Description

Jill and Dana discuss what to keep in mind when starting a new job. They talk about contract negotiations, risk management, and non-competition clauses. They realize employment law might have magic number, as a new “Big 3” comes to light. They explain which details a lawyers can help flag in an employment contract to make sure you are protected.

Full episode transcript below:

Intro: 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. I’m Dana DuPerron –

Jill Lewis: I’m Jill Lewis and we’re Senior Associates at Nelligan Law and we’re super excited to bring you this podcast aimed at making employment issues interesting, accessible for employees and employers.

Dana DuPerron: Welcome to All Worked Up with Dana and Jill. Today we’re getting into one of the big substantive topics, the start of the employment relationship and things that you should be considering when starting a new job.

Jill Lewis: Yeah. Yeah, absolutely. So if you’ve got a new job coming up or you’re thinking about leaving and maybe moving to a different company or something like that, we’re going to go over a couple of the things to keep in mind, probably just starting with the position that you’re in.

Dana DuPerron: Yeah. That’s what I thought was worthwhile starting with is if you’re thinking about leaving.

Jill Lewis: Yeah.

Dana DuPerron: So are you in a position where you’re in one job, you’re looking for a change or are you in a position where you’re between jobs right now, or you’ve been out of the workforce for a bit and are just trying to get back in or whatever because it’s going to matter. Because if you’re leaving a job, you want to make sure that the new job has the same or better terms than what you had before, generally. Sometimes they can be different but that’s something to consider. This is pretty niche but I’m going to throw it out there because I just want to make sure that it’s said and that it’s covered.

If you’re someone who has been on a disability leave recently, in your job you have coverage through your employer for short or long-term disability and you’re going to a new job, that’s something you need to – you should probably speak to someone about or think carefully about because if you still have coverage with your old job, there may be a clause in the new job’s contract that you don’t get coverage until at least a year has past or something for that disability. So I know that that is like a tiny-teeny – well a big issue but very specific to certain people but –

Jill Lewis: Some people …

Dana DuPerron: – I wanted to say it right off the bat just because I think it’s worth flagging, it’s something to consider.

Jill Lewis: I think it absolutely needs to be flagged, right, because a year can be a long time. If you know that you have ongoing health issues, that may be a reason why you stay at this company.

Dana DuPerron: Yeah, or at least your eyes are open to it before.

Jill Lewis: Exactly.

Dana DuPerron: It doesn’t come as a shock, yeah.

Jill Lewis: And the other reason we sort of talk about like where you’re coming from is are you being recruited, right. That’s a huge issue, if you’re being recruited. So you’re happy at your job, you’re working there like 15 years and then maybe like a competitor is trying to recruit you, that gives you some more power in the negotiations for the contracts.

You’re going to want to have your current contract looked at because if you are being recruited to a competitor you want to know are you at risk, right. If your current employer says you can’t jump ship or you can’t take clients or you can’t talk to clients or work with clients, you know, you have to know what kind of risk you’re taking because sometimes you can work that into a contract.

Dana DuPerron: Yeah.

Jill Lewis: Like I’ve done that before, right, where the employer, the new employer who’s recruiting Joe Blow is willing to take on some of that risk, right. You know, if you get sued for stealing a client, you know, they’ll cover your legal or something like that.

Dana DuPerron: Yeah.

Jill Lewis: Yeah, so that’s one big piece. And then if you’re not as lucky to be recruited and you’re just starting off, you know, maybe you’ve been looking for a while, it’s good to know if you’re being hired as a full-time employee, right.

Dana DuPerron: Yeah, are you an employee, are you a contractor, are you a dependent contractor. Most things aren’t going to actually come right out and say that you’re a dependent contractor in the relationship, it’s probably going to be you are an employee versus you are a contractor.

Jill Lewis: Yes.

Dana DuPerron: If you’re a contractor, do you want to be – like first what does that mean and do you want to be a contractor because there can be some tax benefits.

Jill Lewis: Yeah.

Dana DuPerron: You know, on the flip side you don’t get certain benefits that employees get.

Jill Lewis: Right.

Dana DuPerron: You might be able to control your workflow and your workload a little bit more than if you were an employee. So there are things to talk about on that end versus an employee where like the company, your employer or whatever dictates how you do your work and when you do your work, and you give other work to someone else to do or – right. Like so that’s all covered.

Jill Lewis: Yeah, can you work with anyone else, can you – yeah.

Dana DuPerron: Yeah. I just wanted to walk it back to even when you were talking about can you jump ship from a current employer. I think what you meant by that, right, is there a non-competition clause.

Jill Lewis: Yeah, thank you.

Dana DuPerron: And as people may have heard recently, there is legislation to make non-competition clauses unlawful in most situations. That only goes back to October of 2021. So if it was something from before that, you’re going to want someone to take a look at that clause and give you an assessment on whether or not that’s enforceable because the pain is even if you don’t do anything wrong, the old employer can choose to sue you and make things difficult. And there’s nothing you can really do to protect against that but it’s good to have a conversation about it.

Jill Lewis: Yeah, exactly. And especially because I have had people get these like cease and desist letters –

Dana DuPerron: Totally, yeah.

Jill Lewis: – and just completely freak out. It’s just a letter, it’s just some like words on a paper. You know, like what is the employer actually going to do. Like, you know, what are the odds that they’re going to go through and get their own lawyer and sue you and that kind of thing, but –

Dana DuPerron: They may do something; it depends on the circumstances.

Jill Lewis: They may. They may if you’re taking some big clients, yeah.

Dana DuPerron: Yeah. You’re harming their business, yeah.

Jill Lewis: Exactly. So you want to talk to a lawyer about that if you’re thinking that you may be in a position like that. And if you’re not and you’ve been presented with an employment contract, that’s the other big piece that usually needs to get looked at by a lawyer.

Dana DuPerron: Yeah, regardless of who you are. Not who you are –

Jill Lewis: Absolutely.

Dana DuPerron: – but regardless of which position you’re coming from, if you’re getting a new written contract and it’s not just a contract that says, “Welcome to the job, you’re working here” –

Jill Lewis: Yeah. Yeah, [unintelligible 00:05:59] today.

Dana DuPerron: – and literally that’s it because honestly, I’ve had people be like, “No, no there’s nothing,” and then you look and you’re like, “No, no there is something here.”

Jill Lewis: There’s quite a bit here [laughs].

Dana DuPerron: Yeah. Yeah, there’s more than anybody realized because jumping back up to something we talked about in the first episode but if you haven’t listened to that, just because something says you get your Employment Standards Act entitlements, that is not everything.

Jill Lewis: Exactly.

Dana DuPerron: There can be more than that.

Jill Lewis: Yes.

Dana DuPerron: So don’t just assume that because it says that, that you’re getting everything you’re entitled to in law. So literally I mean if it is just, “Welcome to this job” period, then that’s just English. There’s nothing legalese in there, right, like you’re totally fine.

Jill Lewis: Yeah.

Dana DuPerron: But if there is like anything that seems kind of contracty –

Jill Lewis: Yeah, contracts …

Dana DuPerron: Yeah.

Jill Lewis: Yeah, absolutely. And that’s even if you’re in an employment relationship and you get a new contract –

Dana DuPerron: Yes, yeah.

Jill Lewis: – that’s just like life in general. If somebody is asking you to sign a contract, you should have like a second set of eyes on it no matter what. So yeah, the employment contract is such a big piece well because people will negotiate things like their salary, maybe they’ll ask for like an extra week of vacation, but they don’t realize that they can negotiate so many – well they can negotiate the whole contract. Like in theory, right –

Dana DuPerron: Yeah.

Jill Lewis: – it is a negotiation, but oftentimes they can negotiate the termination clause.

Dana DuPerron: And just actually when you’re talking about people getting a contract while they’re already employed, the number of times that I have seen people sign something that drastically reduces their entitlements upon a termination and you get, you know, a bonus or whatever and don’t realize the actual significance of it –

Jill Lewis: $200 signing bonus, “Sure I’ll sign that, yeah.”

Dana DuPerron: Yeah, and you don’t realize that it has any significance. So if you’re being asked to sign something, the best practice is to have someone take a look at it.

Jill Lewis: Absolutely.

Dana DuPerron: A few hundred bucks, not to scoff at that, it’s not – it’s a lot.

Jill Lewis: Yeah, I know it can be a lot for some people.

Dana DuPerron: Yeah. I’m not at all suggesting that that’s not – could be like a big financial impact, but it could lessen the financial impact so much more down the road.

Jill Lewis: My God, yeah. And I’ve heard of especially right around, you know, the pandemic a lot of employers starting like tightening up contracts or getting contracts. They didn’t have contracts, they started inserting layoff provisions, right.

Dana DuPerron: Yes.

Jill Lewis: And maybe we’ll get into this in a later episode but when this all started and everybody was being laid off, we all took a step back. Employer lawyers were like wait a second, like you can’t just lay people off, that’s actually – you’re not just allowed to do that just because it says it in the ESA, which is incredibly confusing for everyone.

Dana DuPerron: Yeah, totally.

Jill Lewis: So suddenly we start seeing these contracts popping up, and they’re fairly well written so you know a lawyer has been involved on the employer side and they’ve got layoff provisions and oftentimes termination clauses –

Dana DuPerron: They tighten up that termination clause, yeah.

Jill Lewis: They tighten it up and HR is just presenting this saying, “Oh, we didn’t have anything on file. We’re just getting everything down in writing.” OK, you trust your employer, yeah, and then if something happens, a couple of years later maybe you’re terminating, you come see us and boom you’ve got maybe a term now that drastically reduced it, reduced your termination.

Dana DuPerron: The flip side of that is too, like I get why employers want those protections too, it totally makes sense.

Jill Lewis: Yeah, yeah.

Dana DuPerron: The question is just does everybody realize what’s going on.

Jill Lewis: Yes, when you’re signing it. And can you negotiate that, right. You can always go back and ask. So before you start that relationship, if you’ve got a contract you got to go – you have to have it reviewed, right, because we can give you that advice on like how do you sort of spin this to your employer. Like people don’t love to try and negotiate at the beginning because they feel like, “Oh, like am I already being sort of like –

Dana DuPerron: Thinking about the end –

Jill Lewis: – a trouble,” yeah.

Dana DuPerron: – thinking about the bad –

Jill Lewis: Yeah.

Dana DuPerron: And like are they already being a trouble causer.

Jill Lewis: “Oh God, like what are they going to think of me.” But I’ve heard opposite things. Like I’ve heard that, you know, if you come to your employer and you’re, “I’m really excited about working here. I’ve taken a really good look at the contract. I’ve done my due diligence. I’ve had it reviewed and I have some thoughts and I’m wondering – you know, I know my value. I know that at my age, at my senior level I’m entitled to a little more than one week per year. Do you think we can just like put that in the terms?” And I’ve never had an employer pull the job offer.

Dana DuPerron: No, yeah.

Jill Lewis: I don’t know if you’ve ever had that.

Dana DuPerron: No, I don’t think I’ve seen that happen either. I mean it’s a slim possibility but even then, aren’t you better knowing.

Jill Lewis: Well that’s it. That’s what I’ve said to clients, “Do you want to then work with that employer if you raised like one very modest piece of a contract and they pull it.”

Dana DuPerron: Yeah, but even have a discussion about it, right. They don’t necessarily have to accept what you’re saying.

Jill Lewis: And sometimes so I’ve seen a range of answers back from employers from, “Sorry, this is our basic contract, we’re don’t change – we’re not going to modify anything,” which is fine, you’re in the exact same position. At least you asked and –

Dana DuPerron: And you know, you know going into it, “OK, this is what I’m giving up potentially and I’m prepared to take that risk.”

Jill Lewis: Exactly. And then I have seen employers come back and negotiate it, “Yeah, sure, we’ll add three weeks per year maybe with a minimum” –

Dana DuPerron: Yeah, a minimum or a maximum or maintaining duties to mitigate. Like there’s all kinds of again moving pieces in those clauses that can be tailored –

Jill Lewis: Absolutely.

Dana DuPerron: – in individual situations.

Jill Lewis: And wouldn’t be nice that at the end of the relationship, if there happens to be a termination, that everybody is on the same page, and you feel like you have a fair package at the end. You know what it’s going to be, the employer knows what it’s going to be, and you don’t have to fight at the end. So yeah, we usually recommend try negotiating that stuff upfront when everybody’s in a good mood about the new relationship.

Dana DuPerron: Yeah. Yeah, exactly.

Jill Lewis: And maybe you’re in that position, like if they’re trying to recruit you, you may be in a position where you can start asking for a lot more things.

Dana DuPerron: Right, yeah.

Jill Lewis: Yeah, so starting the relationship those would be some of our bigger pieces.

Dana DuPerron: Yeah.

Jill Lewis: Are there any policies –

Dana DuPerron: When I’m looking at the contracts overall, you know, best practice is to give the actual employment policies when someone starts. I don’t often see that. You’re going to be subject to those policies anyway and policies are subject to change from time to time.

Jill Lewis: All the time.

Dana DuPerron: So it’s good to have them from the beginning especially if you’re someone who’s going to be having a lot of expenses and there’s an expense coverage policy. Like you want to make sure that you know those things with money and everything, how that’s going to work. But what I’m usually looking for upfront in the contract is the termination provision, so what do you get when it ends.

Any obligations that exist after your employment ends, so non-compete, non-solicit and any sort of restrictions that that can impose on the person. Their compensation, so just overall do they have – is it just base salary, do they have a bonus entitlement, do they have stock options –

Jill Lewis: How does that work.

Dana DuPerron: – and if they’ve been promised any of those things, are they in the contract.

Jill Lewis: Yes.

Dana DuPerron: Because that’s something where like a lot of contracts have something at the end called an entire agreement clause that just says, “Nothing else other than what’s been promised is what’s in here.” But sometimes people will be like, “Oh yeah, we’ll give you that extra thing” –

Jill Lewis: Yes, yes.

Dana DuPerron: – and it’s not incorporated into the contract, down the road we’re arguing over it.

Jill Lewis: We hear that a lot, we hear that a lot. Like I was speaking with a recruiter. So a lot of times when you’re being recruited it is a third party.

Dana DuPerron: Yeah, yeah.

Jill Lewis: It’s not HR, it’s not somebody that works like at the company, right, it’s a third-party recruiter and maybe they start promising you things, maybe they say, “Oh yeah, this is work from home. Yeah, yeah, it’s going to be work from home” –

Dana DuPerron: Yeah, totally.

Jill Lewis: – or like, “Yeah. No, you can definitely like move up to five weeks” or whatever.

Dana DuPerron: Yeah, it should be in the contract.

Jill Lewis: If you’re relying on that representation, it has to be in the contract.

Dana DuPerron: And then if you do have a complicated compensation structure, ideally seeing the bonus policies, seeing the stock – those kinds of things are good to see because then you know again how they treat those things upon termination. That doesn’t apply to everyone, so it really depends. Those are usually – we go over everything, how much vacation you’re getting, you know, confidentiality, IP obligations whatever. When I say IP, intellectual property so whatever, the work product that you make in your job and who that belongs to. It’s usually the employer.

Jill Lewis: Yeah.

Dana DuPerron: But those are the big three that I’m looking for is usually, termination, anything post-employment and compensation.

Jill Lewis: We have another big three.

Dana DuPerron: Another big three, that’s going to be problem –

Jill Lewis: So we have the big three within the big three – in one of the big three [laughs].

Dana DuPerron: That’s the sub-big three.

Jill Lewis: Yeah. We’re doing a great job of keeping this really –

Dana DuPerron: Simple.

Jill Lewis: All right. But I think that is –

Dana DuPerron: I think that covers it.

Jill Lewis: I think that covers it for the beginning of the relationship.

Dana DuPerron: And then soon we’re going to be doing deep dives into those actual contract terms so …

Jill Lewis: So much fun, I can’t wait.

Dana DuPerron: Bye.

Jill Lewis: Bye, [unintelligible 00:14:27] Wikipedia.

Dana DuPerron: Yeah [laughs]

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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