[Ep. 406] How to Fight for Your Employee Rights with David Whitten and Daniel Lublin

Hello, and welcome back to the More Money Podcast.

I’m your host, Jessica Moorhouse, and today we are talking employee rights, because if there’s one thing I know about my time as an employee before I became self-employed almost eight years ago now, it’s that I truly knew nothing about my rights.

I didn’t read my employment contracts, I didn’t negotiate, I worked overtime without getting compensated for it.

Basically, I did it all wrong.

I don’t want you to make the same mistakes as me, which is why I am joined by two experts in the field to walk you through what you should do before you accept any new job, how to set boundaries when you’re at that job, and then how to exit that job the right way so you get paid what you deserve.

I’ve got David A.

Whitten and Daniel A.

Lublin on the show, the founding partners of Whitten & Lublin Employment Lawyers based out of Toronto, Ontario.

And let me tell you, you want these guys on your side when it comes to everything from looking over employment contracts, making sure there are no red flags in there, to securing a good severance package.

You can find more information about them on their website, torontoemploymentlawyer.com or wittenlublin.com.

And I’m gonna include that in the show notes, and I’ve also included those links in the description for this episode.

They’ve also got a ton of great and free educational resources on their website, as well as a severance calculator and even a virtual lawyer.

But one thing I wanna make abundantly clear because we didn’t address this in the episode, the topics that we explore, the information that these amazing guests are providing really only pertains to employees who were non-union members.

If you’re a union worker, you’re part of a union, different kettle of fish, so just wanna put that out there.

So we’re gonna dive into quite a bit because I really wanted to make sure that if you are in a position, you’re an employee and you really don’t know where to start, we’re gonna cover it all.

So we’ve got quite a bit to talk about.

So without further ado, let’s get to that interview.

Well, welcome Daniel and David to the More Money Podcast.

I’m so excited to have you on the show.

I think this is a really important topic.

I’ve never surprisingly after almost 10 years of the podcast had anyone on the show to talk about employment rights.

And you know, I think the majority of Canadians and probably podcast listeners of this show are employees.

And I certainly was one for a number of years and I certainly did not know my rights and did a lot of things that I, looking back, I’m like, should have, you know, advocated for myself a little bit.

So we’ve got a ton of questions that I’ve come up with that I know listeners are gonna wanna know the answers to.

I mean, hey, this is kind of a free session or, you know, I’m sure you charge quite a bit of money for normal people to ask you these questions.

So this is kind of exciting for me.

But before we kind of really hit go, do you want to share a little bit more about what your firm does and why you really want more people to know about their rights in the workplace?

Sure.

Well, thanks for having us, Jessica.

It’s an honor and a pleasure.

We help people.

Seriously, though, our objective is to educate our clients and empower them in the workplace.

There’s a lot of, as we were talking about in the preview to this, like this is a well-populated area of law.

Now, when Daniel and I started our firm 15 years ago, it wasn’t necessarily as well-populated, but now there are a lot of firms out there that offer advice.

And our experience is that a lot of it’s pretty cookie-cutter, versus what we’re trying to offer is something that really taps into a compassionate approach to it, trying to educate people so that they’re empowered in the workplace, rather than just coming to us and saying, all right, we’ll take your money, we’ll help you, not being very specific as to how that’s going to happen, and then churning and burning the file.

We’re trying to approach it with more of a bespoke approach.

I know that’s a bit overused sometimes, but in this context, I think it’s accurate.

And I think the other thing that gives us a bit of an advantage is that we do act on both sides of the table.

We act for both employers and employees.

And a lot of the other firms out there are more myopic in their approach.

They’re either management side, like employer side, or their employee side.

And so they don’t typically see the interest in strategies that are employed on both sides, which is where we can fashion some unique approach to advocacy, because we do know what the employer is thinking about when we’re acting for employees, and we can tailor our advice and strategies to what their interests are.

Daniel, have I caught it?

Have I got it all?

Absolutely.

I would just add, David, that the time when people come to us, it’s a really critical emotional time for them.

We generally see our clients, whether they’re employers or employees, at a time of need because there’s a dispute.

And a lot of what we do to put a bow tie around is dispute resolution.

So when we meet our clients, whether it’s an employer that’s just fired someone and is getting huge blowback or an individual who’s worked for their entire career, and then wakes up one morning, walks in and sees a pink slip, and then it’s like, geez, what do I do next?

We meet people at the most heightened emotional state that they’ve been in in a very long time.

So it’s really important to work with a lawyer in this field who knows how it works, who knows what needs to happen next, because there’s a lot of handholding that happens earlier on, and there’s a lot of writing on it.

We could be talking about someone’s career entitlements, excuse me, their entitlement to a severance package after working their entire career.

What are they going to do next?

Are they wrapped up in a non-compete?

Like these are real material issues that significantly impact people’s rights.

So that’s why I say, first of all, that’s why I enjoy this area of law, because it’s not just looking at some paperwork and then determining like a corporate transaction.

It’s really helping people at a time of need.

Yeah, and I’d say the overall impact of what you do is like, that has a significant financial impact in people’s lives.

If you don’t know your rights, you could be leaving thousands and thousands of dollars on the table, potentially.

Hundreds of thousands.

Hundreds of thousands.

Yeah.

That’s why I fell in love with this area of law, and I know Daniel did when we were in law school, because it’s, first of all, the hours, the action is typically nine to five, so you have a fairly contained schedule, albeit there are a number of late nights nonetheless.

You’re dealing with something that’s very emotional for people, as Daniel said, and like I think the three pillars of most of our sense of well-being is family, health, and career, and family law, no, I wasn’t going to touch that with a ten-foot pole, it gets a little bit too emotional, perhaps a little too hot, too spicy, I would say, for my taste.

But employment law, you get to help somebody with something that’s very emotional for them and help them through the process in a way that hopefully, you come out the other end where they feel that they’ve learned something from it and that they’ve been taken care of.

That’s also nice.

Yeah.

I want to start at where it all starts, which is you survive the interviews, you get that job offer, and then you’re handed your employment contract.

What is the first thing that you should do when you get that contract?

Because I know a lot of us probably do it all wrong, and I’m pretty sure if I look at my, every time that’s happened to me, I know I’ve been leaving money on the table and did it all wrong.

So where should we start?

A lot of people think of employment lawyers as dispute resolvers or think of the area as someone’s been terminated and they need to sue or to protect their rights.

But a lot of people don’t give enough thought to going into the relationship, which is what you just said, which is what does your contract say and how does it impact you later on?

The most important deal you can make with your company is the first deal you make, is your employment contract because that contract can affect substantially affect what your severance entitlements are.

Nowadays, more often than not, you are most likely going to have a specific clause in your employment agreement that tries to define your severance entitlement.

More often than not, that clause will try to define your severance entitlement in a way that gives you less than you would otherwise be entitled to.

When I often talk to people coming into a new job, I say, wait a second, what do you stand to lose if you don’t have your employment offer reviewed?

I’ll give you an example about a client I recently worked with because it’s perfect for this situation.

I met with someone who was leaving a job, he was recruited to go from one company to the next.

He had spent a number of years at his former employer, he was given a job offer, called by a headhunter, went through the process, liked what he saw in terms of compensation, didn’t really pay a lot of attention to the fine print, the legal needs.

That’s where I get all worked up, because that’s where all the issues arise in terms of the fine print.

He started a new job, everything was great, and then six months later, the company announces a huge restructuring.

Not unheard of, but it happens all the time now.

He was unfortunately laid off, so he left a job where he worked for more than 10 years, spent six months at the new job.

Ordinarily, we would be looking at that and saying, wait a second, we want to try to attach some of your prior tenure, the fact that you were recruited from this company where you spent over 10 years, to what your severance entitlement is.

But then you open up the contract and take a look, and he had actually signed a number of clauses that said, no prior tenure will be recognized.

In the event that we terminate you for any reason, you’ll only be entitled to the bare minimum.

So that contract does matter, and it can definitely impact someone’s rights.

That definitely made it more difficult for us to try to negotiate a better resolution with the employer.

Oftentimes, you can try to pick apart that language, and that’s part of what we do as employment lawyers, is try to make arguments as to why that contract may not be enforceable, why it’s not fair, why it’s not right, why he was entitled to more severance anyway.

But the problem is you’re really working with one hand tied behind your back if you’ve signed bad language to begin with.

So I always tell people, it may only take an hour of time with a lawyer who’s knowledgeable in the area to get the advice you need about your contract, but if you balance that versus what you stand to lose if you don’t spend that hour, it’s well worth the time.

Absolutely.

David, anything to add?

Yeah, I agree.

I guess I analogize the search for new employment almost like a romantic relationship, in the sense that you go online, maybe less so nowadays, and you try to find a good match.

You match, you start going out for dinner, you have some interviews, and sometimes you fall in love.

What I’d like to say to my clients is, the timing is everything when it comes to raising the issues that Daniel’s identified.

You don’t start talking on the first couple of dates about the marriage contract, right?

That’s probably not the best time.

You want the counterparty or the person you’re with to fall in love first.

You want to start making out in the back seat of the car before you start having these conversations.

And so what my advice to clients is, look, your first stage is to try to win them over, to get an offer in hand, give the employer some ideas of the compensation you’re looking for.

I always suggest giving a range.

You don’t want to draw a line in the sand on that first couple of dates.

You want to give them some ideas to what you’re looking for as a range.

I like to tell my employee also recommending our clients that rather than just talking about base salary suggests maybe that you’re incentivized by bonus schemes, and we’ll talk more about that later in the podcast.

But really, it’s a sequence of events.

And the first objective for the employee is get an offer in hand.

And then what you tell the would-be employer is, look, thank you.

I really like the opportunity.

We’ve had a couple of great dates.

We’ve had a few kisses in the backseat.

We’re talking about getting married now.

But of course, I want to do my due diligence, and I want to have the contract reviewed by a lawyer.

And in this day and age, that’s not going to be a deal-breaker.

Like in fact, most sophisticated employers might be surprised if you don’t get legal advice on a contract.

Absolutely.

Yeah, that makes a lot of sense.

I think, though, when we’re talking about when you are in that position, I think one of the big concerns that people often have is, well, if I negotiate, if I voice any kind of concerns, will it get any blowback?

Will they rescind the offer?

Will it taint the relationship that we’ve been creating through the interview process and things like that?

I think that’s often why people don’t say anything or don’t have a lawyer look at it.

They’re worried that this may, what if they take the job away from me?

I don’t want to do anything like that.

Most companies, when they get to actually presenting you with an offer, have done so much background work and have put so much energy into sending that offer to you that the last thing they want to do is move past you and move to the next person because you ask for an extra week’s vacation.

You have to consider from the perspective of the employer wants to make this dance work too, and now we just need to get past the fine print.

I often give people this analogy.

I say, look, did you already ask for more money?

Did you already negotiate the financial terms?

Most people say, yeah, they offered me X and I asked for a little bit more to see if we can top up.

I’m like, okay, wow.

I’m like, if you were comfortable negotiating for an extra week’s vacation or a small signing bonus or a couple extra thousand dollars in salary, everything else that I’m suggesting for you to negotiate for is a lot less important to the employer at this point in time.

Like the fine print, the legalese, the severance entitlements, a future potential non-compete, some language around your bonus later on.

Anything that I would point out is far less intrusive in terms of negotiating up front, so you should feel comfortable about that.

When people say to me, hey, can that job offer be withdrawn?

The reality is, it’s possible, but it is so extremely unlikely.

I tell people it’s not if you should negotiate, it’s how you should negotiate.

Because as long as you negotiate this the right way, and that’s what David was saying about doing it the right way, the most likely bad thing that would happen is they would just say, no, we can’t make the change, take it or leave it.

But it is so extremely unlikely that they’ll pull the job away.

The only times where I’ve ever potentially, only ever actually seen that happen, is where someone basically went back with a new deal altogether.

I recently had a situation where I did see a job offer withdrawn for a senior executive.

She wasn’t even sure that she wanted the job to begin with.

She was moving from overseas into Canada.

She wanted to de-risk it entirely.

They offered her a big compensation package.

She had essentially an entirely new deal that she wanted to present.

And this is after they already spent so much time pre-negotiating that, that the company just said, you know what, this doesn’t seem like it’s the right fit for us.

And I think she realized at that point it wasn’t the right fit for her either.

But that is so unusual.

More often than not, they’ll give you some changes, especially in the last couple of years where employers have been really hamstrung finding good people.

Like we have to put into context the economy right now.

Companies have had a terrible time hiring talented people.

And the talent that they do have leaves and goes elsewhere.

So when they find someone who they think is a good fit, oftentimes they’ll bend over a little bit more backwards than they would have before to give you the language that you need because they need to get you in the door.

So you have to take all that into account.

I would definitely recommend you negotiate.

And there’s some really important language we can get to in terms of what you want to try to adapt or fix.

It’s valuable for you.

Yeah, I want to kind of get to some of that language.

And my only comment would be if, you know, because, like you said, it is possible for them to be like, yeah, we’re taking this job away because we don’t have a contract that’s signed and anything like that.

But I would say if that happens, that’s probably a blessing in disguise because why would you want to work for an employer who is like that, that isn’t, you know, on your team, that is not ready to do a little dance, a little negotiation to get you on board?

That’s probably not a good, you’re probably not going to like work in there.

Let me just say.

Some of what you can read into is the way the employer negotiates with you, is the way they may behave to you down the road.

Especially if you’re leaving a job for another one, and then they’re not prepared to move on some of the things that you think are really important.

I’ve always had people say to me, and I believe this, a job contract or job offer has to be win-win.

It has to work both ways.

If you have a company that just is steadfast, just absolutely refuses to move on some of the things that you find are really important, that should tell you a lot about what the relationship could be later on.

Absolutely.

Let’s talk about some of those potential financial clauses you may find in some of these contracts.

You’ve said you use the term legalese, which is absolutely the language of law.

It’s funny, my husband just took on this extra part-time role as an instructor at a college, and this was the first time he’s been self-employed for 15 plus years, and this is the first time he saw an employment contract in a long time.

He’s like, what does this even mean?

What words are they using?

Why can’t they just say what they’re talking about?

Oh yeah, it’s a different language.

Unfortunately, I couldn’t really help him.

So what are some things that you should look out for when you’re looking over your employment contract or when you’re working with a lawyer and you want to understand what’s going on?

Just as some example, there may be some talk about bonuses, stock options, retirement benefits, like you’ve said, vacation time, sick time, what should people look out for?

Yeah.

Well, there’s a lot of things, and this is where we make our hay in our business.

I mean, first of all, the circumstances that arising drive some of it, like Daniel brought up the situation where you have somebody who’s been recruited.

This is something where oftentimes at the executive level, they’re going to be forfeiting potentially bonus entitlements.

We talk in terms of short-term incentive plans, S-Tip or long-term incentive plans.

Long-term incentive plans are bonus compensation that vests or is earned over time.

So they’ll give you an award, say, of a certain amount in one year and it vests or you earn it in chunks over the next three to four years.

And so the first thing is if you’re coming to this job after having been recruited or you have an existing position and there’s an offer on the table with a new employer, you want to make sure that you have some compensation for the fact that you’re leaving behind these various forms of entitlement.

And then let’s talk about incentives because this is another issue that a lot of my clients will overlook without the help of legal counsels.

They’ll say, for example, the bonus will be expressed as a certain percentage of base salary.

So it’ll say you’re eligible for a bonus that’s annually equivalent to, say, 100% of your base salary or 50% of your base salary.

And it’ll say details to be provided, or subject to the terms of the bonus plan, or in the full discretion of the employer.

So I’ll have clients who will come to me and say, look, the base salary is a lot less than what I wanted it to be, but I have this tremendous bonus opportunity, so I want to sign on.

And I’ll say, wait, let’s pump the brakes a bit here.

A bonus is only as good as it’s attainable.

So let’s do some due diligence here.

So first of all, you might want to ask, what about the previous, if there’s position, if you’re filling a position that’s been held before by somebody else, to inquire what was the bonus, what level were the bonuses paid out last year for this position?

Just curious, to get some ideas to the extent that you pay out bonuses.

Because some employers have these wonderful bonus plans that are all the glitters that’s gold, but the reality is they haven’t paid them out for years, or they’re completely unattainable, the objectives.

So that’s the first question is to try to figure out, are these obtainable objectives?

But then, from a legal perspective, you want to bake in as much clarity as you can in that regard.

A formulaic bonus program is the best, tied to EBIT, like earnings before interest tax, depreciation, amortization, all these terms we use, or net profit, or gross profit.

You want to have something, ideally, that’s linear, that’s calculatable, so that you know at the end of the day that if I do X, I’m going to get X amount of bonus compensation.

Within that context, you’re still going to have a lot of employers are going to want to reserve this discretionary element to it.

You want to limit the discretionary element to, for example, a balanced scorecard approach on the personal side of it.

Because many of these bonus programs will say, all right, we have a financial component to it, but it’s also tied to your personal performance.

If you’re going to measure my personal performance, how is it going to be measured?

Is it just going to be like put a finger in the air and how do I feel about this person?

Or is it going to be tied to key performance indicators, KPIs, and what are those key performance indicators?

What is it that I have to do?

The other thing is you have to actually look at these policies.

The devil is in the detail, as Daniel has said, and oftentimes employers, and I don’t think they’re doing it intentionally, it’s sometimes it’s just their approach where they’ll say, all right, subject to the bonus plan, you’ll be eligible for a bonus equivalent to a certain percentage of base salary.

All right, well, I’ll have clients that will come to me, usually it’s after the fact, to Daniel’s point, after they’ve been terminated, and they’ll say, all right, I’ve been terminated, bonus was a huge part of my compensation, I want it as part of my severance.

And I’ll say to them, okay, well, let’s take a look at the bonus plan.

Did you have a look at that when you signed the employment agreement?

Well, a lot of the employees will say, well, no, they gave that to me later, and I didn’t really ask for a copy of it.

And so the problem we have legally is that if you’ve signed an employment agreement that says your entitlement to a bonus is subject to a plan, and the plan, you didn’t look at it very carefully, in that plan it may say, you have no entitlement if you’re terminated.

And so now we have somebody that Daniel and I will have to fight for to get compensated under the bonus plan during a severance period.

And yes, we can make a lot of creative arguments, and the law is certainly employee friendly in that regard.

But it’s a challenge versus addressing these issues at the outset so that you look at the plan, you go in eyes wide open as to whether you want to negotiate a severance provision that would encompass bonus compensation, even though the bonus plan says you don’t get it.

So that’s the next shift because severance provisions are probably next to post-employment obligations and compensation arrangements.

The most important thing you need to negotiate.

Yeah, no, I think that’s a great kind of a jumping off point.

And Daniel, I’ll kind of have you speak a little bit more to those non-compete, those non-solicitation clauses.

Yeah, to me, I’m like, yeah, I don’t want that in my contract.

I don’t want to be able to not work in my field for a certain amount of time because that means like, how am I going to earn a living?

So do you want to kind of speak a little bit to that?

Because I’m assuming, especially when you’re at a really high level, those are probably pretty common in those contracts.

Well, they are common.

The problem that people have is they seem to disregard them when signing a contract.

For whatever reason, and I find salespeople do this all the time, something about the art of the deal, they just seem to overlook, they focus here, but not there.

People seem to disregard them because there’s this general feeling out there that non-competes and non-solicits are hard to enforce.

Unfortunately, people combine the concept of a non-compete, non-solicit, they’re two entirely different clauses.

So people seem they have it in their head, they’ve heard it somewhere, they’ve heard it on the radio or whatever it was, non-competes are hard to enforce.

And that is true, certainly can be true.

But they just seem to disregard it when they go into the employment relationship.

And that’s a problem, okay?

It’s a problem because contracts matter, what you sign matters.

And even if a court may declare a non-compete to be illegal, non-competes in Ontario after 2021 are illegal unless you’re a C-level employee.

So even if a court declares a non-compete to be illegal, you don’t want to have to be the guinea pig who was taken to court for a judge to say that it was not a binding non-compete.

You don’t want to have to be in that fight.

If you are let go, you need to focus on your severance and finding another job.

The last thing you want to be doing is tied up, fighting with your ex-employer about whether you can go after clients, people, or whether you can even work in your industry.

So that’s why I tell people, look, there’s two approaches to this.

The first approach is either just assume that this non-compete is unenforceable and hope for the best, or assume that this language won’t be relied upon, which can in some circumstances not be a terrible idea.

But the other approach is, look, they’ve put language in your contract that will really, really limit you down the road.

Try to reduce it, try to negotiate it now, make sure that there is some clarity, because the last thing that you want to do if you are let go is have them throwing letters in your direction saying you can’t work in the industry, or we’re not paying you the severance you’re entitled to unless you sign on and agree that you’ll adhere to the non-compete that you previously signed.

Non-competes in Ontario, generally illegal, unless you’re a C-level employee, but that only applies in Ontario, it doesn’t apply across the rest of the country.

Non-solicits, if they’re properly drafted, will be binding and a non-solicit, just so you understand what it is, is basically says, if you’re in any type of sales position, you won’t contact your clients, or clients that you dealt with, or clients that the company dealt with, that you knew who they were dealing with, to come with you, encourage them to leave the business they were with, and to come with you to join you at your new company, or be in business with your new company.

So that can definitely impact you, especially if you’re in a sales role.

Yeah.

I mean, I’d say, especially if you’re in a sales role, you’re like, well, sales is all about people and contacts.

If I can’t take my contacts, I have no business.

So relationships, really, it’s relationships.

And if a contract says that the relationships stay at the company you left, you’re goodwill.

Absolutely.

I mean, you’re definitely, you’re definitely cratering the goodwill that you have.

Before moving on, are there any other red flags that employees should be aware of in an employment contract?

Things that you’ve seen before, and they don’t have to be common, they can be rare, but, you know, look out for this.

You don’t want this in there.

So we’ve touched upon most of the red flags except for this one.

I don’t think we’ve said the word probation.

Okay.

So that’s the big one.

I would almost never agree to have any of my clients enter into a probationary period if they’re leaving one job for another, if they’ve been recruited or headhunted.

And even then, I find probationary periods are almost most typically appropriate for junior or entry level jobs.

I certainly wouldn’t want anyone who’s in a more senior or managerial level agree to a probationary clause, especially because most contracts already have termination based language.

So probationary clauses really just give the employer the right to terminate you within a set period of time and give you nothing.

Those are so employer friendly, employer favorable clauses.

I really just try to strike those out.

Yeah, yeah.

I would also say notice of resignation provisions are something that people just gloss over.

All right, like, oh, it’ll say it.

Oftentimes, there’s this assumption that you just need to provide a minimum of two weeks notice of resignation.

But in fact, an employer can ask for a significantly longer period than that.

And some contracts, again, clever employers, well, if they’re worried about competitive employees, they’ll say, if you ever resign, we need three, six months notice of resignation.

And the employee will just gloss over it, sign on to it.

Then they go about their merry way and lo and behold, they want to leave their employment because they’ve got a better job offer.

But they’ve signed a contract that requires them to provide three to six months notice of resignation.

Those provisions are generally enforceable.

And it effectively ends up handcuffing them and also impacting their employability because a new employer will say, look, I love you, but I’m not going to wait six months for you to get here.

So I think that’s also something that oftentimes gets overlooked.

I want to kind of now move on to, let’s say, okay, we looked at the contract and we’re getting to work and we’re starting the role and really excited.

Now, when you are working, there’s a few things, especially now, because of COVID and how it’s really changed the workplace, that, and I’ve been seeing a lot of, I follow a few influencers who do, that talk specifically about when you are in the workplace, how to use your voice and how to advocate for yourself for things such as working over time, working a role that’s a bit different than or getting tasks that you’re assigned and you’re like, well, that wasn’t the original role I was hired for, or being contacted after you leave the office, and getting remote work, and then being called back into the office.

There’s all these things that I feel like we often forget about because we’re just thinking about for the contract, compensation, maybe some vacation time, and all the things that we’ve discussed so far.

But when you’re an employee, what are your rights when it comes to in the workplace, when your employer can contact you or ask you or change things?

I mean, again, in my personal experience, I know I never voiced some of my concerns of, are they allowed to contact me when I’m on vacation in Paris?

Are they allowed to ask me for overtime when I’ve already worked so many hours?

Are they allowed to ask me to come in at midnight to do the federal budget blog post for all the law?

Oh man, there’s so many things that I did.

I’m like, why did I say yes?

I thought I had to, but I probably didn’t.

So, the first place that people need to start is legislation which governs every workplace in Canada.

For provincially regulated workplaces, it’s the Employment Standards Act in each province.

For federally regulated companies like banks or airlines, it’s the Federal Labour Code.

That legislation is designed for the very items you talk about, which is to protect people’s rights on things like working hours, overtime, rest periods, break times, leaves of absence, maternity leave, reinstatement, anything you can think of is almost always captured in the employment legislation.

And here’s the kicker, an employer can never give you less than what is written in the legislation, even if it’s put into a contract, you cannot contract out of those rights.

So the starting point for people on some of the types of questions that you’re talking about is to what does the legislation say?

Fortunately, the provincial ministries of labourers have very easy to understand guides on lines about some of the simple things like, what are the overtime rules in Ontario?

A quick Google search can get you some information.

I normally don’t encourage people to rely on things like Google or even what the Ministry of Labour says.

But if it’s a really simple question like, what are my entitlements to a lunch period in Ontario?

You can find the answer that pretty quickly.

So you actually do have more of a voice when you think, when it comes to certain minimum employment standards because there’s black and white laws that just tell you what you’re entitled to.

The second place you should look is, what does your employment contract say?

Or we haven’t really touched on this.

What do the employer’s policy manuals say?

So here’s the thing.

Employers, they can’t get egg on their face, so to speak.

If they have a policy manual or policies and procedures buried somewhere on the internet, go in there, dust it off, see what it says.

Because if you can say to your employer in just a frank, straight up way, hey, look, your policy says that I’m entitled to overtime after 40 hours, but you haven’t been paying it to me.

What’s going on here?

If you can bring them back or hook them back into their own published policies, they have to comply with them because otherwise the policies aren’t worth the paper that they’re written on.

Look at what your employment contract says.

Does it say anything about how many weeks of vacation do you have?

So these are the places you would start, and then you have the in-between, the gray areas, and that’s where you need to get legal advice.

Can they demote you?

Can they change your role?

Can they reduce your pay?

Can they relocate you?

You’re not going to necessarily find the answers to those questions online in employment statues, in your employment contract or otherwise, where you’ll find them as talking to someone like David or myself, because that’s where we can inform you as to what your rights are.

Yeah.

I would add that when it comes to voicing these concerns, I’m going to come back to a practical way to do it because there’s the letter of the law that Daniel has identified.

But for example, the letter of the law is that the legislation, whether it be federal or provincial, is that you can’t take reprisal action against an employee for raising an employment standard minimum right.

So for example, to agitate for overtime over 44 hours in a given week, simply raising your hand and asking about that, you can’t be punished for that.

If you’re terminated for it, well, then there may be some additional damages that flow.

But I think what sometimes gets lost in this process is there’s, yes, that’s the law.

But practically, and a lot of my clients that are along the way will have educated themselves to an extent.

They before they’ve consulted with the lawyer, they’ve started to agitate in an aggressive way on some of these points.

And yes, there is legal protection against reprisal action being taken.

But unfortunately, there are more subtle ways an employer can disadvantage you if you’ve been branded a troublemaker, right?

They can all of a sudden, you start to find that your performance reviews are, you’re not getting as, doing as well in your performance reviews, it’s impacting your bonus compensation.

You can try to argue that this is because I raised a question about over time and demanded that I get, demanded that I get over time over a certain period of time or I demanded, don’t contact me when I’m in Paris.

I will not answer.

And I did answer, unfortunately.

Yeah, I just got back from Paris myself.

Yeah, so it’s sometimes, yeah, and with the time change, yeah, you’re a little bit convoluted.

I feel you.

That was kind of the beginning of the end for me though.

I’m like, you know what?

I think I’m not going to stay here.

Yeah, and so I hear you.

Yeah, but you know, there’s a way to approach these issues, I think, without poisoning the wealth, and it can be a softer approach initially.

Yeah, like you said, there’s the legal part of it and what your rights are, but then there’s also how do I actually do this in reality?

And most of us don’t want to burn a bridge.

We don’t want to piss off our boss because you never know.

One piece of advice I got early on in my career is, no matter what industry you work in, people talk, people stay in that industry for a long time.

You never know if you go to a different company.

Your old boss will, too.

You want to make sure that you’re making sure you don’t burn bridges unnecessarily.

And so you want to have maybe a softer approach of setting those boundaries or telling them, oh, you actually can’t contact me after such and such a time because of this instead of being like, no, I will not do that.

It’s like, yeah, people don’t really react well to that kind of approach in life, in anything, you know.

We always prefer, I think, a friendlier, softer approach in general.

I want to talk about some accommodations.

This is actually really interesting timing too because as my husband started this new role as an instructor, he actually has to approve or facilitate certain accommodations for students.

I’m like, oh, man, I never heard about this when I was a student.

I, again, didn’t know what my rights were as a student.

Now, this is actually pretty commonplace.

You can also do that in your workplace, especially if you really need them.

You have a disability, for example.

Let’s speak to what are some of your rights in terms of asking your employer for these accommodations or respecting certain things that you need.

When do you ask for these things?

Is it during the negotiations of the employment contract?

Is it after you’ve already started?

This is kind of a sensitive topic for a lot of people.

I’ve talked to a lot of people who’ve had maybe some mental health issues or some other kind of disabilities because there’s visible and invisible disabilities.

A lot of people don’t know how or when or if they should bring them up to their employer.

Yeah, this is a really challenging area.

The law is quote unquote clear that an employer has an obligation to accommodate to the point of undue hardship or legitimate request for accommodation.

All right, and I’ll come back to legitimate.

Well, I’ll start there.

Like preferences are not necessarily, like for example, if you have preferred, this comes up all the time recently.

I had a client of mine who just wanted to work from home.

Like enjoyed it so much during COVID times that when they started being called back into the office, they refused.

I don’t want this.

I mean, this is a story that’s plain out.

Oh, man.

Yeah, that’s very common.

Yeah, most people are like, I don’t want to go back to the office.

I love working from home.

Plain out across the country.

This is actually a test case because he’d gone and gotten some doctor’s notes from his doctor saying, look, he has anxiety in groups.

He can’t be in the office.

He needs to work from home.

The employer I could tell on the other side of the table was really having a tough time with this because the accommodation recommended by the doctor wasn’t really tied to anything.

Like you mentioned, invisible mental health issues, like it was tied to anxiety issues versus somebody that says, for example, has a back issue.

Often very common amongst desk workers now, especially in a certain age category.

I personally can attest to this.

Daniel’s standing for a reason right now.

You can’t sit for lengthy periods of time.

If you have a commute, like a two-hour commute, that it’s just not feasible for you to sit in your car, and therefore, you need to work from home.

That’s something that’s more ascertainable versus somebody that has a preference.

Because of this requirement to accommodate disability to the point of undue hardship, in this particular instance with my client, I could see that the employer was struggling, because what they were starting to do is, they were accepting the doctor’s notes, but they were starting to agitate for, well, we want to send you for an independent medical evaluation.

Our doctor needs to meet with you, because we’re not just going to take your GP’s word for it, that you have an anxiety disorder that prevents you from going into the office.

For example, do you go shopping?

Well, yes.

Well, you’re in crowds then too.

Do you go buy coffee at Starbucks?

Well, you’re in a crowd, and if you can handle that, then why can’t you handle coming into a cubicle and working from your desk?

I could see that the tension was starting to build there, and they were also starting to drill down on performance.

They were saying, look, you’re not meeting the performance requirements of the job from working from home.

In that case, it was an interesting case because I talked to my client about it, and I could tell he was frustrated about it too.

He ultimately said, look, I just want to leave, but I don’t want to walk away with nothing.

So I said, look, I think I can help you.

So this is where I think it’s an incredibly nuanced area, and when to raise it is your question earlier.

That’s an interesting point.

In your job interview, do you say, look, as you’re vying for the job, I have an anxiety disorder that requires me to take time off to get counseling.

Periodically, I have episodes where I can’t come in to work.

If you spring that on the employer in the job search process, as you can imagine, it’s not going to be a big green check mark next to your application.

They’re going to look at other candidates.

I think, yeah, that’s people’s worries.

If I tell them this, they’re not going to hire me.

Right.

So sometimes you want to keep it under your hat, those types of things until there is an offer in hand.

Okay, because then if you raise it and the offer is pulled, you may have some legal recourse.

Because if you raise it too early and you just don’t get offered the job, and then you try to challenge it, well, I didn’t get the job because I made this comment.

A lot of employers will be able to justify the hire on some other basis.

Yeah, not good.

Daniel, did they have anything to add there?

Here’s some practical advice for your listeners.

When I meet with people who have been let go or have left a company, and they start complaining about the fact that they had an illness or disability that wasn’t accommodated, the first question I have is, well, did you bring it up?

Did you assert it?

Did you bring it to the employer’s attention?

And then what happened?

And the people that say, no, I never touched it, or I felt afraid to touch it, or I just felt uncomfortable bringing it up, it really does create a problem.

So my advice is you have to have the conversation, maybe a tough conversation, maybe difficult to do.

But if certainly you don’t assert your rights, it becomes far more challenging to do it later on.

I want to kind of now talk, we kind of talked about getting the job, being in the job and what your rights are.

Now I want to kind of talk about leaving the job.

Now we already kind of touched on this, but I just want to make it really clear.

So when you’re leaving a job, there’s kind of a couple of ways you can go about it, which is you can quit it, you can be laid off or you can be fired.

I want to kind of start with quitting.

You mentioned that, you know, typically people assume you have to give two weeks notice.

Is that like legally you have to?

Because I always thought that was like just a best practice, a nice to do.

I never have looked at my employment contracts to actually read if they had a clause or anything.

And the last job I left, I actually gave them way too much notice.

I was being nice.

And also, I think I was trying to be like, but if you want to keep me, you know, I’m giving you time to reconsider.

This is your chance, yeah.

This is your chance.

They never did.

That’s okay.

I’m much happier where I am, but I give them two months notice, which if you don’t have, if you can give two weeks, give two weeks.

Two months is weird.

It gets awkward after a while.

You’re like, why am I still here?

So when you’re quitting, what are the best practices?

How, I guess, look at your employment contract first, but if there’s nothing that says how long, like, do you have to give any notice if you’re like, I’m out, can you just like leave on Friday and never come back?

The legal requirement is we have this legal requirement to provide reasonable notice of termination.

If your employer is initiating a discussion, there’s a corresponding obligation to provide reasonable notice of resignation.

This is perhaps one of the greatest misunderstandings in the public at large that two weeks is the number.

I don’t know where that came from.

It’s funny, I’ve looked, it’s never been, I haven’t seen any legislation required two weeks.

It’s something that just came out of the midst of time that people just have accepted.

That’s not true.

In fact, the legal requirement is to provide sufficient notice of resignation for your employer to infill or address your departure.

In some context, that could be lengthy.

To your point, it’s not a comfy position to be in, if you’ve already decided you want to leave that you’re stuck there for months.

But more importantly, your employer can also use this as a bit of a sword as well.

Because let’s say you’ve decided you want to leave to go to a competitor and they catch wind of it, and they don’t have an enforceable non-competition provision, they have no non-solicitation provision to rely upon.

What some employers will do is to say, whoa, whoa, pump the brakes.

We’re going to need at least two to three months to deal with you transitioning your duties, reestablishing client relationships, so you’re not leaving for two to three months.

Meanwhile, your new employer thought you were going to sail across if you told them two weeks, I’m going to be there in two weeks, your new prospective employer sitting there going, what the heck, we’re not going to wait that long.

Yeah, that makes a lot of sense.

Now let’s move on to termination and Daniel, can you talk a little bit more to, I guess, the different types of being dismissed?

Because there’s being laid off, restructured is a new term that keeps on popping up, which is I feel like a fancy way of we’re trying to figure out a way to get rid of you, let go fired.

What are the different mechanisms in which an employer can let you go?

As far as we’re concerned, it’s all the same thing.

If an employer has instigated or initiated your departure, more often than not, they have to pay you a severance.

So we really shouldn’t focus on what it’s called.

It’s an exit.

And if they’re initiating the exit, then we have to start talking about what your entitlements are.

There are only, there’s only one way which you wouldn’t be entitled to a severance package.

And that’s if the employer has just caused to dismiss you.

And what your, what your viewers and listeners need to understand is the threshold for an employer to demonstrate just cause to prove that there was misconduct to fire you without any severance is extreme in Canada.

They basically have to demonstrate that your misconduct was so severe that no lesser form of punishment would be appropriate.

This is considered the capital punishment of employment law.

So we’re talking about things like theft, dishonesty, breach of trust, the most serious things.

If you’re fired because you sexually harass someone, an employer can say, I don’t owe you severance.

But in every other situation, regardless of what it’s called, if it’s a restructuring, a layoff, lack of work, elimination, we just don’t like you anymore, all of that means you’re entitled to a severance package.

So then we get into the good stuff.

How many months of severance are you entitled to?

How do we calculate your compensation during the severance period?

What other perquisites and benefits does the company have to provide you during the period of severance?

So I think where people sometimes get a little bit caught up is they hear the different words that are used out there.

Oh, the position was eliminated or you were laid off or whatever it is.

Bottom line is, unless the employer had a sufficient and proper reason to terminate you without any severance, you’re entitled to compensation.

I guess the other element people probably think about is, I want to make sure that not only do I get severance, but if there’s a gap between me trying to find a job, I can get on EI.

Because I know EI, it’s like you lost your job out of no fault of your own.

So I guess that’s really like, if there’s a constructive or a cause for dismissal, that may not be something that you’re entitled to.

Well, this is an important component of what we do here, is we assist people to negotiate what the departure looks like, how it’s characterized to potential other employers, and also how it’s characterized to the government of Canada.

So when somebody’s let go, a company has an obligation under law to give them something that’s called a record of employment.

It’s a form that’s filed online where the employer declares the basis for your departure.

If employers are left to their own devices, they often play around with that sometimes, and sometimes they do it because they don’t know better, and sometimes they do it because they’re being nasty.

So some of what we do here is we seek to negotiate the characterization of the record of employment to ensure that if somebody’s unemployed after their severance runs out, they’ll have no issues getting or obtaining employment insurance.

So it’s really important to have those things looked at to put some thought into how your departure will be characterized in your record of employment.

And also, I do spend a lot of time with people in terms of negotiating how their departures will be referenced to other employers, referenced externally and internally.

So one of the things that we do in a negotiation is try to put some language around to put some energy and thought into how your departure will be referenced externally or internally.

And just to, you know, I know we’ve touched on this a little bit, but just to make sure it’s super clear.

You know, why is it so important that your severance package specifically is reviewed by a lawyer?

And again, at what point, I guess that’s still you do that in the initial employment contract.

But, you know, again, is it too late to change things after you already signed it?

I guess that’s maybe where you kind of come involved and become involved and see if you can help the employee who’s being, you know, let go.

Yeah, so it’s a huge mistake not to have your package absolutely significant monumental mistake.

First, your employment contract may not deal with severance or the way it dealt with severance may have been illegal.

We touched on that before.

A lot of these clauses around severance are just not drafted properly.

Second is, and it’s unfortunate, but it’s true.

In Canada, there is a culture and the culture of terminations is that employers offer people or tend to offer people less than they’re entitled to.

Possibly, they expect that people will negotiate.

Possibly, they’re just cheap and they don’t want to pay more.

But this is like, I have a filing cabinet full of cases where people are successfully disputing severance packages.

The bottom line is companies don’t want to pay you to not work there.

They offer you less than you’re entitled to, and they see if you are prepared to sign off without having a lawyer look at it.

Some people will do that.

There are a percentage of people that are happy to receive anything at all, and they’re just going to sign on the dotted line and not look at it.

In our experience, we can almost always find significant improvements to your severance package that the employer didn’t think about.

There are so many different elements.

There’s the financial element, how many months of severance, how are they calculating your severance?

Are they giving you proper compensation in lieu of any bonuses or commissions that you’re entitled to?

There are non-financial things, some of which I touched upon like how will your departure be referenced internally and externally?

What about post-employment obligations?

And then there’s the structure of a severance package.

So sometimes you may get, and I’ve talked to people all the time who are given what seems to be decent-looking severance packages, but the structure of them is problematic.

Is the employer offering to pay you over time?

What happens if you find another job?

Are they going to cut that back or offer you less severance, which is fairly common?

Are they giving you a lump sum payment?

Is alternate definition, excuse me, is alternate employment defined in any proper way?

What’s happening to your benefits?

There are so many different elements and layers to this.

Bottom line is you may think that the number is appropriate, but there’s so much more than the number you need to look at.

Absolutely.

Now, I know we’ve touched on a lot in this episode.

This is a great, great episode that I think will help a lot of people get a better understanding about what their rights are and what steps they need to take in different situations.

But for listeners, is there anything else you’d want them to know in terms of their employee rights that pertains to their financial future that we haven’t touched on already?

I would just say be proactive.

Rather than coming to a lawyer after things have blown up or after you’ve signed on to an agreement or been in a dispute with your employer, it makes a lot of sense to speak with an experienced employment lawyer and find a good fit.

Because a lot of lawyers are under the impression that the bulldozer approach is always the best, the shotgun approach sometimes we refer to it as.

And my experience tells me that in a vast majority of situations, finesse is a better approach.

Again, driven by your client’s objective.

Like if you want to exit, sometimes we’ll break out our swords at an earlier stage to encourage that.

But often there’s more to be gotten with finesse rather than punching somebody in the face and asking them for more money.

So I would just encourage people to, yes, find a good fit and explore with the lawyer how they’re going to go about it, getting them what they want, achieving their objectives to ensure that it is a nuanced, bespoke approach for their situation.

I would just add, I often talk to people about the concept of lawyering up, and sometimes I feel like I’m coaching them because they feel a bit picky about having to enter into what they feel is like an acrimonious situation by getting a lawyer involved for anything in the employment relationship, but mostly around departure and disputes around departure, like are you receiving a proper severance package or not?

The bottom line is this, you need to think about yourself, you need to think about your family, you need to protect yourself.

I tell people and I genuinely believe this, the best deal that you will get for yourself is not the one that you’re pushing back on, and oftentimes your employer needs to see a show of strength, especially if you’ve been let go, in order to get the best deal that’s available to you.

Knowledge is power, and also strength can be power in these situations too.

It can be very valuable lawyering up because oftentimes, like I said, employers don’t want to give you, they don’t want to pay you not to work there anymore, and you have to show them that you would be prepared to go to court to enforce your rights in order to get what you deserve.

Now, before I let you go, where can people find more information?

I know you guys have a really great website with a lot of additional resources and there’s a chat on there, or there’s some mechanisms that can help people, or some calculators.

Do you want to share a little bit more about, people want to explore this more, maybe they’re in a situation right now, they’re like, oh, this is very timely.

Where can they go find that stuff?

First thing I would say is to get in touch with us is to hop on our website, torontoeemploymentlawyer.com or wittonlublin.com.

You’ll get right to us.

We have basic, awesome guides that talk to people about the process, what happens if you want to speak to a lawyer, what happens if you hire a lawyer.

We have basically a virtual lawyer that can give you information on some of your background rights.

Get in touch with us, speak with us.

We can get you a consultation and talk to our lawyers within 24 hours in almost all situations.

If you have questions, start with getting on our website, speak to any of our lawyers, talk to David and I, we’d be happy to assist.

Well, thank you, Daniel, David.

This was so much, I was going to say so much fun.

I had a good time, so I’m going to say it was a lot of fun and it was super educational.

I learned a ton of stuff I wish I knew earlier in my career, so hopefully, everyone listening can have learned probably at least five things from this conversation.

But I think the biggest takeaway is be proactive and educate yourself, because my whole thing is educate yourself, but personal finance because no one’s teaching you this stuff.

No one’s teaching us about our employment rights, but we’re entering these companies as employees, and sometimes that is our career for decades and decades, and we don’t even know if we’re playing the game right.

Might as well learn the rules.

Thank you so much for taking the time to come on the show.

It was a pleasure having you both.

Thank you.

Thank you.

And that was the episode with David A.

Whitten and Daniel A.

Lublin, founding partners of Whitten & Lublin Employment Lawyers based out of Toronto, Ontario.

If you want to learn more or check out that severance calculator, the virtual lawyer, all of their free resources on their blog, or get in touch with them, because maybe you’ve got contract for someone to look over or you need some advice, because you want to leave your employer, or they’re trying to exit you.

Make sure to check out their website, torontoemploymentlawyer.com or whittenlublin.com.

I’m going to include those links in the show notes for this episode or in the description of this episode, wherever you’re watching or listening, so it’ll be very easy to find them, but make sure to check that out.

And in case you ever want to know, how do I find the show notes for the website, there’s basically more information about the episode, links to the guests, all these kind of extras that are housed and live on my website.

Just go to jessicamoorhouse.com/podcast.

Or if you know the episode number, go jessicamoorhouse.com/thenumber of that episode.

It’ll direct you right to that episode’s show notes.

And if ever you’re in a position where you’re like, what was that episode I listened to like a year ago and it was sort of about this topic and I think this was the guest, but I don’t know.

Honestly, I don’t mind if you email me, jessica at jessicamoorhouse.com or DM me on Instagram.

I remember every single guest I have on the show, so I’m happy to direct you to the episode, the show notes, whatever you need.

A few things I want to share in case you don’t know.

Number one, I do have a contest going on right now.

I’m giving away a bunch of copies of different books that were written by guests of the season of the show.

If you want to enter to win one of those books, go to jessicamoorhouse.com/contest, and you can enter to win and I will be drawing those names when this season ends, which will be end of December-January.

Speaking of books, hello.

I also have a book.

Last week, if you missed my special announcement episode, I announced that I’ve got not only a book coming out, but the details surrounding that book that I’ve been holding very close to the vest for a very long time, but finally got the green light to share all that stuff.

If you missed it, make sure to check out that episode.

You can also watch it on my YouTube channel because I do reveal the cover, which if you’re listening to this, you can’t see.

But you could actually find all the information about the book, which is called Everything But Money, The Hidden Barriers Between You and Financial Freedom, if you’re interested.

If you go to my website, jessicamoorhouse.com/book, that has information on where you can pre-order all the exciting bonuses extras that I’m giving away specifically, especially to people who are pre-ordering.

You will not get access to any of these if you buy the book after it’s on shelves.

Sorry, this is just for pre-orders.

And how to make a pre-order if you’re in Canada or the US or internationally.

I’ve got all of those links and information.

And again, the cover you can see, which I’m really excited about because I think it’s beautiful.

Quite honestly, I think it’s quite beautiful.

So really, that is it for me.

Thank you so much for listening.

And I will be back next Wednesday with a fresh new episode of the More Money Podcast.