Veteran investment banker Kenneth Mathieson was well rewarded in his good years. In 2005, he earned a bonus of $1.1 million. However, when his employer, Scotia Capital, decided that he deserved only $360,000 in 2006 — the lowest bonus he had ever received — Mathieson believed the bank was attempting to force his resignation. He wasn’t about to go quietly.

To read the full article, visit Daniel Lublin’s columnist page at Metro News.

Daniel Lublin is an employment lawyer focusing on the law of dismissal.  He can be reached at dan@toronto-employmentlawyer.com

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In a recent article published in the Globe & Mail, Tavia Grant reviews the unemployment numbers that have recently plagued Canadians, with a focus on recent increases in jobs.

According to Ms. Grant’s article, 43,000 new Canadian jobs were created in January alone. This increase resulted in Canada’s jobless rate falling from 8.5% to 8.3%. At first blush, this figure appears encouraging for unemployed Canadians who have had to face a depleted employment market in the past year. However, Canadians should be careful in assuming that the strong numbers in recent months, especially in January 2010, reflect a speedy recovery. As the economy readjusts after having faced one of the biggest hits in Canadian history, we are not out of the woods just yet.

In fact, Ms. Grant emphasizes in her article that the current employment rate remains significantly below its level in late 2008. Further, she points to the fact that lately, the monthly employment numbers have been “volatile”. This volatility in the numbers could very well continue as the Canadian economy emerges from the recession.

According to Ms. Grant’s article, some examples of the factors contributing to the unpredictability of job numbers in Canada include: employers requiring their employees to work longer hours instead of hiring, and the likely wind down of positions in the health care sector now that the H1N1 vaccination program, which resulted in a surge of temp jobs in December, is coming to an end.

Another factor which may have an impact on the unemployment rate in Canada is the Federal Government’s proposed increase of Employment Insurance premiums starting in 2011. In order to address the deficit, Ottawa is expected to present a plan which includes, among other things, increases in EI premiums for both Canadian employers and employees. This could very well become a disincentive for employers, especially in small businesses, from hiring new staff and consequently further depress job growth in Canada.

Although recent trends point to a recovery, Canadians should not assume that the employment market will recover at a pace consistent with recent decreases in unemployment. We are currently undergoing an economic transitional phase and many factors may very well impact Canadian jobs, for the best or for the worst.

Cedric P. Lamarche is a lawyer with Whitten & Lublin LLP, an employment law office assisting both employers and employees on various workplace legal matters.

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When they work hard, they get a bonus. When their service is long and meritorious, they may get a good severance package or pension. When they knowingly break their employer’s rules, however, they often are fired for cause and get nothing at all.

Canadian courts have little tolerance for employees whose computer habits expose their companies to liabilities. This is because in every province there is legislation that is interpreted as requiring employers to provide a harassment-free workplace. As well, given the potential risks to employers, it is clear that they can monitor an employee’s use of computers, BlackBerrys or any other equipment that uses its servers – and they often can do so without notice.

There is a tale of two employees who misused their computers at work and the consequences they reluctantly faced.  To read the full article, visit Daniel Lublin’s weekly column page at Metro News.

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Independent contractor agreements: It usually will not matter that workers have signed agreements confirming they are not employees. Employers, happy to unburden themselves from various costs and liabilities associated with employees, increasingly retain “contractors” to perform the same services their employees did before. Often, those same employees are seamlessly turned into contractors. And the former employees, content to pay their own taxes, are not about to complain. When this characterization is challenged, sometimes many years later, courts are apt to find the workers were truly employees. No surprise there. The contract represented little else than a “label.” Seldom will this be sufficient.

Post-employment restrictions: Many contracts contain broad restrictions preventing workers from competing with their former employers or soliciting their old clients following their departure. In certain cases, such as where an employer is vulnerable to an ex-employee, such agreements can stick. But in many others, they will easily be struck down. This is because employers often take a kitchen sink approach to drafting employment contracts. They bargain for excessive protection, no matter how junior or administrative the employee. Clients will not usually follow a junior employee, so a clause restricting that employee from competing with his former employer is not likely reasonable. According to a recent case, restrictive covenants are only enforceable “if reasonable between the parties and with reference to the public interest.” In general, the more one-sided a non-solicitation or non-competition agreement, the less likely a court will respect it.

Policy manuals: In one recent case, the employer argued that since the employee had not reported harassment as she was required to under the company’s policy manual, the company could not take any steps to address it. As a result, it argued, it was the employee who had breached the employment relationship, not the harasser. The court easily dismissed this notion. Although terms in a policy manual can sometimes operate as conditions of an employee’s job, those terms must be reasonable or they will not be upheld.

Termination clauses: Similarly, contractual language surrounding termination is often challenged. This is because even without a contract, there is an implied right to reasonable treatment upon termination. Why would anyone agree to anything less? Seldom do employees negotiate contracts on the same footing as their employer. Therefore, courts have developed a number of tests. If the contract is ambiguous, fails to respect statutory standards or is executed under duress, it will be set aside.

Daniel Lublin is an Employment Lawyer with the law firm Whitten & Lublin LLP.  He can be reached at dan@toronto-employmentlawyer.com

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Today, much of the workforce views a manager’s criticism as “bullying” or “harassment.” As toxic bosses have become a greater liability, their employees no longer call their doctors seeking a note for a leave of absence. Now they call their lawyers. But as harassment is often in the eye of the beholder, when will a tough boss justify a successful lawsuit? 

The entire workplace law column, originally published in the Metro News, can be read here.

Daniel A. Lublin is an employment lawyer with the law firm Whitten & Lublin LLP. Reach him at dan@toronto-employmentlawyer.com

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For many businesses, customers and clients are hot commodities. In an age where “googling” a few key words can generate an infinite list of hits, businesses attract and retain clients not only as a result of the good deals they offer, but also as a result of the relationships that exist between their clients and the business’ employees. Since employees frequently move from one employer to the other, it’s no surprise that many employers often try to protect their customer and client pools by including restrictive clauses in their employment contracts. Examples of restrictive clauses that have been included in employment contracts and that have been upheld by the courts include non-competition and non-solicitation provisions.

As one can imagine, when employees leave their employment to pursue other opportunities, legal issues often arise as a result of restrictive provisions. On the one hand, businesses want to protect their client base and their proprietary information and, on the other hand, employees want to continue working in the same industry and continue servicing those clients with whom they have cultivated relationships over time. The courts will generally deal with these types of disputes cautiously as a result of the various policy concerns, including the fact that restrictive clauses often limit an individual’s ability to work in their craft or in their field of expertise.

In a recent case before the Alberta Court of Queen’s Bench, the court considered how far an employer should be permitted to go in imposing restrictive clauses to an employee who was already working for the employer. In doing so, it confirmed many of the rules that employers should follow in order to ensure the existence of fair contractual terms between parties that are often on unequal footing.

Accordingly, employers who wish to protect themselves should consider playing by the following rules:

• Employment agreements should ideally be concluded before an employee starts work.

• If an employer wishes to create a written employment contract or modify an existing contract midway through an employer/employee relationship, it should:

o provide something of value to the employee in exchange for signing the contract;

o advise the employee to consult legal counsel, and confirm this in writing;

o explain the restrictive clauses to the employee;

o inform how, if at all, the employment role will change if the employee refuses to sign the contract

o Ensure that the restrictive clauses are relevant to the employee’s position (i.e. not overly broad and too onerous with respect to the position).

Cedric Lamarche is a lawyer with Whitten & Lublin LLP, an employment law office assisting employers and employees on various workplace legal matters. .

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The recent and very public locker room gun-pulling incident between NBA players Gilbert Arenas and Javaris Crittenton has highlighted the importance for employers to create and enforce policy on workplace safety.

As many sports fans know, Arenas and Crittenton have now been suspended by the league for the remainder of the 2009-2010 season for brandishing guns in the Washington Wizard’s locker room. Some may interpret the NBA’s actions as “making an example” of the payers. Others, such as myself, see it as the league legitimizing and enforcing it’s policy outlined in the collective bargaining agreement; An agreement produced by the collective efforts of the NBA owners and the Players’ Union.

As previously mentioned by Daniel Lublin, if an employer wants to lean to it’s policies in support of a lawsuit, it is important for them to circulate and enforce clearly worded company policy.

With the introduction of Bill 168 in Canada, the issue of workplace safety regarding violence has been a hot topic as of late. The incident between Arenas and Crittenton and the manner in which the NBA dealt with it is a good example for all employers to take notice of.

Brian Norris is the Office Manger of Whitten & Lublin LLP, an employment law office providing counsel to both employers and employees.

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Employees and employers are most confused about the rights and obligations of departing employees. Key employees believe they can pack up and leave without notice and employers will assign the label of a “fiduciary” to junior employees, a title usually reserved for directors.

A recent Ontario case should be setting off alarms.

To read the full article, published in the Metro, read here: //www.metronews.ca/toronto/columnist/8144

Daniel A. Lublin is an employment lawyer with the law firm Whitten & Lublin LLP. Reach him at dan@toronto-employmentlawyer.com

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Talk show host, Conan O’Brien, has reached a $45 million (U.S.) deal with NBC.

After only 7 months on the Tonight show, as a result of poor ratings 46- year old O’Brien will be off the air. With fellow talk show host, Jay Leno, returning to his former late night slot, O’Brien will personally receive $33 million with the balance to be paid out as severance to his staff and crew.

O’Brien didn’t take the news lightly.  Rather, he publicly declared his disappointment that NBC had given him less than a year to establish himself as host.

He even went so far as to state that “[y]ou can do anything you want in life. Unless Jay Leno wants to do it, too!”.

As O’Brien’s employer, NBC may have provided an excessive severance package.  Deals of this magnitude are extremely rare.

In Canada, severance is usually determined by the “Bardal” test, which asks how long it ought to reasonably take an employee to secure another, comparable position.  Relevant factors include the employee’s age, tenure, position and the availability of another similar paying job when considering personal circumstances.

There can be other complicating factors, such as an employment contract that includes either a golden parachute or alternative a punitive termination clause.  As well, and likely what occurred in the O’Brien case, negative public scrutiny can often influence how fast – or how much, an employer pays to get rid of an employee.

Alyssa Minsky is an employment lawyer with Whitten & Lublin LLP, an employment law firm providing workplace legal representation for employers and employees.

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