Employment Contract | HTW Law - Employment Lawyer
Carefully crafted Employment Contract, Employment Agreement, Independent Contractor Agreement by experienced employment lawyers to ensure legal enforceability. Seek employment law legal advice before accepting any job offer or any "severance package" or "termination package" to protect employment law entitlements.
Why Do I Need an Employment Lawyer to Help Me Draft An Employment Contract?
In employment law context, any contractual term that attempts to limit an employee’s entitlement to the Employment Standards Act (ESA) minimum standard is under strict scrutiny. Employment agreement drafting is substance over form and a lot of legal issues are involved, and drafting enforceable employment agreement contractual terms in an employment contract is becoming more of an art than a science. It takes an experienced employment lawyer to draft a legally enforceable employment contract.
An employment agreement is a contract that requires offer, mutual agreement, consideration and acceptance. In employment law context, if an employer has acted in a way that forms an expectation, even if it’s more than the ESA minimum standards requires, the employer is estopped from not honouring such expectation. In employment law, an employer cannot change the contractual terms of the employment contract unilaterally without valuable consideration in exchange. Do note that a promise for continue employment, in employment law context, DOES NOT count as a valuable consideration in exchange.
In employment law context, a restrictive covenant in an employment contract such as non-competition clause or non-solicitation clause that stipulates that a worker is not allowed to compete against employer is only enforceable if it is limited in scope and duration. If the scope is overboard or the duration is too long, it will not be enforceable in employment law context.
The current employment law legal position on the issue of just cause is that except in truly egregious cases, a Court will rarely find just cause. And if you have a just cause termination clause in your employment agreement, if it allows an employee to be terminated absent wilful misconduct, the ENTIRE terminate clause (both with and without cause sections) will be stroke out by the Court in an employment law case! See e.g. Waksdale vs. Swegon North America Inc., a 2020 Ontario Court of Appeal Case.
Even if a termination clause for termination without cause exists in an employment contract, unless the termination clause specifically stated that the common law reasonable notice is to be excluded, otherwise it does not preclude the application of the common law “reasonable notice” in the employment law context.
Even if your employment agreement survived all the employment law booby traps thus far doesn't mean that it arrived home safe and sound just yet. In employment law, an employment agreement termination clause that specify the notice required for a without cause situation may not be enforceable if the employment contract specifically stipulated that severance, and other employee benefits are to be included in the “in lieu of notice” payment, as the employment agreement has the potential of render a termination below the “minimum guarantee” of ESA.
In employment law context, the termination clause is not enforceable if it is ambiguous and unclear as to whether the minimum ESA standard has been met. If the employee hasn’t been informed of what the ESA minimum was before signing the employment contract, a Court will likely NOT enforce the employment agreement termination clause in an employment law case. And the list goes on and on forever ….
If you are an employer, you are very strongly advised to retain an experienced employment lawyer to draft a legally enforceable employment contract. In many cases, it’s a make-it-or-break-it move. If you are an employee, you are well advised to seek legal advice from employment lawyers before signing any employment agreement or accepting "severance package" or "termination package" to protect your employment law entitlements.
In employment law, an independent contractor employment agreement is important in its own right. In employment law, time and time again, the Court keep emphasizing and hammer home the message that misclassification is prohibited under both the Common law and the Employment Standards Act (ESA).
In employment law context, misclassification occurs when a worker is assigned to a different category than the one he or she should be in. Some employers try to circumvent the ESA by assigning workers who look like, smell like, sound like employees to fill independent contractor positions. In many employment law cases, the independent contractors in question are deemed to have been misclassified, and as such are eligible to all employment law entitlements that are reserved for employees.
How to Draft a Legally Enforceable Independent Contract Agreement?
As established in many employment law cases, an independent contractor agreement is substance over form and a lot of employment law legal issues are involved, and as such a well-drafted independent contractor agreement save everyone's headache down the road.
Having a carefully crafted independent contractor agreement by an experienced employment lawyer setting out the intentions of the parties is crucial, to make sure you don’t end up creating an employer-employee relationship inadvertently, if you are the payor hiring the independent contractor. In contrast, if you are a worker, you want to consult an employment lawyer to make sure you fully appreciate your rights and responsibilities, and legal ramifications before signing an independent contractor employment agreement.
To address all relevant employment law issues, the following issues should be addressed in the independent contractor employment agreement:
Ownership of tools & the cost of using the tools;
Chance of profit / risk of loss;
Economic dependency & Integration.
The more control the business has over its independent contractor, the more likely it is for a Court in the employment law context to find that an employment relationship is established. In employment law context, when workers purchase or rent equipment or large tools that require major investments and costly maintenance, it usually indicates that they are self-employed individuals. The more the independent contractor is shield off from risk of loss, and the more financial dependent an independent contractor is on the payor, the higher the likelihood he/she will be deemed to be an employee in employment law context.