feel you have been treated unfairly.
If your probationary period is terminated after working for 90 days, depending on the laws in your region you will be entitled to notice or pay-in-lieu of notice. In Ontario, your employer is required to provide one week’s notice or pay you one week’s pay to end your employment. The longer you have worked for this organization, the more notice or pay they are required to provide.
Anyone can be fired. Usually, organizations only do this in extreme situations. Even good employees can be let go, the organization just has to provide severance pay.
The exception for having to pay severance happens when employers terminate someone for “just cause.” There are a multitude of reasons including theft, violence, other criminal activities, etc., that could constitute “just cause.” It is possible to take legal action against wrongful dismissal, it can be time-consuming and expensive but that is your right. To protect yourself, always document any unusual situation that occurs: dates, times, facts, and witnesses. For the vast majority of jobs, you might never need it, but it is helpful if you feel targeted. Use 211 to find resources to help you.
In my friend’s employment agreement, one line stated, “The employee will have no claim or right at common law for any notice or benefit beyond the minimum requirements as set out in the Employment Standards Act.” This is not something I would ever agree to, especially if you are a senior manager and it would be something, I would insist be removed from the agreement before accepting the position.
You can ask for items to be removed from your employment agreement. Some employers may make this exception and it is not uncommon to have minor elements modified for some employees. The employer also has the right to refuse, which is all the more reason to read the agreement before accepting this position.
Many people are under the mistaken belief they are ineligible to claim Employment Insurance benefits if they have been “fired with cause.” Most governments allow you to appeal decisions regarding employment insurance and even if you have been fired, you may still be able to claim benefits.
You should have access to your personnel file. In Ontario, you are entitled, to be able to ask to see your employee file at any time and view its contents.
Confidentiality and privacy agreements are not uncommon. Ask for clarity and/or legal advice; however, for anything that restricts your ability to gain employment even after you no longer work for the organization.
Be wary of “The employee acknowledges that the employer has provided the employee with a reasonable opportunity to obtain independent legal advice concerning this agreement …,” when you haven’t. If an employer makes a statement similar to this, consider “pressing pause” to get some legal advice.
Weekly Hours of Work/Over-time. Although your region may be different, in Ontario, you have the choice of either being paid overtime for time worked over 44 hours per week (plus you can refuse overtime without penalty), or you can accept to average your hours to 88 over two weeks and only be paid overtime for more than 88 hours. Additionally, in Ontario, employers are supposed to have your written agreement to work more than 8 hours a day.
You have the right to look for another job if you are unhappy or being treated poorly. No job is not a life sentence, if you are unhappy or being treated poorly, look from something better. Ideally, look and find another job while you are still employed; there may be less financial stress to move seamlessly from one job to the next.
Returning to my reason for writing this post. My friend spoke to her employer after we talked, and they clarified all of their requirements, listened to her concerns, adapted some of the language, and things worked out for her.
Perhaps the employer would have been just the same without her asking her questions; however, she was in a vulnerable position and could have potentially been taken advantage of because (1) She was presented with their employment agreement for the first time on her first day of a new job; (2) She had left their old job and returning was not possible; (3) Although she hadn’t moved from an old town or city to take this job, she had bills and responsibilities and only limited savings, and (4) She had been afraid to stand up for herself and had been under duress to sign because they risked losing the job if she hadn’t signed.
Please take away from this post the knowledge you have rights. You have rights and the ability to ask questions and be treated with dignity and respect. Seek out knowledge to learn about your rights, it is easy using 211 and other resources. Read everything and only sign when you fully understand and prepared to accept the terms contained.
Good luck,
Paul.