It’s possibly the worst fraud in workplace law – corporations, with expensive lawyers and deeper pockets, insisting that employees sign one-sided contracts that reduce their legal rights. And employees, without bargaining power or an understanding of the law, not realizing their interests have been undermined.
The result is employees unknowingly agree to be dismissed with minimum notice, demoted, banished to far away jurisdictions, see their salaries slashed and prevented from competing with their employers following their departure all without recourse. Given these perils, what are some of the clauses that employees should look out for?
Probationary periods: Employers don’t just use probationary periods to assess fit; setting a probationary period allows them to dismiss for reasons that would otherwise be insufficient. The employer needs only to show that, in its opinion, the employee was unsuitable for the position. If these considerations are fairly assessed, the employer can end the relationship suddenly by providing only minimum notice or pay, or often less.
Termination clauses: Without any language surrounding termination in a contract, employees are entitled to reasonable notice of their dismissal, based on how long it would take to find another job. However, if some other amount or formula is stated in the contract, it will usually provide for less than what is reasonable and often only the minimum amounts required by law.
Contractual changes: Once the job begins, adverse changes to the job are prohibited without a sufficient warning or that employee’s consent. However, employers will look to the contract first, and there is a clause clearly providing for that change, no matter how obscure, they will find the employee had already agreed to it.
Post-employment restrictions: An employee’s only implied duty upon leaving is to keep information or trade secrets confidential unless other specific post-employment duties or restrictions are written into the contract. However, if a contract provides for it, employers can prevent employees from working for a competitor, or soliciting clients or former colleagues upon their departure.
What should employees do?
First, review any new contract with a lawyer and don’t be reluctant to negotiate terms. Second, challenge the enforceability of these contracts where the facts present that argument. I have won in court by raising the inference that a contract was signed without proper consent – such findings are not exceptions.
Daniel A. Lublin is an employment lawyer with Whitten & Lublin LLP. dan@toronto-employmentlawyer.com
