Welcome to our spooookiest yet! On this special Halloween edition of All Worked Up, Jill and Dana both tell their scariest cautionary tales of employment law. We start out tense as Jill confronts Dana about forgetting her costume, but the two reconcile and continue on. Our hosts discuss their spookiest employee and employer-side stories, while testing the limits of how long one can maintain a Dracula voice.
Full episode transcript below:
Opening: This podcast is produced by Nelligan Law.
Dana DuPerron: Welcome to All worked up, the podcast where two employment lawyers break down real-life workplace issues that affect real people.
Jill Lewis: And we’re super excited to bring you this podcast aimed at making employment issues interesting, accessible for employees and employers.
Welcome to a spooky episode of All Worked Up. I’m Jill.
Dana DuPerron: And I’m Dana. Jill, what’s got you ah-ah-ah-all worked up today? You know [cross talking 00:00:40] Dracula?
Jill Lewis: You know what has me worked up?
Dana DuPerron: What? Other than the new Taylor Swift album.
Jill Lewis: The fact that you didn’t bring your costume into the studio.
Dana DuPerron: I know. I know.
Jill Lewis: I have my Cruella de Vil wig waiting –
Dana DuPerron: I know, I know, and I can only get so much wear out of my Maleficent horns. But picture that. It would have been – I mean epic is a stretch, but a little bit funny, a little bit spooky.
Jill Lewis: Yeah. OK. Today we are doing – are we going to have the flashlights to our faces while doing that? I’ll take my flashlight off. All right, today we’re all worked up about the cautionary tales of the employment law.
Dana DuPerron: From beyond the grave.
Jill Lewis: The spooky, spooky stuff that you certainly want to avoid. So. I’m going to do an employee spooky story and you’re going to do the employer.
Dana DuPerron: I am the horror stories of employment law. Buh-buh-buh
Jill Lewis: Da-da-da. All right, so my spooky, spooky story is the spookiest thing that could happen to an employee is to have their settlement taken away from them.
OK, so we have sort of discussed this before, when you have a settlement, you’re likely going to sign something that says, you can’t talk about it, you can’t disclose the terms of that settlement except for legal advisor, a financial advisor and often immediate family.
Dana DuPerron: Or as required by la-la-la-law.
Jill Lewis: You been watching too much Sesame Street.
Dana DuPerron: So I’ve always told clients, yes, you can tell immediate family, but please be careful about telling your children because there’s this cautionary tale of a teenage daughter who wrote on Facebook about her parents’ settlement, and had the whole thing taken away.
Jill Lewis: Teenagers.
Dana DuPerron: Teenagers, right? So. OK.
Jill Lewis: I found the case Dana. The case is actually a Florida court of appeal case. Florida, am I right? Wherein the daughter of a head master, the head master who sued the school for age discrimination, and settled for a total of $150,000, $10,000 in back pay, $80,000 in other compensation, and $60,000 for attorney fees.
Dana DuPerron: Wow that is a tall –
Jill Lewis: It’s party in the USA. OK, so the settlement agreement says, you will not tell anyone except for attorneys, professional advisors, or spouse. And this individual told his daughter who was a student at that school. And little Miss – we don’t know her name – wrote on Facebook –
Dana DuPerron: Didn’t disclose her name? Disclosed everything else.
Jill Lewis: Mama and papa [Snay? 00:03:42] won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer. Suck it. In all caps.
Dana DuPerron: Oh God.
Jill Lewis: I love the article that got this. This charming comment was shared with her 12 hundred Facebook followers, many of who were students at the school. Obviously that got back to the school. This went all the way up to the Court of Appeal, and the Court agreed that this was an absolute breach of the confidentiality clause. Oops, there goes my papers.
Dana DuPerron: Frightening.
Jill Lewis: And the employee, the father, was required to pay back $80,000 – $80,000. Could you imagine if Georgia or Hazel had cost you guys 80 grand?
Dana DuPerron: I mean they’ll cost us more than that –
Jill Lewis: Exactly, but in a simple Facebook post.
Dana DuPerron: No, we can’t have social media.
Jill Lewis: So you have to be so careful about those ones, right?
Dana DuPerron: So careful.
Jill Lewis: And you can be stuck in that situation also – like that doesn’t mean that the other parts of the release where you can’t then still turn around and sue are not enforceable. Like, it’s not like, OK, I’ll just start from scratch.
Dana DuPerron: Nope.
Jill Lewis: Yeah, exactly. Now there are a couple of other cases in Canada. One that I did know about was that Globe and Mail case. So an employee – she – there was a settlement there and it was a few years later she wrote a book. And she wrote in the book that the Globe and Mail paid her a big pile of money. So that reference to a big pile of money cost her –
Dana DuPerron: A big pile of money.
Jill Lewis: – cost her a big pile of money. It cost her $209,000 for disclosing that in her book. Yeesh.
Dana DuPerron: Yeah. So I mean, like, how much did the book sell? Yeah. That is the question.
Jill Lewis: Was it worth it. And there was one more Canadian case – see if I can find it. I can’t. Well, anyways, but there it is. There’s your cautionary tales for employees. You have to be so careful who you tell. Don’t even whisper it. Shhh.
All right, there’s my spooky tale.
Dana DuPerron: So I’ve got a bone chiller for you then, for employers. I don’t have a specific case in front of me, but there are cases, and it goes something like this.
An employee has their employment terminated. And the employer doesn’t continue all their benefits. And the employee is entitled to common law reasonable notice of their dismissal. The employee during that reasonable notice period gets sick and is entitled to long-term disability benefits. But they don’t have coverage for long-term disability benefits because the employer cut off their coverage for LTD. The employer is now on the hook for long-term disability benefits for as long as that employee is disabled. And that could be up to age 65. So – or longer. Depending on the terms of the policy. The vast majority of policies cover you off till age 65.
So there have been a few cases. They aren’t always that worst case scenario, so there’s been some where, you know, the person fell into a depression as a result of the termination, and was disabled from working for a year, or something. You know? That’s not necessarily the end of the world because you also can’t usually get both at the same time. So the employer’s not on the hook for the month of severance and a month of disability benefits. It ends up being one or the other.
But, your long-term employee – and there’s one case where the guy got cancer during a 24-month notice period and I don’t know that – I can’t recall exactly, but if he was never able to work again, the coverage at that point becomes till age 65. Now, if you’re a longer service employee and you’re getting that 24 months, you’re probably older. So maybe the difference isn’t that huge. But what if you have someone who is 40 years old? Ten years’ service and you fire them and you don’t continue their benefits. They have no contract. They’re entitled to common law reasonable notice. What’s the reasonable notice period? They make $100,000, 40 years old, 10 years’ service. And they are a manager of HR.
Jill Lewis: Mmmm…. Twelve months.
Dana DuPerron: OK. So that makes sense. Somewhere in that range. But at the 11th month you haven’t continued their benefits, they get hit by a car and can never work again. On the hook. Potentially till age 65.
Jill Lewis: That’s a very expensive error.
Dana DuPerron: Yes. So. Something to consider. Continuing those benefits if you can .and at least getting a release. And if you have someone who’s sick, not cutting ah-ah-off those benefits. And that is my one spooky Halloween noise that I am aware of that I can do. So.
Jill Lewis: Oh-oh-oh. I have two [cross talking 00:09:21] I’m not going to be able to sleep tonight.
Dana DuPerron: Yeah, oh no, there might be, like, LTD popping out of my closet, or someone whispering the terms of settlement through my room at night. Those are our horror stories. That’s what has us All Worked Up on this special Halloween edition.
Jill Lewis: Spooky Halloween.
Dana DuPerron: Happy Halloween.
Jill Lewis: Happy Halloween.
Dana DuPerron: Don’t eat too much candy.
Jill Lewis: Watch the costumes that you wear at work.
Dana DuPerron: Yeah. Yes, yes. Oh yeah. Halloween parties. Be careful. Wear appropriate costumes. Happy Halloween.
Jill Lewis: Happy Halloween.