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Most people will not think to visit an employment lawyer until something negative happens, such as being terminated. While this is clearly a time when you should definitely see an employment lawyer, in order to ensure that your rights are being respected, there are also good reasons to visit an employment lawyer even before starting a new job.

One of the main reasons people seek legal advice when it comes to employment matters is after they have already been dismissed. What you may not know is that what you are entitled to upon the termination of your employment is often explicitly stated in your employment contract or offer letter by way of a termination clause. This clause, if it exists, will most often try and limit you to your statutory minimums under the Employment Standards Act (if you work for a provincial employer). However, your statutory minimums are only that – minimums. In many instances, these minimums would be completely inadequate given your circumstances.

For example, say you had worked for the same employer for a decade and then were recruited by another employer for a new position. Most people would jump at this opportunity, especially if it was accompanied by a higher paying salary, a more lucrative bonus, or even a guarantee of advancement. What you are giving up, however, are your entitlements upon termination from the previous position, as your length of service is one of the factors that determines how much you are entitled to. Even if your length of service was decent with your former employer, you would be starting back at zero if you accept this new opportunity.

Now, before signing your employment contract with this new employer, it is to your advantage to negotiate a suitable termination clause as a result of what you have given up to be their new employee. An employment lawyer can help you understand how a termination clause works, what would be a suitable termination clause for you given your previous employment, and assist you to either negotiate this clause directly with your new employer or do so on your behalf.

Another example is if you have another job on the side, or are self-employed. Your new employment contract could try and limit the possibility of you engaging in any other type of outside work, be it related to your new position or not. Again, an employment lawyer can help you understand what you are entitled to do outside your new position, and if you do not agree with these terms, can help you change them.

It is hard to imagine having any sort of bargaining power with a new employer – but you do.

It is important to remember that by the time an employer has gone through the entire application and interview process and has chosen you as their new employee, they have a lot to lose if you walk away. Although many new employees feel vulnerable when receiving a copy of their employment contract, feeling as though they need the job and therefore cannot negotiate any of the terms within it, employers are actually at their most vulnerable at this time. They have already invested so much time and money into selecting you that they cannot afford to have you turn down the position. This does not mean that they will never let you walk away, especially if you are being completely unreasonable, but you do have the ability to negotiate more favourable terms for yourself.

We can help you do this. It is once you sign that new contract that you are at your most vulnerable, as you are now reliant on this new job and bound by the terms you have agreed to. Know how they apply to you, and speak to an employment lawyer. 

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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