By Howard Levitt
Is it worth giving up your current job security?
1. Is there a contract for you to sign? If so, what rights and impediments does it provide?
Will it permit the company to fire you at its whim during probation or, even after probation, on minimal severance so that probation is effectively career-long? If so, is it worth giving up your current job security? And if the new employer states, in response to your objection, that that is simply its standard form and you should not worry, will it agree to stand behind that by taking it out? And if they won’t remove it, is the employer being too disingenuous to risk your career on?
But it’s not just termination clauses. Are there other provisions that are toxic compared to your legal rights in the absence of a contract?
Does the contract provide the employer with the right to lay you off at any time without severance? Without such a provision no employer can do that. And we have learned from COVID what a lethal financial weapon the right to lay off can be.
What about non-competition clauses for those employees in provinces and/or positions where they are enforceable? Are you comfortable taking your clients with you to a company if you will have to leave them behind if you are subsequently fired or leave for a new opportunity? In many positions, your clients are your career and source of wealth.
The same question arises for non-solicitation covenants.
You may have negotiated a job that you are ecstatic about. But does the contract allow the employer to change your terms of employment and denude you of what you had negotiated without it being a constructive dismissal?
Whatever the terms of the contract, in almost every case it will be worse for you than the absence of one. That is both because the courts are so generous to employees and because employers prepare employment contracts for only one reason — to denude their employees of the benefits a court would otherwise provide.
2. Unless you are content with remaining with that job until you retire, what are the prospects for future promotions?
Does the company have a history of internal promotion? Are there many positions to be transferred or promoted to that are of interest? Are there people in those positions that seem likely to move on in the relatively short term?
3. Apart from internal transfers, what career opportunities will result from that job?
Is it a company whose employees are in high demand? Is it providing you with skills that will make you more marketable? Or is it simply rehashing the same job you are already performing, more likely to make you stale than marketable?
4. Are you presently pursuing a wrongful or constructive dismissal case?
In that event, are you required to accept a job offer as part of your mitigation obligation, failing which the court will treat you as if you had and reduce the severance you can claim from your employer?
Generally, you have to accept a position that is at the same level and within 15 per cent of the income from your former job or be deemed to have failed to “mitigate” in your lawsuit.
5. Remuneration is not just salary. What opportunities for bonuses, stock options, LTIPS, commissions or other forms of remuneration exist and how likely is it that they will be received?
Is the bonus totally discretionary or is it based on company and personal performance? If the latter, how achievable are these objectives and what right does the employer have to change those objectives and on what notice? If discretionary, what is the company’s history of awarding these bonuses? If based on company performance, how has the company been performing, what would you have earned based on its most recent results and is it in a segment or industry which makes it likely those results will continue?
If working for a startup, what is the likelihood the stock or stock options you are being offered will have real value? If there is, what are the criteria for the awarding of those options and, if the company suddenly terminates you, what rights do you have respecting them?
What is the criteria for potentially forfeiting your incentives and bonuses, for example, if you are terminated and will those restrictions in the bonus plan be legally upheld (not that you want to have to fight that)?
In an hourly paid job, what is the genuine prospect for overtime pay and does the company have a history of paying that as a matter of course? And for those more interested in a balanced work life, are you likely to be forced to work long hours with little control?
For those of you looking as well as those who might be, hold onto this checklist! It is the product of seeing it all in 44 years of employment law practice and tens of thousands of cases.