Latest / All Figured Out with Andrea Barr: Figuring Out Work, Life and Parenting / 108. Figuring out your legal rights at work (before you need them) with Erin Brandt

Transcript

108. Figuring out your legal rights at work (before you need them) with Erin Brandt · All Figured Out with Andrea Barr: Figuring Out Work, Life and Parenting

• 0:00
  Welcome back to All FIGURED OUT. My name is Andrea Barr.
• 0:02
  Thank you so much for joining me again this week.
• 0:05
  This is a really good one. This is one that you probably
• 0:09
  wish you heard 5 or 10 years ago.
• 0:13
  This is one that you might have to listen to again in the
• 0:16
  future. I just think this is an episode
• 0:19
  that anybody who does any kind of paid work absolutely needs to
• 0:24
  listen to. This week on All Figured Out, I
• 0:26
  sat down with employment lawyer Aaron Brandt and she broke down
• 0:30
  everything to do with your self as an employee and your legal
• 0:36
  rights and things. I mean, as you can tell, I'm no
• 0:39
  lawyer, so I brought Aaron Brandon to talk about all of the
• 0:43
  legal stuff for us. Like I said, she's an employment
• 0:46
  lawyer. She's been doing employment law
• 0:48
  her entire legal career and she actually works on the employer
• 0:52
  side and the employee side. So she has a really interesting
• 0:55
  perspective that she can bring to the table to help us
• 0:57
  understand why employers do the things that they do or what
• 1:01
  employees are entitled to. I mean, we get so deep into the
• 1:06
  weeds, but in a way that I know you're going to enjoy because of
• 1:09
  course I'm asking the questions that you're probably thinking.
• 1:11
  I stopped her a few times to say, whoa, I don't know what
• 1:14
  that means. Help us out here.
• 1:16
  So some questions we talked about.
• 1:18
  What should you be watching out for before you signed a
• 1:20
  contract? Can you push back on an offer
• 1:25
  that you get without losing the offer?
• 1:27
  What's the deal with non competes?
• 1:29
  Why are there so many non competes out there?
• 1:31
  And what happens in general if you get fired?
• 1:34
  So whether you're accepting a new role, you're thinking about
• 1:37
  quitting, or you're navigating A tricky work situation, this is
• 1:40
  the legal information that again, I know you wish you had
• 1:43
  sooner. So let's get into it.
• 1:47
  You're listening to the All Figured Out podcast.
• 1:50
  I'm your host, Andrea Barr. I'm a career coach for parents,
• 1:55
  mom of two, and a self-proclaimed expert at
• 1:58
  winning it. I've learned one thing, No
• 2:01
  parent has it all figured out and that's OK.
• 2:04
  So grab a coffee or hide in your car for some me time.
• 2:07
  We're about to figure out this work life and parenting stuff
• 2:10
  out together. Aaron Brandt, thank you so much
• 2:15
  for coming on the All Figured Out podcast.
• 2:17
  Thank you for having me. OK, sometimes it comes off and I
• 2:21
  always call it out. My my intro comes off very like
• 2:24
  very formal. Maybe because I'm speaking with
• 2:25
  a lawyer. I'm like this, this gal is a
• 2:27
  professional. I wanna be button.
• 2:30
  I'm wearing a button down and wearing collar today for you.
• 2:33
  I dressed summer casual. Today.
• 2:36
  So. I love it.
• 2:37
  Well, thank you so much for coming on.
• 2:39
  It is so fun to have a a lawyer in the virtual studio to just
• 2:45
  chat to us about all the things that we need to know as working
• 2:48
  humans from a legal perspective. I think that what's interesting
• 2:52
  about our conversation today will be just thinking about
• 2:55
  like, when you become a parent, the stakes just feel bigger all
• 3:00
  around. Like getting a, you know, a
• 3:02
  severance package or getting packaged out and like the
• 3:04
  difference between like, you know, 5K, like there's
• 3:07
  everything feels really important.
• 3:09
  Well, I mean, financial security takes on a different meeting,
• 3:12
  right? That like you may be a parent
• 3:14
  that has your kids in expensive childcare, daycare and nanny and
• 3:18
  you do that so that you can work.
• 3:19
  And then, you know, when there's a change or a conflict at work
• 3:23
  that impacts your job security, you know, part of it isn't just,
• 3:27
  OK, well, how can I change my lifestyle or my expenses?
• 3:29
  It's but I've got all these commitments and you know, that
• 3:32
  tension between like if my income suffers, like do I keep
• 3:36
  the kitten childcare where I look while I look for work and
• 3:38
  which are can be big expenses? Do I pull the child out because
• 3:41
  I'm not working anymore and change my focus?
• 3:43
  But then how do I job interview with a kid that's not in
• 3:46
  daycare? So, and there's a lot when it's
• 3:48
  not just you and your life, when you're looking after another
• 3:52
  thing and there's a lot more pressure riding on the success
• 3:55
  of your job and career. So true.
• 3:59
  And for you, tell us a bit about your career journey, becoming a
• 4:03
  parent, your mom of 22. 22 boys, 1/3 and five.
• 4:08
  Yeah, our and our kids are quite similar in age.
• 4:10
  So tell me like how did how was your experience?
• 4:13
  I've I work with, actually, I don't know if you can believe
• 4:16
  this or not, as a career coach I do work with a lot of lawyers.
• 4:20
  Yeah. A lot of mom lawyers, to be
• 4:23
  quite frank, but how has your experience been being a lawyer?
• 4:27
  Being a. Mother So I've I've always
• 4:29
  worked in employment law articles and employment law
• 4:31
  right out of law school. And so I had about five years
• 4:34
  under my belt before I decided to have kids.
• 4:36
  I actually made a career transition in March 2020 when my
• 4:41
  first son was about 5 months old and we were about two weeks into
• 4:45
  COVID. I returned from my mat leave
• 4:47
  very early with the idea that I would work very part time and
• 4:51
  gradually ease back into things and really create your own
• 4:53
  adventure on what a return from that leaf can look like.
• 4:56
  And in that first two or three months, I made a decision that I
• 5:01
  was gonna go out on my own with a business partner.
• 5:04
  And so we created our own law firm with my infant in tow.
• 5:08
  He came along to look at leases with us and came to important
• 5:11
  business meetings in the stroller.
• 5:13
  And there was a lot of that, you know, compounded with COVID.
• 5:19
  I hope you took, I don't know that we did take a lot of photos
• 5:21
  at that time with him, but you know, he came along to our first
• 5:25
  photo shoot at, you know, as from owners and my business
• 5:27
  partner sister, you know, watched him while he's kind of
• 5:30
  was COVID. So like everything was chaotic.
• 5:33
  And in the end, we settled into life in running portal law and,
• 5:37
  and I ended up having a second kid after I started this law
• 5:40
  firm. And so this balance of work and
• 5:45
  family and business ownership and family and employment law
• 5:50
  and navigating through parenthood with my clients as an
• 5:53
  employment lawyer, you know, for years I've worked with parents
• 5:56
  who struggle with workplace issues in and around their Matt
• 6:00
  leaves and parental leaves. And so, you know, going through
• 6:02
  it myself and then watching my friends and family go through
• 6:05
  Matt leaves and return to works and navigating all of that,
• 6:08
  That's all very top of mind for me in terms of what I see with
• 6:13
  my clients, what I see, what I've seen with my friends and
• 6:15
  family. And then, you know, going
• 6:16
  through it myself and thinking a lot about, you know, what
• 6:18
  worked, what didn't work, what was different between each of my
• 6:21
  mat leaves. And that all informs, you know,
• 6:24
  the work that I do now with employees and navigating their
• 6:27
  own leaves. I, we met only a couple of weeks
• 6:30
  ago and it was like, you have to come on my podcast ASAP and you
• 6:35
  rose to the occasion you booked within a day, I think.
• 6:38
  And I'm so happy because I just can't picture a better person to
• 6:42
  speak to this audience to speak on this topic.
• 6:45
  Like you have been there in all fronts.
• 6:47
  You've been the employment lawyer like you know the book
• 6:50
  stuff. You experientially know what
• 6:53
  it's like to take a Matly from another working for somebody
• 6:56
  else. Now working for years like
• 6:57
  you've done it all. Yeah, I've seen that.
• 7:00
  You're so open, like when we were chatting, I was like, I
• 7:02
  just feel like I can ask you questions and you can, of
• 7:05
  course, there's a caveat to this episode, of course, that she's
• 7:09
  not giving you legal advice through Airpods, but you're
• 7:12
  going to speak kind of like as friends, Like what would you
• 7:14
  tell a friend? And then as a lawyer, what would
• 7:17
  you be advising a client in these hypothetical clients in
• 7:20
  this situation? So.
• 7:21
  Yeah. And I think I've seen kind of
• 7:22
  different pieces of it. One piece is, you know, I took a
• 7:26
  mat leave and I got fired on my first day back, which is, you
• 7:29
  know, a big legal question. And I see that with my clients.
• 7:32
  But then with my friends and family, you know, there's
• 7:35
  smaller nuanced things like, you know, I came back to work and my
• 7:39
  office was given to someone more junior than I was, or there was
• 7:42
  poor communication through my mat leave.
• 7:43
  And that's not necessarily, like, express obvious
• 7:47
  discrimination in terms of, you know, legally actionable.
• 7:51
  But it can be felt very deeply by the person who's going
• 7:54
  through that. And that can impact their
• 7:56
  loyalty to the company or it can impact their career choices
• 7:59
  moving forward or the decisions that they might make after their
• 8:01
  last match leave. And so there's a lot of stuff
• 8:03
  that's, you know, both expressed, but also like less
• 8:07
  obvious, less less explicit in terms of how people experience
• 8:12
  their leaves. Sorry, I dug right into it.
• 8:13
  I just went right for, you know, parenting and work.
• 8:17
  This is how. We do it.
• 8:18
  I've got a question. This is like the friend
• 8:20
  question. I, I work with a lot of people
• 8:23
  who, OK, maybe like middle, middle of the road in terms of
• 8:27
  like really crave stability. So this isn't the person who is
• 8:31
  like really, really, really needs stability and creates
• 8:33
  stability, Not the person who's like super loosey goosey would
• 8:35
  do anything. But kind of so let's say this
• 8:36
  person's middle of the road and they're saying to you, well, you
• 8:41
  know what? I'm going to stick out like this
• 8:42
  corporate shit that I'm dealing with that I hate because I want
• 8:46
  to have another kid and I want to do another Matt leave here.
• 8:49
  You actually did a mat leave working for someone else and
• 8:53
  then went out and did your own thing.
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  What do you, what would you say to that person as a friend that
• 8:57
  they have to like wait out this like EI?
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  You know what I mean? I mean, I think all of these are
• 9:02
  valid. There's a menu of valid choices.
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  Like there's no one-size-fits-all solution to
• 9:08
  Matt leave and work and parenting.
• 9:12
  And I always sit down and talk. I mean, my job is a lawyer is is
• 9:15
  to sit down and talk about the pros and cons of each choice.
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  Like, what are the consequences of each potential choice that
• 9:21
  you could take and then which one works for you?
• 9:23
  And so I like, I approach that with leaves.
• 9:25
  And that's, you know, when I advise employers on how to
• 9:28
  structure not leave policies or parental leave policies or how
• 9:31
  to deal with an employee who's just announced that they're
• 9:33
  taking a leave. It's not a one side.
• 9:35
  Not everything's gonna work for everyone.
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  You know, some people want to be very connected to their
• 9:39
  workplace. They want to be invited to the
• 9:40
  holiday party when they're off on leave.
• 9:42
  They want to be told about promotion opportunities and they
• 9:44
  want to be given the chance to apply.
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  And other people are like, Hey, I'm on leave, don't bother me
• 9:48
  for 12 months or 18 months or whatever they choose to take.
• 9:51
  And so there isn't A1 size fits all approach for every employee.
• 9:55
  What I really encourage is every employee to think very carefully
• 10:01
  about what they want their work life to look like, what they
• 10:03
  want their parent life to work like to look like, to think
• 10:07
  about, you know, what do you, what's a, what's an ideal leave
• 10:10
  for you? And for like, my advice is that
• 10:13
  communication is key, that your employer may make certain
• 10:17
  assumptions or have certain expectations, and you may as an
• 10:20
  employee may have certain expectations or assumptions.
• 10:24
  And what's most critical to success is communication.
• 10:29
  And you know, that's, that's the ideal that ideally you're
• 10:31
  working for an employer where you go to your employer and you
• 10:34
  say, Hey, I'm expecting, and this is what I'd like to do.
• 10:36
  And the employer goes, yay, let's see how we can make that
• 10:39
  work. Here's what I need as your
• 10:41
  employer. And here's how I think that we
• 10:43
  can make that work. And if it's if both parties
• 10:45
  communicate clearly about what their needs are and what their
• 10:47
  expectations are, and hopefully there's a way to compromise and
• 10:51
  and make that work, That's my ideal world.
• 10:53
  Yeah, what what about when you don't know?
• 10:56
  Are you, you think you know, you go in, you become a parent and
• 11:00
  you're like, what was I thinking?
• 11:02
  I just promised my boss, you know, handshake, promise my boss
• 11:06
  that I'd come back after three months.
• 11:07
  I absolutely cannot, physically cannot come back after three
• 11:12
  months. And what, what happens when your
• 11:13
  needs change? What do you, I mean, legally
• 11:16
  talk from the legal perspective too?
• 11:18
  When you've like made that promise, you know you're a
• 11:20
  director or senior director, whatever, like executive.
• 11:23
  I like. How legally, what can you do and
• 11:26
  how do you communicate? That I mean employees are
• 11:29
  legally entitled to a certain amount of leave in Canada and it
• 11:33
  does vary slightly from province to province in terms of, you
• 11:37
  know, the breakdown between maternity or pregnancy leave and
• 11:41
  parental leave and like effect as a extra top up for dads.
• 11:44
  And that you can see that in some provinces.
• 11:46
  And so, you know, employees have a right to take a certain amount
• 11:49
  of time off unpaid and together with that is, you know,
• 11:54
  employment insurance, which if an employee is eligible, that's
• 11:57
  a separate different entitlement.
• 11:58
  And so one thing I will say about employment insurance is
• 12:01
  that the current scheme is incredibly confusing, this
• 12:03
  choice between 12 or 18 months. And if you're not sure what
• 12:05
  you're going to do, then take the 12 months because once you
• 12:08
  elect, you can't change. So if you choose 18 months and
• 12:11
  then go back to work early, then you forfeit a pile of money.
• 12:14
  And so it's better to actually, I always advise to take the 12,
• 12:17
  select the 12 months and then get all the money from the
• 12:20
  government. And then if you choose to take
• 12:21
  longer than 12 months, then you take the balance unpaid, but
• 12:24
  it's the same pot of money whether you choose 12 or 18.
• 12:27
  Yeah. So if we were to just to further
• 12:29
  explain, it took me so long to figure that if there's someone
• 12:32
  listening, understand, say we'll just it's not this, but say it's
• 12:35
  100,000 just to make it. It's like 300 and something a
• 12:38
  month if you choose 18 months or 5 or 600 a month if you choose
• 12:42
  12 months. But it's the same amount of
• 12:44
  money either divided over 12 months or divided over 18
• 12:48
  months. And so if you choose 18 months,
• 12:51
  you get the same amount of money at the end of the 18 months.
• 12:54
  And if you chosen 12 months because the monthly payments are
• 12:57
  higher over. 12 months. But if you choose 18 months and
• 13:00
  what you're saying is say life circumstances change and you're
• 13:02
  like, you know what, I took the 18 months.
• 13:03
  I've been getting paid the $300 a month.
• 13:05
  I actually want to go back at 12 months.
• 13:08
  You forget, then you 4. Yeah, yeah, very important.
• 13:11
  I love that. That's very good advice.
• 13:13
  With respect to an employer, like an employee does have a
• 13:16
  right to take and you know, in most provinces now I think it's
• 13:19
  18 months and so an employee can choose to take less for a
• 13:22
  variety of reasons. And so I think they, you know,
• 13:25
  where the employee wants to pivot, different employment
• 13:27
  standards legislation will have different rules around, you
• 13:30
  know, how much notice you need to give your employer or things
• 13:32
  like that. But it's, it's not so much like
• 13:34
  that question is not so much about the legal rights, but more
• 13:37
  so about, you know, communication and job
• 13:39
  preservation and like coming back to an environment that's
• 13:41
  happy to have you and not frustrated by the changing
• 13:45
  target, right. And So what I would encourage
• 13:48
  people who are planning a first for, you know, a second leave is
• 13:51
  easier to plan than a first because the second one, you know
• 13:53
  what went wrong and you know what you want to do differently.
• 13:56
  And maybe you're like me and your second kid was easier than
• 13:59
  your first and slept better. And so you're feeling better.
• 14:02
  But but your first leave, you have no idea what to expect.
• 14:05
  And one of the things that I did was, you know, I spoke to
• 14:07
  another lawyer in my firm at the time who had had kids and I
• 14:09
  said, hey, what should I do? Like, what should I be thinking
• 14:11
  about? What do I not know?
• 14:13
  And she sat down and gave me some really great advice about
• 14:15
  how to plan for my first mat leave.
• 14:18
  You know, that people who weren't who hadn't taken
• 14:21
  extended leaves, You know, in the same way that many mothers
• 14:24
  do and is becoming more common for some fathers that have maybe
• 14:30
  hadn't turned their minds to, you know, one thing she said,
• 14:32
  you know, which is relevant to anyone who gives, you know, to
• 14:34
  people who give birth is you don't want to be writing
• 14:37
  transfer memos on your way to the hospital.
• 14:39
  And I was like, yeah, I don't want to be doing that.
• 14:41
  That sounds horrible, but it, you know, it's not that uncommon
• 14:44
  in the legal world to be doing that.
• 14:45
  And so to have someone identify that for me and say, don't do
• 14:48
  that. I was like, great advice, thank
• 14:50
  you. And so, you know, in whatever
• 14:52
  industry you're in, speak to other people who've taken
• 14:55
  extended leaves and to other people, if you're a mother, you
• 14:57
  know, other people who've given birth or if you're a non birth
• 15:00
  parent to other people who have taken parental leaves and figure
• 15:03
  out, you know, what are the things that worked for them,
• 15:06
  that didn't work for them, what they had wish they had known.
• 15:09
  And I think that that can help you really sit down and think
• 15:11
  about what you want. And as a business owner, when I
• 15:14
  took my second mat leave, I had my own vision of what I wanted
• 15:17
  and it was constantly changing. And my business partner sat me
• 15:20
  down and she's like, I can't, I can't deal with this.
• 15:22
  Like, I don't know when you're working.
• 15:23
  I don't know why you're not working.
• 15:24
  I don't know what you're taking care of.
• 15:25
  I'm supposed to be taking care of everything.
• 15:27
  I'm here to support you. And you just keep butting in.
• 15:29
  She was like, set some boundaries, please.
• 15:32
  And we sat down when my baby was, my second baby was about
• 15:35
  four or five months. And we set some really clear
• 15:37
  boundaries. And that was actually incredibly
• 15:39
  strengthening for our business. It was actually a really
• 15:42
  productive move forward to very clearly delineate what was my
• 15:45
  responsibility and what was her responsibility, what were my
• 15:48
  work hours going to be and when I was not going to be logged on.
• 15:51
  And I had to promise her I wouldn't.
• 15:53
  And that actually, I think really helped her as my partner
• 15:57
  that was trying to support me at work.
• 15:59
  It helped her fill in for everything and it actually gave
• 16:03
  me the permission to step away on that during the times that I
• 16:08
  wasn't supposed to be working and enjoying my time with my
• 16:11
  baby. Yeah, I think that's just such a
• 16:13
  good wisdom for anything to do with parenting and moving into
• 16:17
  this phase because it's it's like your partner and things,
• 16:19
  things will continue to evolve. And I imagine that wasn't just
• 16:22
  one conversation. I imagine there was continuous
• 16:25
  conversations when you're like, OK, I'm like craving a bit of
• 16:28
  stimulant. I don't know if that was you,
• 16:29
  but like I'm craving some stimulation.
• 16:31
  Like, OK, I'd like to be, I'd like some more like dates are
• 16:33
  like, OK, can I start to ease in?
• 16:35
  Like I imagine you'd have continuous conversations.
• 16:38
  It's like what I always say about my husband and I like we
• 16:40
  have these like recalibration meetings, especially in the
• 16:42
  early days of our babies, we'd have to like sit down and be
• 16:45
  like, OK, things are different 3 weeks later because children
• 16:48
  change so fast. Like, OK, how do we want to now
• 16:51
  approach things? This was great three weeks ago.
• 16:53
  It's not great anymore. How do we, how do we pivot?
• 16:56
  And maybe like, you know, from that, I know this is an illegal
• 16:59
  perspective, but from the workplace perspective, that
• 17:01
  communication, you can change your mind.
• 17:03
  First of all, I just believe you can change your mind unless
• 17:06
  there's like contractual things we're talking about, I'm sure.
• 17:08
  But you're allowed to change your mind and say, hey, boss,
• 17:10
  like, you know, it's been great to be like completely dark for
• 17:13
  the last six months. We're coming up to the review
• 17:14
  period. I actually want a little bit
• 17:16
  more contact and I want to know what's happening with promotions
• 17:19
  around me. I want to know what's happening
• 17:20
  with my review process. Like I want to be involved.
• 17:22
  Like you're allowed to, you're allowed to do both, I think.
• 17:25
  What are your thoughts? Yes, yes.
• 17:28
  And because I do both sides of this, because I do work for both
• 17:31
  employees and employers, like I can see the arguments on both
• 17:35
  sides that on the one hand, like, well, I think employees
• 17:38
  should be, should be encouraged to have flexibility and to adapt
• 17:40
  and adjust. And there's also a range that an
• 17:43
  employer can tolerate. An employer is required under
• 17:46
  the human rights Code and BC, at least in comparable legislation
• 17:49
  across Canada, employers are required to accommodate to the
• 17:52
  point of a new hardship. And so where these
• 17:55
  accommodations are so difficult, where the employee on Monday
• 17:59
  says one thing on a Wednesday, something different.
• 18:01
  And on Friday, again, something different the employers duty is
• 18:05
  to accommodate to the point about new hardship that at some
• 18:07
  point the employee could be so difficult with their changing
• 18:10
  demands that it may meet the threshold of undue hardship.
• 18:13
  And accommodation can look like different things.
• 18:15
  And so when it comes to pregnancy accommodation or
• 18:18
  parental, you know, family status accommodation or
• 18:20
  disability accommodation even. And you know, it can look like,
• 18:23
  you know, you are not medically fit for work right now or you're
• 18:26
  not available to be working. And so we're going to
• 18:28
  accommodate you by placing you on a leave and we're going to
• 18:31
  hold your job for you for when you're ready medically ready to
• 18:34
  come back to work. And so an employer, like
• 18:36
  employees don't have a right to dictate the terms of their
• 18:38
  employment. And employee doesn't have a
• 18:39
  right to change their mind every 5 minutes.
• 18:41
  And, you know, particularly where an employee says, look,
• 18:44
  I'm gonna be off for 18 months. I think it is respectful for an
• 18:47
  employee. And it is proper planning for an
• 18:49
  employer to hire a replacement employee, right?
• 18:51
  Where an employer says, you know what, we don't need to replace
• 18:54
  you. We'll just disperse your work
• 18:55
  amongst everyone else or we'll just put your job on pause for
• 18:57
  18 months. You know, to me that like that
• 18:59
  signals like you don't value me or my job isn't necessary here.
• 19:03
  And so I think it is important for employers to hire
• 19:06
  replacement employees. And so if an employer makes a
• 19:09
  commitment to another employee and says you've got a job for 18
• 19:12
  months and this person's going to come back from leave and our
• 19:14
  legal obligation is to hold their role.
• 19:16
  And so I'm sorry, this is only an 18 month contract, which
• 19:19
  culturally is very common in Canada.
• 19:21
  Then in that scenario, if the employee says, actually I'm
• 19:24
  bored, it's been 3 months, but I'd like to come back to work.
• 19:27
  Well, like that wasn't the plan, right?
• 19:29
  There's someone else sitting. They can't just like now they've
• 19:31
  got to displace someone else. Like if it's a small company,
• 19:34
  there may not be budget to have both people there.
• 19:37
  And so that employer may say, look, we agreed very firmly to
• 19:40
  an accommodation. We went out of our way to
• 19:42
  support you. We had, you know, a three-week
• 19:44
  overlap for you to train an onboard this person and they're
• 19:46
  doing a great job. And like we don't have a role
• 19:49
  for you right now. And I don't think that's
• 19:52
  discrimination for the employer to, you know, not pivot on a
• 19:55
  dime. But maybe, you know, again, back
• 19:59
  to communication, maybe they've hired someone, but they're
• 20:01
  terrible and the employers like, oh, thank goodness.
• 20:04
  We'd really like to let that person go and welcome you back
• 20:07
  and so. You know, where, where there's
• 20:10
  an arrangement that's gonna be mutually beneficial, then, you
• 20:13
  know, I think communication can help work through that problem.
• 20:17
  But employees at the same time don't.
• 20:19
  Well, employees I think can change their mind and ask for
• 20:21
  something different. They don't have the right to
• 20:23
  dictate the terms of their employment.
• 20:24
  OK, you know what, that's really fair.
• 20:26
  And I think this is really good information just to know.
• 20:28
  I I like that you can speak from both sides because I think it's
• 20:31
  important to know where the other person's coming from.
• 20:33
  And so this is good like armor. It's not to say you're not
• 20:37
  allowed to go back and say, hey, I want to flip this past you,
• 20:40
  take her to leave it. You know, like, OK, but if we
• 20:42
  reverse this errand and we say the employee said, like I
• 20:48
  actually in my corporate job, they asked me on a sheet of
• 20:51
  paper to write down my expected return date.
• 20:54
  I thought that was kind of weird, but I guess it's a big,
• 20:58
  it was a big company. They needed to like plan.
• 21:00
  They needed that. They need to plan.
• 21:01
  They need to know, are you taking four months off or going
• 21:04
  to make do? Because like when when a lot of
• 21:06
  dads or non birth parents take leave, maybe it's two weeks or 4
• 21:09
  weeks or six weeks and maybe it's treated more like a
• 21:11
  vacation than a leave. Yeah, but when it's a birth
• 21:15
  parent who's taking 12 plus months, like they might need to
• 21:18
  hire someone. Yeah, it felt weird.
• 21:20
  I was like, also a wildly pregnant woman who was like,
• 21:23
  writing this date down. And I was like, I can't even
• 21:25
  like I want to cry thinking about coming back.
• 21:28
  And it just it was, it was a lot.
• 21:30
  But anyways, OK, so say the person is like, say I wrote down
• 21:34
  three months from now and I put that on the piece of paper.
• 21:37
  And then in the reverse, based on your logic, what you're
• 21:42
  saying is it's inappropriate for me to then say I want an extra
• 21:47
  12 months because they haven't made plans?
• 21:49
  For that, but like if you plan for three months now you want
• 21:52
  12, I think there is still time to make a plan for that.
• 21:55
  OK, OK, OK. Right.
• 21:57
  So like, you know, and if I'm an employer and I've got an
• 22:00
  employee who says, look, I really thought I was ready to
• 22:02
  come back to work, but like this baby's difficult.
• 22:04
  Like I haven't slept, I'm not functioning.
• 22:07
  I've got like postpartum depression or I don't really
• 22:09
  want to tell you what's going on with me.
• 22:11
  I just want to tell you that it's not good.
• 22:12
  What is going on in my house is very bad and if.
• 22:15
  I come my vagina, vaginal area. Fine.
• 22:18
  Whatever. I'm gonna tell you.
• 22:19
  I'll tell. You, they don't, they don't want
• 22:20
  you to tell them. I'm gonna tell you.
• 22:22
  They don't want to know if the details of this, but if, if it's
• 22:26
  not going well, like as an employer, like employers don't
• 22:29
  want low functioning employees to come back to before they're
• 22:32
  ready, you know, like for an employee to say, like, I am low
• 22:35
  functioning and I'm going to come back to work and fail.
• 22:38
  Like I've seen it. I've seen people come back from
• 22:40
  leaves before they're ready and the employee underperforms.
• 22:43
  And then the employer comes against legal advice from us and
• 22:46
  they say, now what do we do? And now we're dealing with, you
• 22:48
  know, it's usually disability. It's it's usually disability
• 22:50
  accommodation. But now they're dealing with
• 22:52
  someone who's medically unwell, who's underperforming in their
• 22:55
  role, and it's just bad all around.
• 22:57
  And what may have actually been a pretty good employment
• 22:59
  relationship can deteriorate. And so my advice to employees in
• 23:03
  that situation is like, if you're not at your best and
• 23:05
  you're not ready to go back to work and you're gonna
• 23:07
  underperform and fail and and not meet expectations.
• 23:10
  Like the employee. I think in that situation is
• 23:12
  better to take the time that they need to become a more
• 23:15
  productive, functional human before going back to work.
• 23:19
  And if that's the way they need to communicate it to their
• 23:22
  employer, which is, hey, I really thought that I could do
• 23:24
  this, but I'm going to come back to like, you're better off.
• 23:26
  I think my keep my replacement. Like if that person wants the
• 23:29
  job, let them stay. And, you know, I wanna take my
• 23:32
  12 or 18 months of statutory protected leave and I wanna come
• 23:35
  back to work like once my infant sleeps through the night, like
• 23:37
  once I'm actually functioning, you know, then I let's, let's
• 23:40
  talk about what. But I think what's what
• 23:42
  employers are going to struggle with is, you know, I think I
• 23:46
  actually like a few four more weeks, actually four more weeks,
• 23:48
  actually four more weeks. Actually, we do four more, you
• 23:51
  know, like if an employee reaches that point where they're
• 23:54
  like, look, I'd plan for three to six months, but like I, no,
• 23:57
  I've, I've figured it out that I need 12 plus.
• 24:01
  Like that's the time to sit down and really dig deep and think
• 24:04
  about like, what is realistic? I think that is very good advice
• 24:09
  too, you know, never thought about that.
• 24:12
  Obviously it makes so much sense, like don't stop, don't.
• 24:15
  Nobody should be dicking each other around.
• 24:16
  And that's just a whole lot of dicking people around.
• 24:19
  You have to put it in legal terms.
• 24:21
  That's that's hard. That's hard on both ends.
• 24:24
  And I think that you do need, I don't know, I'm thinking like,
• 24:26
  would my postpartum days like you do need, It's nice to know
• 24:30
  that there's that things don't have to be black and white.
• 24:33
  That's we're saying it doesn't have to be black and white, but
• 24:36
  that it can't just be loosey goosey all over the place.
• 24:38
  It's not actually good for anybody.
• 24:39
  Is that good for you and your mental state to be like, OK,
• 24:41
  this is the date. This is what I'm working
• 24:43
  towards. Like I also want to bring up
• 24:45
  something that you and I discussed when we first met and
• 24:48
  that was around short, long term disability.
• 24:50
  And I thought you had such an interesting perspective from an
• 24:53
  employer's perspective. So we're talking about that like
• 24:55
  disability accommodation coming back and being like, listen,
• 24:58
  something I'm still really reeling with postpartum
• 25:01
  depression, anxiety, like, or physically there's stuff going
• 25:04
  on and you're like, I don't think I'm fit to come back.
• 25:07
  But I need like, say it's me. I need the money.
• 25:10
  I actually need to come back because I need the money.
• 25:13
  Well, I thought it was so cool that you were saying, and you
• 25:14
  could explain on this for me is that you were saying that's why
• 25:17
  I set things like short term disability exist so that you're
• 25:20
  not putting that person out on EI, which is money.
• 25:25
  But it's like a lot of people can't live on that forever if
• 25:28
  you're used to a certain lifestyle.
• 25:30
  And I thought that was so brilliant that you said that's
• 25:33
  why these types of protections exist, so that everybody wins.
• 25:36
  Yeah, it's, it's such a struggle.
• 25:38
  Where where I'm working for an employer and the employee, they
• 25:44
  have an employee who's underperforming, obviously isn't
• 25:46
  well, like maybe it's curled up under their desk for half a day
• 25:49
  and it's just like not turning a work product.
• 25:50
  Like I hear this story over and over again and the only like the
• 25:56
  employer has a duty to accommodate the employee.
• 25:58
  But accommodation doesn't mean that we have a, that the
• 26:00
  employer has a legal obligation to pay someone who's not
• 26:03
  working. Accommodation can look like, you
• 26:07
  know, supporting that person through a medical leave.
• 26:10
  But the answer that, you know, a lot of employees, you know, are
• 26:12
  kind of on and off work will say like, you know, I've already,
• 26:15
  you know, maybe I've already exhausted my EI medical benefits
• 26:18
  or maybe I'm not eligible for whatever reason.
• 26:20
  And you know, the employee says I simply can't afford not to
• 26:23
  work. And that's probably one of the
• 26:25
  most difficult situations that I help employers with.
• 26:29
  And I also help employees navigate that on their own.
• 26:31
  You know, I've had employee clients in my office who are
• 26:34
  looking for accommodation and looking for return to work.
• 26:36
  And perhaps it's somewhat financial pressure.
• 26:38
  And it's just so apparent to me that they are not medically well
• 26:42
  enough to be functioning at work.
• 26:44
  And, you know, the employer doesn't have a legal obligation
• 26:47
  like the employer has a duty to make inquiries, to inquire
• 26:51
  about, you know, how you know what the persons, the nature of
• 26:55
  the person's disability and the nature of the limitations they
• 26:58
  have and what accommodations they require to be successful at
• 27:02
  work. But the purpose of
• 27:04
  accommodations is to get them back to a successful level, not
• 27:07
  to lower the standards. It's to help them meet the
• 27:09
  standards. It's to give them support so
• 27:11
  they can meet the standards. And so that's a really tricky
• 27:14
  situation to navigate. And so an easy solution, I'm
• 27:18
  going to pitch disability benefits is, you know, where the
• 27:21
  employee is eligible for, for medical EI or if there's, you
• 27:25
  know, a robust short term disability program, it's really
• 27:28
  easy to say, look, we have these benefits.
• 27:29
  They're here for this purpose. You know, you're obviously not
• 27:33
  medically fit. You know, go deal with yourself.
• 27:36
  Like go get therapy and go get your meds straightened out and
• 27:39
  go do what you need to do and let us know when you're
• 27:42
  medically well enough. Then we'll hold your job for you
• 27:44
  and we'll welcome you back to work then.
• 27:46
  But until then, these benefits are here to support you through
• 27:48
  this difficult time. And so a lot of employers don't
• 27:51
  have short term disability benefits and we end up in this
• 27:54
  tension where the employee has a financial need to work, but
• 27:57
  maybe isn't actually well enough to be at work.
• 28:00
  How is it like wildly expensive? Is that why they people don't
• 28:03
  put these protections in place like employers?
• 28:05
  Yeah, I can expect, I mean for institutional clients like large
• 28:07
  employers will have these kinds of benefits, the standard.
• 28:10
  But yeah, I mean, extended health benefits are expensive.
• 28:12
  Yeah, yeah. OK, here's another scenario.
• 28:15
  And then what we what I want to do is telling you that I want to
• 28:17
  go through like the employee lifecycle.
• 28:19
  Sorry, one more thing, but it can be expensive not to have
• 28:22
  extended health benefits. Sorry, sorry.
• 28:24
  Continue their questions. Hiring, Hiring is, I mean I
• 28:27
  remember back in the day probably 10 years ago and I got
• 28:29
  into learning and development etcetera.
• 28:31
  There turnover cost was huge. It was $25,000 per employee, an
• 28:37
  employee and you train somebody, it's probably way more now.
• 28:40
  I would say 50 depends on your level.
• 28:43
  Sorry, but you had a question that I.
• 28:44
  No, I have so many questions. Let's make this a six part
• 28:48
  series. Part 1 And and I was gonna joke
• 28:54
  that like you should have some sort of like medical benefits,
• 28:56
  like, I don't know, partner that you can like get a kickback
• 28:58
  from. My my friend works with someone
• 29:01
  fantastic, so if anyone's shopping around for excellent
• 29:04
  health benefits, feel free to reach out.
• 29:06
  OK, OK, OK, here's the scenario. You are on leave and you'll get,
• 29:12
  I hear this so much in my business.
• 29:15
  I work with a lot of, you know, executive senior leaders.
• 29:18
  They come to me and they're like, I am getting so much
• 29:21
  pressure from my leadership, say like a CEO or like whoever it
• 29:26
  is, the business owner, whatever.
• 29:28
  I'm getting so much pressure to come back early.
• 29:30
  I'm really the only person who can do this job.
• 29:32
  It's like they were backfilling me.
• 29:33
  Say they're like, you know, director of their area.
• 29:35
  They're kind of like this specialty person.
• 29:37
  They're getting that. They're getting so much pressure
• 29:39
  that it feels almost like they're going to ruin the
• 29:42
  relationship, ruin their reputation.
• 29:43
  Like, that's a weird 1. And I hear this one all the
• 29:46
  time. Like what on earth does a person
• 29:48
  do in that situation? That's such a stressful
• 29:50
  question. I actually, I don't think I've
• 29:52
  ever, I don't think I've received that question.
• 29:54
  So interesting that you hear that all the time.
• 29:55
  I don't think I've heard that one yet in my professional.
• 29:57
  Life people don't go to lawyers for that question because
• 30:00
  they're like, I'm just gonna grammar it.
• 30:01
  There's nothing I can people feel helpless.
• 30:03
  So to the point where they're like, I'm not going to sick a
• 30:05
  lawyer on this person. Yeah, I mean, it's not really a
• 30:08
  legal question. It's it's a really difficult
• 30:11
  situation to be in. I mean, look, there may be
• 30:14
  reason this goes back to your first question of do I stick it
• 30:16
  out with this job that I hate because I'm planning on having
• 30:18
  another kid And like that's a valid choice for some people.
• 30:22
  Is, is job preservation now legally speaking, because you
• 30:26
  know, under the Human Rights Code, at least in BC and I
• 30:29
  assume in most provinces, if not all provinces in Canada,
• 30:32
  employers have a legal duty to accommodate.
• 30:34
  And an employer can't, you know, retaliate against an employee
• 30:37
  for exercising their rights under the Human Rights Code.
• 30:40
  And so it's very difficult, it's very difficult legally to fire
• 30:44
  an employee who's coming back from a protected leave.
• 30:46
  And NBC, at least we also have protections for that in our
• 30:48
  Employment Standards Act. And the consequences of the
• 30:51
  legal consequences for firing someone in connection with a
• 30:55
  protected leave like maternity, pregnancy or parental leave can
• 30:59
  be quite expensive. And employers know that.
• 31:01
  And so employees should also be armed with that information that
• 31:05
  if they, you know, are fired during a leave because they've
• 31:08
  taken the leave or on their first day back because the
• 31:10
  employer likes the replacement better and that an employee can
• 31:13
  go after them legally for a pretty significant compensation.
• 31:16
  And so employees do have some security there.
• 31:20
  And you never want to be heard some really great advice this
• 31:22
  week. Like, you know, it was in
• 31:23
  relation to a partnership agreement, but I think it was
• 31:25
  applies to employment law as well.
• 31:27
  You know you should never be in a place where you're like
• 31:29
  referencing the law and your employment agreement in the
• 31:32
  context of your employment relationship, right?
• 31:34
  Like I always. Say that again.
• 31:35
  Say that. Like you should never like be in
• 31:37
  a place where you have to refer to your employment agreement or
• 31:39
  the law to enforce your rights. Like you don't want to be in my
• 31:43
  dream world. You don't want to be in an
• 31:45
  employment relationship where you're going to your employer
• 31:47
  and saying I legally have this right to this protected leave.
• 31:52
  You know, like to me, that's a signal that of what's to come as
• 31:57
  a parent, you know, in those mornings where you're like today
• 31:59
  didn't go out with camp drop off, that was today and I
• 32:02
  struggled to get to work on time or my kids sick and I need the
• 32:06
  school called. You know, there's all kinds of
• 32:08
  stuff that's going to come up through parenting that you're
• 32:11
  as, as an employee, you're going to need support and
• 32:13
  understanding from your employer.
• 32:14
  And while, you know, an employer doesn't have a legal obligation
• 32:17
  to pay you for time that you're not working, there's different
• 32:19
  ways to come up with, especially for professionals to come up
• 32:22
  with ways to, you know, either I want to work 80% or I'm going to
• 32:25
  make up the time, you know, between 8:00 and 10:00 PM after
• 32:27
  my kid goes to bed. Like there's different ways to
• 32:29
  make employee relationships work.
• 32:31
  And when you're already encountering that friction and
• 32:33
  you're feeling, and for some, and I wanna clarify, there's
• 32:35
  some people who want, who need that accommodation from their
• 32:38
  employers. And there's some people who say,
• 32:40
  no, I, I do want to prove that I'm just as good, you know, that
• 32:43
  I can have a kid and do everything.
• 32:45
  You know, there's different types of parents out there.
• 32:47
  But if you're the type of parent and your employer is already
• 32:49
  giving you grief about taking your statutory protective leave,
• 32:52
  like to me, that's a red flag that this potentially is not
• 32:56
  going to work out through renting.
• 32:58
  Um, but on the other hand, it is you're in people who are on
• 33:02
  leave and are in a very vulnerable place, right?
• 33:05
  Like you're not at work every day.
• 33:07
  Your employer doesn't, you're not giving that value in that
• 33:11
  moment that the employer is seeing and congratulating you on
• 33:14
  the employers irritated that you're not there as your high
• 33:17
  performing usual self. And that to me is like is
• 33:20
  starting to show a breakdown. And while, you know, a person on
• 33:24
  leave is very anxious about losing their job and having to
• 33:26
  interview, you know, and I, you know, I've spoken with a lot of
• 33:29
  women who are on their first leave and dealing with friction
• 33:33
  at work, but are already pregnant with their second and
• 33:35
  haven't told their employer yet. And how you know?
• 33:37
  And then what now if this doesn't work out, I can't go
• 33:40
  back to work. I can't re accrue EI and now I'm
• 33:44
  out and how do I not like how do I navigate that financially?
• 33:47
  And these are really difficult places to be in.
• 33:49
  And if depending on the persons, you know, my legal advice always
• 33:52
  depends on the person's financial situation, you know,
• 33:55
  like, are you in a financial place where you don't need to
• 33:58
  deal with that garbage? And you can just say, you know
• 34:01
  what? I don't need this in my life.
• 34:02
  I'm going to finish my leave. And if I don't have a job at the
• 34:04
  end of it, that's OK and I'll figure it out.
• 34:08
  Or are you in a financial place where you need this job and
• 34:12
  where you will do, you will grin and bear it and do everything
• 34:14
  that you have to do because you're very vulnerable and need
• 34:18
  to come back to work. And you know, my legal advice
• 34:21
  will really vary depending on the person's individual
• 34:23
  circumstances. Are there any loopholes for
• 34:26
  that? That that is such a common
• 34:27
  story, especially as, you know, if the birthing parents are in
• 34:32
  their 30s when they're getting started, like most of us have
• 34:34
  been. And you're kind of getting to
• 34:36
  that point where like, I kind of want to knock the babies out.
• 34:38
  Like I want to have them one after another.
• 34:39
  I know a bunch of people who were pregnant going back to work
• 34:43
  and and almost didn't make that accruing of hours so that they
• 34:47
  could get back. Like are there any loopholes for
• 34:49
  like sometimes shit happens like those people just don't get eye.
• 34:53
  Is that what we're? Yeah, you're giving up the
• 34:55
  story. Yeah.
• 34:56
  So if you don't come back to work after your leave and
• 34:59
  accrued enough insurable hours, you know, get I like for you
• 35:02
  can't, you don't. You're not entitled to another
• 35:04
  leave. And I've seen this before, like
• 35:06
  in terminations, like post leave, like in Group
• 35:09
  terminations, for example, where perhaps the company is, you
• 35:12
  know, because in law, like where there's, you know, a layoff and
• 35:16
  one person's impacted and the only person impacted is the
• 35:19
  person who was off on leave and the person who was hired to
• 35:22
  replace them is still there. Like that's not a true
• 35:24
  restructuring, right? That's where restructuring you
• 35:27
  because we like your replacement better.
• 35:29
  And that's discrimination under the BC Human Rights Code.
• 35:32
  But where, for example, a company really is doing a group
• 35:35
  layoff. And where, like I had a
• 35:36
  situation years ago where my client who was the employee was
• 35:42
  often leave and she came to me and she said, hey, my whole team
• 35:44
  got fired two months ago. And like, I know I'm getting
• 35:47
  fired on my first day back. And she and I was like, OK,
• 35:50
  we'll just take the paperwork and come talk to me about it.
• 35:52
  And in that case, you know, I really didn't think there was
• 35:54
  discrimination because they weren't firing her in connection
• 35:57
  with her leave. Her whole her whole team got
• 35:59
  fired. And the employer there was
• 36:01
  thinking, do we call her in during leave to fire her to give
• 36:04
  her a heads up? And I've had these conversations
• 36:06
  with employers too. Or do we let her have her
• 36:09
  protected time off and call her in on her first day back and
• 36:12
  fire her? But like, this isn't because of
• 36:14
  her leave. It's like across the company,
• 36:16
  like there's a lot of people who are impacted and that company
• 36:19
  made it. And she just wanted to know and
• 36:20
  that company made a choice to fire her on her first day.
• 36:22
  And so she comes into the office, she says, can I have the
• 36:24
  letter, please? And I handed it to her and she
• 36:26
  left. I remember that the lawyer on
• 36:28
  the other side called me and he's like, is trying to be
• 36:31
  worried about her. Like is she OK?
• 36:32
  Like that was weird, it was a weird behavior, but she like she
• 36:37
  knew it was coming and it wasn't discrimination.
• 36:40
  But in that case, like in a case like that, what we're looking at
• 36:43
  is, you know, the employee who's being fired at the end of their
• 36:46
  leave is, is negatively impacted because of their leave, right?
• 36:50
  That if they've taken 12 or 18 months, then they've exhausted
• 36:53
  their full EI entitlement and they're not eligible for regular
• 36:56
  benefits either. And so one of the things that we
• 36:59
  can do in that situation is structure the severance package
• 37:02
  as salary continuance rather than pay in lieu so that the
• 37:06
  employee can continue to accrue both insurable wages, but also
• 37:10
  insurable hours so that they can requalify for EI.
• 37:14
  And so eligibility hours vary across the country and depending
• 37:18
  on employment insurance, like it depending on unemployment rates.
• 37:22
  But if it's 600 or 700 hours, you know, that's 4:00-ish months
• 37:25
  of full time employment. And so if the package is going
• 37:27
  to be 4:00-ish months or more than we can structure that
• 37:30
  severance package so that that employee can re qualify for EI
• 37:34
  benefits at the end of the severance package.
• 37:36
  OK, so instead of instead of getting say, some sort of like
• 37:38
  lump sum, like, here you go. But yeah, you're saying we're
• 37:41
  gonna pay your salary for four months.
• 37:44
  Those are insurable hours. Insurable, meaning you can
• 37:47
  accrue EI. Yeah, it can accrue
• 37:50
  entitlements. Yes, you have to accrue.
• 37:52
  So if you get a set like a lump sum severance package, it's
• 37:55
  insurable earnings, but it's not insurable hours and you need to
• 37:59
  have a certain number of insurable hours to qualify for
• 38:02
  EI. Why is it called insurable?
• 38:04
  I don't know. That's confusing.
• 38:07
  Yeah, Yeah. OK.
• 38:08
  Yeah. And so if a severance package is
• 38:11
  structured as a salary continuance that an employee can
• 38:15
  earn, they can continue to accrue insurable hours, which
• 38:19
  will make them re qualify for EI.
• 38:21
  It's like they come back to work, they get paid salary
• 38:23
  continuance, but they don't actually come back to work or
• 38:25
  work. And so there's different things
• 38:27
  that we can do to like alleviate that negative impact as a result
• 38:31
  of the leave, you know, even where it's not discrimination
• 38:34
  necessarily. I love that whole, I mean, even
• 38:37
  just hearing you talk about organizations and just like this
• 38:41
  and that like there's just, I'm just getting so much knowledge
• 38:44
  from this. It's funny because I hope to not
• 38:46
  actually be employed by somebody again in my life, but I even
• 38:49
  find this fascinating. Let's take it back to the
• 38:53
  beginning of say the employee life cycle and let's actually go
• 38:56
  with like the baby person. Maybe someone's like been out of
• 38:58
  the workforce for 20 years and it's like they're starting
• 39:00
  fresh. Let's just start from the
• 39:01
  beginning. So somebody has got a job offer.
• 39:06
  Let's say, yeah, let's say paperwork.
• 39:08
  Let's start there. And they're like, oh, this is
• 39:11
  exciting. This is the job I've been
• 39:12
  applying for. Like worked so hard to get this.
• 39:14
  And they're like taking their pen out and about to sign.
• 39:17
  What should they be doing? What should they be looking for?
• 39:20
  Lay it on me. So that depends who you speak
• 39:22
  to, but you know, we work closely with some ladies who
• 39:27
  help people negotiate comma particularly who help women in
• 39:30
  particular and negotiate comp. Shout out to the thoughtful code
• 39:34
  at the Thoughtful Co. We love them.
• 39:36
  And they spent a lot of time and energy there.
• 39:39
  And what we do differently as employment lawyers is we think
• 39:42
  about all the things that could go legally wrong and try and
• 39:44
  protect for that. So I spend a lot of my time, you
• 39:48
  know, fighting about termination clauses and what we call
• 39:51
  restrictive covenants, which are post employment restrictions.
• 39:55
  So things like non competition clauses and non solicitation
• 39:58
  clauses and so on. The termination clauses, you
• 40:02
  know, when you're entering into an employment relationship,
• 40:04
  you're excited and it's optimistic and you have this,
• 40:07
  you know, glassy eyed view that as long as your relationship is
• 40:11
  good, you can solve any problem. Hopefully, right?
• 40:14
  But where lawyers often get involved is when that employment
• 40:17
  relationship breaks down. And now it's about, well, how
• 40:20
  much money does my employer? For me, and so before signing a
• 40:24
  contract, you know, I encourage all employees to carefully read
• 40:28
  and understand the termination clause.
• 40:30
  And the employer's goal in drafting A termination clause is
• 40:34
  to limit how much notice or severance they're going to owe a
• 40:36
  departing employee. You know, and in many cases, a
• 40:39
  lot of clauses will be tied to the employment standards
• 40:43
  minimums and that will vary from province to province across
• 40:46
  Canada. And employees should be thinking
• 40:48
  about, well, what? What are how much if if I lose
• 40:52
  my job, how how long is it gonna take me to find a new job?
• 40:58
  And what kind of financial security do I need for me and my
• 41:00
  family? That took really great point.
• 41:04
  I want to interject here because especially as we're getting
• 41:07
  these audience who's listening are in their mid to higher
• 41:12
  earning career years, like we're kind of getting into that place
• 41:14
  where like maybe your job doesn't come available that
• 41:17
  often. Maybe you do something pretty
• 41:18
  niche like that is a really important thing to think about
• 41:21
  and to for and to like fork over some money for a lawyer to like
• 41:24
  help you think this through. Yeah.
• 41:27
  And depending on the province that you're in, like the law may
• 41:29
  be slightly different. Quebec in particular is very
• 41:32
  different from the English speaking provinces.
• 41:35
  But in the English speaking provinces, we look a lot at, you
• 41:37
  know, common law rights. And the termination clauses are
• 41:40
  often drafted for employees to sign away their common law
• 41:44
  rights. And it's written in, you know, a
• 41:47
  legal formula which, you know, the average employee isn't going
• 41:50
  to understand, you know, the implications of.
• 41:53
  I don't even understand first reading.
• 41:55
  So employees on termination under the common law, an
• 41:59
  employee, an employer can terminate an employee by giving
• 42:03
  them a certain amount of notice or compensation in lieu of that
• 42:07
  notice, what we call severance pay.
• 42:09
  And so under the common law framework, we look at, you know,
• 42:13
  roughly one month of notice or severance in in lieu of notice,
• 42:18
  you know, per year of service up to a maximum of 24 months.
• 42:22
  And in some provinces or some case law which pushes above that
• 42:25
  24 months. But if you're there for six
• 42:27
  years, you know, roughly 6 months of pay, you know, subject
• 42:29
  to factors like, you know, your age, the nature of your job, the
• 42:33
  availability of other work, how specialized is your role, what's
• 42:36
  the job market like? And you know, we argue over it
• 42:38
  as employment lawyers. But you know, at least in BC and
• 42:41
  Ontario and I think Alberta and a lot of other provinces, you
• 42:44
  know, the employment standards legislation will limit an
• 42:47
  employees rights on termination to something more like a few
• 42:50
  weeks as opposed to, you know, upwards of 24 months.
• 42:53
  And so, you know, you an employee who's been employed for
• 42:56
  six years in BC is entitled to a minimum of six weeks of pay.
• 43:00
  And so the longer someone employed for, you know, the more
• 43:03
  significant that discrepancy can become.
• 43:06
  Or, you know, an employee may be leaving, you know, a secure long
• 43:09
  term position based on promises of, you know, a long term fit,
• 43:13
  you know, maybe promises and recruitment of, you know, we
• 43:16
  hire for the long term, We're looking for a long term fit.
• 43:19
  We hope you're going to be with us for a long time.
• 43:21
  And then you see a termination clause which says we can fire
• 43:24
  you and your first three months with no notice or severance.
• 43:27
  And you know, that's an immediate red flag for me as
• 43:29
  employee counsel of like, you're leaving a job that you've been
• 43:32
  at for 15 years. They they love you and you've
• 43:34
  got job security and you've got a young family and you're moving
• 43:37
  somewhere where they don't like you in the first three months
• 43:40
  and they can fire you with nothing.
• 43:41
  Like, think about that for a minute and think about whether
• 43:44
  that's negotiable. And is that worth it?
• 43:47
  And did you have a hefty signing bonus that the thoughtful Co who
• 43:50
  we did a podcast episode with? I'll put that in the show notes
• 43:53
  has helped you to work on because if you're going to make
• 43:57
  a huge risk like that, you better be paid for that risk.
• 44:00
  You better have some financial security.
• 44:02
  Yeah. And, you know, you can negotiate
• 44:04
  for something more like, you know, a severance package that's
• 44:07
  one month per year up to a cap or maybe a lump sum of three
• 44:11
  months or six months in your first six years.
• 44:13
  And so, you know, I've seen, you know, employees negotiate 8-9
• 44:17
  months, you know, in really senior executive positions.
• 44:20
  And the employer can choose to go in a different direction and
• 44:22
  pay you out nine months and enjoy your paid time off.
• 44:26
  But you don't want to find, you don't want to leave a secure job
• 44:29
  to find yourself in financial insecurity.
• 44:32
  And I do also know people, clients and and others who have,
• 44:35
  you know, gotten that legal advice from me and, you know,
• 44:39
  gone back to the employer. It's not negotiable.
• 44:40
  They've signed it anyways. But at least they signed, you
• 44:43
  know, with full knowledge of what they're signing, you know,
• 44:46
  they know that their job legally is somewhat insecure and you can
• 44:52
  save for a rainy day. In most situations, when you get
• 44:55
  that contract and you're reading through, now I'm speaking from a
• 44:58
  more like emotional side, and I've had this happen to me
• 45:02
  before. And I know that I've worked with
• 45:03
  clients who have kind of felt this where like you're feeling
• 45:05
  so good in the interview process and you're really excited about
• 45:09
  the team and the work. And then you get the contract
• 45:11
  and all of a sudden you're dealing more with the recruiter,
• 45:13
  you're dealing with the lawyers, and you're like, what the actual
• 45:16
  fuck? Like I feel completely
• 45:17
  undervalued. They totally blindsided.
• 45:20
  Blindsided like is that our art? I mean it's like it's so
• 45:25
  different in every organization, but like is that a really big
• 45:27
  red flag or say like, you know, a medium sized company where
• 45:30
  like the the hiring manager is pretty disconnected from the
• 45:34
  lawyer. Is it not?
• 45:34
  It's not usually an indication. Not like they're jerks.
• 45:39
  It depends on how bad it is. Yeah.
• 45:41
  So like I saw a contract a few weeks ago.
• 45:44
  It it was horrific, like it was. Everything tell us as much as
• 45:48
  you. Can it was it just was
• 45:51
  completely nonsensical. Like it, I couldn't understand
• 45:56
  it like it did it just. No not even chat BT cause chat
• 45:58
  TBT. Would have been I don't even I
• 46:00
  can't even I can't even explain it, but I but I read it and I
• 46:02
  was like, this makes absolutely no sense.
• 46:05
  And to me it's indicative of a company that just doesn't have
• 46:09
  it together. Like, I want you to know, like,
• 46:11
  like this is so bad. It was such a poor attempt that
• 46:14
  I want you to know to your client that you're heading into
• 46:17
  a gong show of a company. And the client was like, I know
• 46:19
  that and that's why I'm being brought in.
• 46:20
  And I was like, OK, so it's not always hard.
• 46:23
  No, you can't sign this. It's just like as a lawyer,
• 46:27
  here's what I'm seeing in the paperwork.
• 46:29
  What I'm seeing in the paperwork is, and sometimes it's, you
• 46:32
  know, they've promised you all these things verbally and the
• 46:35
  contract says something different.
• 46:36
  And bonus is a big one that we talked about, for example,
• 46:40
  because they may say, you know, we pay out huge bonuses and you
• 46:44
  know, you should expect this and that and we're very generous and
• 46:47
  it's gonna be big. And then you see the contract
• 46:49
  and the contract might be written so that it does entitles
• 46:51
  you to bonus. It might say, you know, you have
• 46:54
  to, it's not earned until it's paid.
• 46:57
  You have no entitlement to it. We can change it from year to
• 46:59
  year. It's totally at our discretion.
• 47:01
  And if we fire, you get nothing. And so there's just a miss
• 47:05
  mismatch there, right? A contract should be a plain
• 47:08
  language document which documents the the key terms
• 47:11
  between the parties. And if you're being promised one
• 47:14
  thing verbally about a hiring manager and then you see the
• 47:17
  contract and it says the opposite and you go back to the
• 47:19
  employer and you say, I don't understand this distinction.
• 47:21
  Oh, that's just legal. They drafted it that way.
• 47:24
  You know, I have no ability to change that, but trust me, it's
• 47:27
  going to be fine. Well, then you get to decide, do
• 47:29
  you want to trust this person or not?
• 47:32
  And for employees, and I hear that all the time from hiring
• 47:35
  managers, you know, well, legal did it.
• 47:37
  And we just don't want to pay the legal fees to go back and
• 47:39
  redo it. We've been told not to.
• 47:41
  Or maybe you're not senior enough or important enough to
• 47:43
  justify that legal bill. It is what's the undertone of
• 47:46
  that? And so in that case, sometimes
• 47:48
  I'll recommend to the employee, look, this isn't really legally
• 47:50
  binding, but like maybe you sent an e-mail that says, you know,
• 47:54
  I'm signing this document on the on the understanding that you've
• 47:57
  promised me this verbally. And sometimes, like the employee
• 48:01
  wants the job bad enough that that's, that's like something we
• 48:05
  can do. It may or may not stand up in
• 48:07
  court, but the employee should tuck that e-mail away, say that
• 48:11
  just in case, right? It's it's.
• 48:13
  Kind of a way to piss someone off when you're not having
• 48:15
  started yet. But I and that's my that's my
• 48:18
  career coach hat. That's my more like Gray area
• 48:22
  life that I oh, that's. For that, other than other times
• 48:25
  you play comes to me and says like I think these things are
• 48:27
  unfair and I'm like it's this is pretty standard.
• 48:29
  I see it a lot. You might not like it.
• 48:31
  It's pretty common. Yeah, might be my advice, but I
• 48:36
  think I think an employees and we we say this to employer
• 48:39
  clients and we work with them, is that I think the onboarding
• 48:42
  documents speak to your culture, right?
• 48:43
  Your offer letter, the employers offer letter is the sales pitch.
• 48:47
  It's here's all the glossy reasons why you want to come
• 48:49
  work for us. We're so excited to have you.
• 48:51
  And if the offer letter is like isn't glossy and shiny and
• 48:55
  exciting like I think I think that does say something.
• 48:58
  It can say something about a company's culture.
• 49:02
  And so I think it should tell you what you're getting into,
• 49:05
  that maybe you're getting into a into a company that's overly
• 49:08
  formulaic, you know, likes to dot their T's and cross their
• 49:11
  eyes. You know, isn't going to be
• 49:13
  flexible, isn't going to bend, or maybe there's just a total
• 49:16
  disconnect between legal and HR. Yeah.
• 49:20
  And maybe it's gonna be great. Maybe.
• 49:21
  I have no idea. Call me Caleb.
• 49:23
  OK, Non compete. This is a big one.
• 49:27
  It's a tricky one because you see this list of nonprofits, we
• 49:31
  are speaking, Aaron and I are both in Vancouver, Canada.
• 49:33
  So we're going to speak just from our like our example here
• 49:35
  in the context of which we live, which we work, which is a couple
• 49:39
  really big retail companies that have a lot of weight.
• 49:45
  They put every class literally put in their non contract before
• 49:51
  they put every single retailer and their mother even non retail
• 49:54
  related in these non competes. And you're sitting there
• 49:57
  thinking, wow, aren't I lucky to be getting this offer?
• 49:59
  Aren't I lucky to be starting this job?
• 50:01
  And I don't know if they're going to send this offer if I
• 50:05
  make a fuss about this, but I don't want to sign this non
• 50:08
  compete. I don't want to.
• 50:09
  Sign here. I'd be very supply apprised if
• 50:12
  an employer rescinded an offer in the face of a counter.
• 50:15
  OK. What is more common is an
• 50:18
  employer will hold firm. OK, OK, I think I asked this
• 50:22
  question to Jillian too, I said. And she probably said the same
• 50:24
  thing, yes. Situations Have you seen an
• 50:28
  offer rescinded? She's like.
• 50:29
  I've never seen that. I can see.
• 50:30
  No, you haven't seen it, that is.
• 50:31
  Everyone I don't think I've ever seen.
• 50:32
  That biggest fear, Aaron, I've. Seen that.
• 50:35
  I've seen that three times in my career and I know exactly the
• 50:38
  exact number because it stands out.
• 50:39
  I've seen it three times with a severance offer.
• 50:44
  Severance offers are usually negotiable, or if they're not
• 50:47
  negotiable, usually the worst that happens is an employer will
• 50:49
  hold firm. I've seen it three times in my
• 50:51
  career. The employer actually pulled the
• 50:53
  offer in the face of a counter offer.
• 50:54
  And then did what? And then we sued.
• 50:58
  The employees. Then the employee sued.
• 51:01
  Yeah, yeah, I think dumb. Yeah.
• 51:03
  And in one of the occasions, it was actually a pregnant employee
• 51:06
  very early in my career. And in that case, the IT was
• 51:09
  complicated by the pregnancy and the employer offered them their
• 51:13
  job back. And the employee was in a
• 51:15
  financial situation where they had no financial choice but to
• 51:18
  go back to work for the balance of their pregnancy.
• 51:19
  No. What a terrible outcome.
• 51:21
  It was terrible. And you know, in my advice in
• 51:23
  that case was if you have to, if you grind Barrett, like if you
• 51:25
  have to financially, then you have to like she was sick for
• 51:27
  months. She was 5 or 6 months pregnant.
• 51:29
  She was obvious. She's like, I can't get a job
• 51:31
  and she needed to go back to work.
• 51:33
  And I said, look, go back to work and Barrett for three
• 51:35
  months, maybe take an early medical leave if it's too
• 51:37
  stressful for you and have your baby and never talk to them
• 51:41
  again. I don't know.
• 51:42
  Did you? Listen to my Best My Bath Water
• 51:44
  episode. I did, yeah.
• 51:46
  Yeah, I do a lot of that work. Oh, you did because you told me
• 51:48
  that and you said so. For those listening, go listen
• 51:51
  to Gillian Climb these episode Alco and go listen to Beth
• 51:54
  Warner of the Mother Cuthbert Agency and Aaron and her e-mail
• 51:58
  to me said I listened to your I remember this now.
• 52:01
  I listened to your Beth Warner episode.
• 52:03
  I can't tell you how many times like this doesn't even surprise
• 52:06
  me. It was basically what you said.
• 52:07
  Yeah, I do a lot of that work. Yeah.
• 52:10
  I, I wasn't, I wasn't a feminist before I became an employment
• 52:13
  lawyer. Like I grew up in a world where
• 52:15
  I was told that I could be anything that I wanted to be and
• 52:17
  my gender wasn't a barrier to anything that I wanted to do.
• 52:20
  And then I became an employment lawyer.
• 52:23
  I was like, oh, sexism still exists.
• 52:26
  There's a lot of discrimination based on gender and pregnancy
• 52:30
  and parental status. And I was like.
• 52:31
  OK, for awhile. Yeah.
• 52:33
  No, there's, there's a lot of that, yeah.
• 52:35
  And that's for, I mean, we should do like a round table
• 52:38
  episode with like all these people get us all together so we
• 52:40
  can just like, I don't know, rant.
• 52:46
  Yeah, have a support group. Let's keep going in the employee
• 52:49
  life cycle, I guess. What comes next?
• 52:52
  Like oh so non competes we were talking about.
• 52:54
  Yes, thank you. Thank you.
• 52:55
  So non competes. So non competes are actually
• 52:58
  unlawful in Ontario except in limited circumstances like
• 53:03
  C-Suite executives or in the sale of a business.
• 53:06
  That something to watch out for. For contracts that are governed
• 53:09
  by Ontario law in BC though, in order for a non compete to be
• 53:14
  enforceable, it needs to be reasonable in duration in the
• 53:17
  scope of restrictions and the geographic boundary.
• 53:20
  And so an employee could sign something that says you can't
• 53:22
  work for, you know, any company in retail for a period of three
• 53:26
  years anywhere globally, and that's gonna be unenforceable in
• 53:29
  British Columbia. But employers will often draft
• 53:33
  things that are more narrow. And so, you know, it may say you
• 53:36
  can't work for these specific 5 competitors of ours as it
• 53:39
  relates to, you know, women's retail targeted at age 20 to 40.
• 53:43
  I've seen that one. Many more times, I'm sure, yeah.
• 53:47
  And the the more narrow it is, the more likely it is to be
• 53:50
  enforceable. But ideally, you know, when we
• 53:53
  draft them for employers, it should be only so broad as is
• 53:57
  necessary to protect the employer's interests.
• 53:59
  And so you like, there's two different drafting approaches. 1
• 54:03
  is drafted as narrow as possible to the extent that it needs to
• 54:06
  protect the employer's interests.
• 54:08
  And the other approach is to draft something so broad that it
• 54:11
  terrifies an employee, but everyone knows it's not actually
• 54:13
  enforceable. And the question is always, you
• 54:16
  know, because there's a difference between a non
• 54:18
  compete, which prohibits an employee from working for a
• 54:21
  competitor, and a non solicit, which prohibits an employee from
• 54:25
  stealing your customers. And so the question I have for
• 54:27
  employers is, will the non solicit and the confidentiality
• 54:30
  clause and the intellectual property clause, will those
• 54:33
  protect your interests? Do you need the non compete
• 54:36
  also? Right.
• 54:37
  Because people want job mobility.
• 54:39
  And, you know, unless it's a C-Suite executive, you know, if
• 54:42
  this person goes and works for your competitor, are they really
• 54:44
  going to cause you business harm?
• 54:45
  Like there's probably not working out anyways.
• 54:47
  Yeah. And so for employees, that's a
• 54:49
  way to approach that and negotiating, which is, hey,
• 54:52
  let's negotiate something that we can each honour that like we
• 54:55
  can truly agree to honor. And, you know, let's not draft
• 54:58
  something that's overly unfair and is going to prohibit me from
• 55:02
  earning a living in the future. And depending on the employer,
• 55:05
  you know, if it's a big institutional employer and
• 55:07
  you're not in the C-Suite and they don't want to talk to
• 55:10
  legal, they may not be willing to change it, but there's also
• 55:13
  unlikely that they would. There has to be a rational
• 55:15
  business reason to pursue a breach of a non compete.
• 55:19
  And if it's a smaller employer that's more nimble, you know,
• 55:21
  and is more willing to have that conversation, then perhaps it is
• 55:24
  like an aha moment of do we need this non compete, you know, is
• 55:28
  this scenario that we can compromise?
• 55:30
  And so I think it's worth asking the question like, why do you
• 55:33
  need this? What are you afraid I'm going to
• 55:34
  do? And let's try and figure out
• 55:35
  something that you know allows a respectful exit.
• 55:39
  It all comes back to like how things are worded too.
• 55:41
  Like when I think about it from my perspective as someone who
• 55:44
  kind of coaches people on like the semantics of things and just
• 55:47
  like the how do you integrate to a new company in a positive way?
• 55:50
  And that like that's more my vibe.
• 55:51
  Of course, I'm not a lawyer, but it's like that, just what you
• 55:54
  said, like just coming at it from like a hey, like I'm just
• 55:57
  protecting my future self, you know, just in case something
• 56:00
  happens and like most of your employment.
• 56:02
  Yeah. And we just employment
• 56:03
  relationships end like we are now in a culture and society
• 56:06
  where people do not stay at the same employer for their entire
• 56:09
  lives. And so just like marriage, we
• 56:12
  should be thinking about what what a respectful end looks like
• 56:16
  and what what each of our expectations are going to be.
• 56:18
  And I think that's respectful conversation to have at the
• 56:21
  front end. Yes.
• 56:22
  And like, if you were to guess, I know lawyers don't love to
• 56:26
  guess, but like if you were to guess and someone were to invest
• 56:31
  a couple $100 to work with, say yourself or port a law, how much
• 56:38
  do you think that it could like it often could save somebody in
• 56:41
  the end by doing that? Like I know there's tons of
• 56:44
  different scenarios and situations but like tell help me
• 56:46
  understand the ROI of getting this done up front.
• 56:49
  So we help, so we help employees both at the front end and at the
• 56:53
  end of the relationship. So we'll review contracts before
• 56:55
  it signed and also, you know, to severance offers at the end.
• 56:59
  I mean, it's hard. Like it's hard because I like
• 57:01
  often, often dip in, help the client, you know, and then maybe
• 57:05
  they negotiate on their own from there.
• 57:06
  And you know, I may never hear from them again.
• 57:08
  You know, ideally, ideally they're not ideally it is a long
• 57:10
  term relationship or ideally they are eventually leaving the
• 57:13
  company on their own terms. But if, if I can give them some
• 57:16
  advice that helps give them some security or helps them
• 57:19
  negotiate, you know, one or two things that are important to
• 57:22
  them, you know, then hopefully there's value there.
• 57:24
  Yeah. And then when it comes to so say
• 57:27
  in this employee lifestyle you're coming to, there's so
• 57:30
  many like things I want to talk about like bullying, harassment.
• 57:32
  We have to have another day topic coming across my desk as
• 57:37
  well, unfortunately. But say that person, say the
• 57:41
  employee themselves wants to quit.
• 57:43
  Is that a situation where you think it's really important to
• 57:46
  engage a lawyer before you say, make those big moves, say
• 57:48
  director level? Yeah.
• 57:49
  So I do talk to employees before they quit and particularly if
• 57:53
  they have signed a non compete or a non solicit and they're in
• 57:57
  a senior role and they're nervous that their employer
• 58:00
  might try to enforce the non compete or non solicit.
• 58:02
  Maybe they've seen threatening letters go out or they they know
• 58:05
  that the company has a reputation for being litigious
• 58:08
  and they want to understand, you know, and maybe they're like,
• 58:11
  you know, paramedical professional, like maybe they're
• 58:13
  arms or physio. And they do want to take all
• 58:15
  their clients with them, for example.
• 58:17
  I see it a lot in that context. Yeah.
• 58:19
  And they want to take all their clients.
• 58:21
  And so how, you know, what are the risk levels, what can they
• 58:25
  do? What can't they do?
• 58:26
  What's gonna cross the line? What's gonna inflamed the
• 58:29
  situation? You know, like I had a couple
• 58:31
  clients a couple years ago who as a group left their employer
• 58:35
  and started a competing business and tried to take all their
• 58:37
  clients with them. And, and the employer wrote a
• 58:40
  threatening letter. And we very carefully read the
• 58:44
  non compete provisions and what was in the contract.
• 58:46
  And we wrote a very respectful letter back, which was very
• 58:48
  aware of these limitations and there's no intention to breach
• 58:51
  them. And the company backed off like
• 58:53
  they weren't looking to get, they weren't looking to do like
• 58:56
  an injunction application is so expensive.
• 58:58
  Like they weren't looking to do that.
• 58:59
  They just wanted some Peace of Mind that like, the employees
• 59:02
  knew that like that they, you know, these are the things they
• 59:05
  couldn't do when the employees said, we're not gonna do any of
• 59:07
  those things, your business is safe, don't worry about it.
• 59:10
  And the former employer was like, OK, yeah, OK.
• 59:13
  I made my point, you know, and we were able to resolve that
• 59:16
  pretty quickly and cost efficiently as opposed to
• 59:19
  ignoring it. And now they're afraid they're
• 59:21
  going to an injunction application and it's ever going
• 59:23
  to cost every everybody a fortune.
• 59:25
  Yeah. So there is some cost savings
• 59:27
  to, you know, understanding, like, what is the range of
• 59:31
  things that you could do? You know, can you open a clinic
• 59:34
  across the street and not take any of your patients or clients?
• 59:38
  You know, can you maybe send a message that says, you know,
• 59:41
  hey, I'm moving, here's my new contact information and not
• 59:45
  actively solicit. Should you do that on the phone
• 59:48
  or is it OK to put that in writing and have there be
• 59:50
  evidence of that that could later bite you?
• 59:53
  Or are you, where are the restrictions completely
• 59:56
  unenforceable and you can do whatever you want.
• 59:58
  So I think that is good advice to get at the front end so that
• 1:00:01
  you can build your business, you know, towards something positive
• 1:00:04
  as opposed to, you know, or move into your new role, you know,
• 1:00:08
  excited about it rather than fighting with your old employer
• 1:00:11
  about what you did or didn't do. Yeah.
• 1:00:13
  Oh, I love that. OK, So what if somebody gets
• 1:00:16
  fired, which is something that we hear a lot?
• 1:00:19
  And so restrictive covenants may be negotiable in that situation,
• 1:00:22
  right? From a fairness perspective, is
• 1:00:24
  it fair for an employer to fire an employee, give them three
• 1:00:28
  months of severance and tell them that they can't work in the
• 1:00:30
  industry for 12 months? Is that fair?
• 1:00:34
  And you know, an employees may have, I may read their contract
• 1:00:37
  and have some anxiety around that mismatch.
• 1:00:40
  And so that might mean negotiable.
• 1:00:41
  You know, like when I send a demand letter to an employer and
• 1:00:45
  I say, hey, you only gave the employee three months of
• 1:00:48
  severance, but there's a 12 month non compete, you should
• 1:00:51
  give the employee 12 months of severance.
• 1:00:53
  You know what the employer says. Don't worry about that
• 1:00:56
  noncompete. Totally.
• 1:01:00
  That's right. We fired this person.
• 1:01:02
  Yes, go get another job. That's fine.
• 1:01:05
  So you know. Those all of that starts to
• 1:01:08
  become negotiable. Yes.
• 1:01:10
  OK. I want to ask you.
• 1:01:12
  I need to ask you this question because this has been coming up
• 1:01:14
  now. I've seemed to have like come
• 1:01:17
  into this world of like meeting incredible birthing mothers,
• 1:01:22
  parents who have, like Beth Warner, have gotten into
• 1:01:26
  situations where they are actively in human rights cases.
• 1:01:30
  They have gone through crazy atrocities in terms of like what
• 1:01:33
  has been done to them like mentally and financially,
• 1:01:36
  etcetera. I want to ask you just to
• 1:01:41
  explain the whole thing where you get wrongfully dismissed.
• 1:01:45
  There's this package that gets put in front of you and if you
• 1:01:50
  take it, you're basically signing away your rights.
• 1:01:52
  This is my plane terms to to see if I understand it.
• 1:01:55
  You're basically signing away your rights saying I can never
• 1:01:58
  press charges, I can't put in a human rights claim, blah, blah
• 1:02:02
  blah. If I take this money, and if I
• 1:02:04
  do want to go and pursue the legal stuff, then you're
• 1:02:09
  basically not signing the paper. Is that how it works?
• 1:02:12
  Yeah. So not press press charges would
• 1:02:13
  be criminal but. It is criminal.
• 1:02:17
  Sure. So what happens is, you know, an
• 1:02:21
  employer can fire someone and again, I'm speaking about mostly
• 1:02:26
  English speaking provinces in Canada and employer can
• 1:02:28
  terminate someone's employment with or without cause.
• 1:02:31
  With cause is where the employees done something really
• 1:02:34
  heinous like, you know, theft, dishonesty, assault as examples
• 1:02:38
  or very significant performance issues overtime where they've
• 1:02:41
  been warned and given feedback and time to improve.
• 1:02:44
  But short of that, we're in the without cause termination
• 1:02:47
  bucket. An employer can terminate by
• 1:02:49
  giving them the required amount of notice or severance, which as
• 1:02:52
  we talked about is governed by the Employment Standards Act,
• 1:02:54
  the common law and the contract. But complicating that is where
• 1:02:58
  there's a protected characteristic.
• 1:03:00
  So where the human rights code is triggered, at least in BC And
• 1:03:04
  and so protective characteristics in BC can be
• 1:03:06
  things like family status, um, sex, which includes pregnancy,
• 1:03:11
  disability, race, you know, a whole plethora of things.
• 1:03:14
  And so, you know, the an employee may have common law or
• 1:03:19
  statutory rights under the Employment Standards Act or
• 1:03:21
  rights under their contract, but in addition to that, they may
• 1:03:24
  have a claim of discrimination as in what I unheard from Beth's
• 1:03:28
  story is, you know, I don't know all the details, but you know,
• 1:03:32
  getting higher, disclosing your pregnant and then getting a
• 1:03:35
  withdrawal of the job offer. That's very clearly
• 1:03:37
  discrimination under the human rights code, yeah.
• 1:03:40
  For a while getting fired. Working for awhile, you know,
• 1:03:42
  through pregnancy and then making up a reason of like,
• 1:03:46
  you're not meeting performance expectations even though you've
• 1:03:48
  been here for three weeks and we're going to fire you and has
• 1:03:51
  nothing to do with your pregnancy promise.
• 1:03:52
  And obviously it does. That's discrimination under the
• 1:03:55
  Human Rights Code, which is why earlier I said it's so hard to
• 1:03:58
  fire someone who's announced their pregnancy or is coming
• 1:04:01
  back from leave because it's discrimination.
• 1:04:03
  And under the Human Rights Code, like while the remedies under
• 1:04:06
  the Employment Standards Act are quite limited and without cause
• 1:04:09
  termination and common law is based on a formula, which for
• 1:04:13
  employees who haven't been there that long can be limited
• 1:04:16
  discrimination compensation under the BC Human Rights Code
• 1:04:20
  is made whole. So an employee can file a human
• 1:04:23
  rights complaint and seek their actual wage loss, which when
• 1:04:26
  you're kind of coming and going from that leaves and it's hard
• 1:04:29
  to get a job because you're 6 months pregnant and showing, you
• 1:04:32
  know, that can increase the amount of compensation that you
• 1:04:35
  can seek from the employer. And so employees can go after
• 1:04:40
  actual wage loss as well as compensation for the injury to
• 1:04:43
  their dignity, feelings and self respect.
• 1:04:45
  Ohe. Cool.
• 1:04:46
  Now the one thing I will say, and Beth is not in British
• 1:04:48
  Columbia. I think she's in.
• 1:04:50
  Manahttan, Saskatchewan. Saskatchewan, so the law will be
• 1:04:56
  similar but slightly different and, and BC at least RBC Human
• 1:04:59
  Rights Tribunal is incredibly backlogged, which is making it
• 1:05:03
  very, very difficult to run human rights complaints.
• 1:05:05
  And so this is unfortunately conversations I'm having with
• 1:05:08
  people who are experiencing discrimination.
• 1:05:10
  Is that right? Now the guidance we're getting
• 1:05:13
  from the tribunal is that it's 18 months from the date you file
• 1:05:16
  to the date your complaint is processed for filing.
• 1:05:19
  And then it's about 5 years estimate from filing your
• 1:05:23
  complaint to a date of a hearing.
• 1:05:25
  And so your kids going to be 5 years old by the time this thing
• 1:05:27
  goes to hearing. So the good news is that it's
• 1:05:29
  not a lot of effort at the front end to file your complaint when
• 1:05:32
  you're in the thick of it. The bad news is, is that this
• 1:05:36
  delay issue is something that needs to be addressed if we're
• 1:05:39
  going to have justice and. Actually, they're like hanging
• 1:05:42
  over you. I think it needs what needs to
• 1:05:43
  be addressed. The fact that this trauma that
• 1:05:45
  has happened to if a person is studying discrimination, most
• 1:05:48
  people there's been something traumatic that has happened in
• 1:05:51
  that like that is a traumatic experience.
• 1:05:53
  And it's traumatic to have that open and ongoing for a period of
• 1:05:56
  time. And so a lot of human rights
• 1:05:58
  complaints will end in compromise.
• 1:06:00
  Right there we are. We're offered early mediation 2
• 1:06:02
  years in at this point. But there's always the option of
• 1:06:06
  like lawyer to lawyer negotiation and trying to
• 1:06:09
  resolve something, especially when it's in around that leaves
• 1:06:11
  it is often about financial compensation and financial
• 1:06:14
  security for your family, Especially in a case like this
• 1:06:17
  where you know, the breach is so obviously egregious.
• 1:06:20
  You know, an employer like that hopefully got legal advice and
• 1:06:22
  understood the cost of firing her and hopefully are willing to
• 1:06:26
  pay it for the breach. Um, though based on her
• 1:06:30
  comments, I'm assuming not yet. Um, but um, yeah, that's the
• 1:06:35
  process. So, you know, it's your question
• 1:06:37
  about do I grin and Barrett or do I deal with this, you know,
• 1:06:40
  for where it's not that egregious or not that legally
• 1:06:43
  actionable or not that obvious. Like some people will choose,
• 1:06:47
  like I don't have capacity to deal with this right now and I'm
• 1:06:50
  gonna choose to move forward to something positive.
• 1:06:53
  And some people will grin and bear it.
• 1:06:55
  And some people will put their foot down and say, you know, I'm
• 1:06:58
  going to make a point like I was wronged and I'm going to pursue
• 1:07:02
  that. And you know, hopefully you
• 1:07:04
  know, I, I would encourage an employee in that situation to
• 1:07:07
  get legal advice, understand their options, and make an
• 1:07:11
  informed choice about what they want to do.
• 1:07:13
  Yeah. And I think that was a big
• 1:07:15
  conversation with Beth was around the capacity, like I
• 1:07:17
  think capacity is a huge financial capacity, emotional,
• 1:07:20
  mental capacity, like what? What do you have?
• 1:07:24
  What do you, what do you got the like, you know the guts for
• 1:07:26
  right now or like, can you like, is life just like so chaotic?
• 1:07:29
  And you're like, I wish that I could stick it to them, but it's
• 1:07:32
  just not for me right now. And I made a big like, I think I
• 1:07:35
  teared up on that episode with Beth and I just like thanked her
• 1:07:37
  for on behalf of some really close people to me and clients
• 1:07:41
  that I've worked with. I was like thank you for doing
• 1:07:43
  this because most, I would say 90% of the people I've
• 1:07:47
  encountered, now 9599%, like a huge number of people do not
• 1:07:52
  have the capacity. That's very real.
• 1:07:55
  And I just want to empower people that whatever choice you
• 1:07:57
  decide is your choice to make. Yeah.
• 1:08:00
  And any choice you make, if it's the right choice for you, then
• 1:08:03
  it's the right choice. You know, and for some people,
• 1:08:05
  often in settlements, an employee is asked to sign.
• 1:08:09
  So you, you alluded to this question that, you know, an
• 1:08:11
  employee on termination is offered, you know, a severance
• 1:08:14
  package. The employee should get legal
• 1:08:16
  advice about it before signing if they do decide.
• 1:08:18
  You know, there's some companies in Vancouver who offer a really
• 1:08:21
  great deals, like there's like they offer fair packages, you
• 1:08:25
  know, and sometimes employees will come to me with a severance
• 1:08:27
  offer and I look at it and I say this is fair based on the common
• 1:08:31
  law or based on your contract, you know, you are not owed more
• 1:08:34
  than what they've offered you. And I do recommend that you sign
• 1:08:37
  and then the employee can sign with that Peace of Mind.
• 1:08:40
  And sometimes my advice is, oh, wow, like this is a really
• 1:08:42
  crummy offer and you should negotiate this or pursue this
• 1:08:45
  further. And so, you know, we're an
• 1:08:47
  employee does accept the offer. They are usually expected to
• 1:08:50
  sign a release which says, you know, I promise not to sue the
• 1:08:53
  employer or anyone connected to the employer.
• 1:08:55
  I'll keep confidential the amount of money that I got.
• 1:08:58
  I won't say anything bad about the employer.
• 1:09:00
  And so it's that non disparagement, the I won't say
• 1:09:02
  anything bad about the employer that some people will hesitate
• 1:09:04
  on, right? That people want to be able to
• 1:09:07
  tell their truth. And there's a lot of law and
• 1:09:10
  discussion around non disclosure agreements and particularly
• 1:09:13
  around sexual harassment and, you know, the right to silence
• 1:09:17
  or the right to tell your story. And that can also come into play
• 1:09:22
  when we're negotiating settlements in human rights, you
• 1:09:26
  know, negotiating specifically, you know, how broad is that
• 1:09:28
  confidentiality provision? And for an employee like that,
• 1:09:33
  you know, she may or may not want to sign a non disparagement
• 1:09:37
  clause. She may or may not want to sign
• 1:09:38
  a confidentiality agreement. You know, it may be more
• 1:09:41
  important to her to tell her truth than to receive the
• 1:09:44
  financial compensation. But for other employees, or
• 1:09:47
  maybe she wants both and that's also something valid to pursue.
• 1:09:50
  But for other employees, they are willing to sign the
• 1:09:53
  confidentiality and non disparagement and non disclosure
• 1:09:56
  provisions because the financial compensation is worth it that
• 1:09:59
  they they need that money for their family.
• 1:10:01
  And so again, there's a menu of options on the table, and it's
• 1:10:05
  worth you know, when. When an employee finds
• 1:10:08
  themselves in a termination situation or in a human rights
• 1:10:11
  complaint situation, it's important to get good legal
• 1:10:13
  advice, understand your options, understand, you know, what
• 1:10:16
  choice do you want to make for you.
• 1:10:18
  Wow, you're good at explaining this stuff and I just want.
• 1:10:23
  To I've had to. I just want everybody to go see,
• 1:10:25
  like, I love lawyers. I I know you guys are always,
• 1:10:28
  people always make jokes about lawyers.
• 1:10:30
  I make jokes about lawyers. I mean, but I think you guys are
• 1:10:33
  just, you do such important work and I think that you provide
• 1:10:37
  this level of empowerment that a lot of employees feel like they
• 1:10:39
  give up when they're working for somebody else.
• 1:10:41
  Where it's like, well, this company is bigger than I am.
• 1:10:43
  These people are bigger, they make more money, they have more
• 1:10:45
  money. But I don't know, there's
• 1:10:46
  something about like quote, UN quote, lawyering up and just
• 1:10:49
  having that sense of like, I will spend this couple $100.
• 1:10:53
  At least at least understand what your rights are, and if at
• 1:10:56
  the end of that couple $100 you don't want to pursue it further,
• 1:10:59
  that is also a valid choice. That's Peace of Mind, like you
• 1:11:02
  said that you said. But then you're making the
• 1:11:04
  decision like you have all the information you've exhausted.
• 1:11:07
  Like, OK, could I have gotten more?
• 1:11:08
  You don't ever be wondering like, shoot, I got fired and
• 1:11:11
  like I didn't actually seek any sort of counsel on this.
• 1:11:14
  And I will always wonder should I have gotten 6 more months paid
• 1:11:18
  with my children? Like that is huge.
• 1:11:20
  Like talk about circling back to the beginning of our discussion,
• 1:11:23
  like these can be really big life altering decisions that
• 1:11:27
  you're making. And like, you know, by wanting
• 1:11:29
  to, I was going to say like be cheap.
• 1:11:32
  It's not that because it is expensive and it's expensive
• 1:11:34
  phase of life, but I just, I don't know.
• 1:11:36
  I personally have seen it with clients, I've seen it with
• 1:11:39
  family members, where it's just the value of that Peace of Mind
• 1:11:43
  and taking that ownership and holding that power within you by
• 1:11:46
  having a team behind you of negotiators, of lawyers, of like
• 1:11:49
  friends, confidants. Like I could go on my soapbox
• 1:11:52
  for days about this. I think it's so important and
• 1:11:54
  it's such a gift. To have that and and my practice
• 1:11:57
  is, you know, we are someone's been let go and is negotiating
• 1:12:01
  their severance package, you know, either with or without a
• 1:12:03
  human rights component to it is to offer a menu of choices.
• 1:12:06
  You know that the employee can leave the console and represent
• 1:12:08
  themselves going forward. That they can hire me to send a
• 1:12:12
  letter on their letterhead and handle everything for them and
• 1:12:14
  take the stress off them. Or they can do the little
• 1:12:16
  coaching. They can negotiate, they can
• 1:12:18
  represent themselves and they can call me in, you know, if and
• 1:12:21
  when they need pick up or not. And so, you know, every employee
• 1:12:25
  is going to need something a little bit different.
• 1:12:27
  And some employee, some employees want to pursue it.
• 1:12:29
  Some employees, you know, want to negotiate for the best
• 1:12:32
  package that they can get and, you know, close it and move on.
• 1:12:35
  Some employees want to file human rights complaint or a
• 1:12:38
  claim for wrongful dismissal in court, you know, and really make
• 1:12:41
  a point or the package is so bad that they really have no choice
• 1:12:44
  but to. And some employees don't want to
• 1:12:47
  do any of that. Some employees want to sign on
• 1:12:49
  the dotted line and put it behind them and move on to, you
• 1:12:52
  know, the next exciting role. And all of those choices are
• 1:12:54
  valid. I love that.
• 1:12:56
  I think this is a perfect place to close.
• 1:12:59
  You have been so gracious with your time and I think that we've
• 1:13:02
  kind of like Encompass. Is there anything, is there any
• 1:13:04
  additional piece of this life cycle that we need to talk about
• 1:13:07
  today? Because I feel like I need to
• 1:13:08
  have you on for like rapid fire. Tell us all the stories, like
• 1:13:12
  your crazy stories. I what I always tell people at
• 1:13:16
  parties is that, you know, I'm always, I'm always surprised by
• 1:13:20
  the things that happen at work, right?
• 1:13:21
  Like we spend so much of our working life at work and it's
• 1:13:27
  such a fascinating thing, you know, the, the, the things that
• 1:13:31
  people do at work. Like what?
• 1:13:34
  Ohe yeah, that's for another day.
• 1:13:36
  What? OK, that's crazy.
• 1:13:38
  What's the what's the most like unhinged thing you've seen in
• 1:13:42
  work? The most unhinged?
• 1:13:44
  I don't know. Those ones are so identifiable,
• 1:13:47
  you know, solicitor, client privilege and all that.
• 1:13:48
  I don't know. I once saw two people in an
• 1:13:51
  office where I was on for the employer.
• 1:13:52
  I saw two people in an office like like admin staff like get
• 1:13:55
  into a physical altercation in the bathroom at work and 1 drew
• 1:13:58
  blood from the other and she got fired and then you were there.
• 1:14:02
  No, but like I advised the employer and then the the
• 1:14:04
  employee actually got fired and then hired back, which I thought
• 1:14:06
  was crazy. Like physically assaulted
• 1:14:09
  someone in the bathroom and got hired.
• 1:14:10
  Back quite unhinged, yeah. It was pretty wild.
• 1:14:15
  That's a good one, yeah. What's the most money you've
• 1:14:18
  ever seen on a subtle, like a severance agreement?
• 1:14:22
  Is that the right word? Yeah, I mean, you'll see in the
• 1:14:25
  case law, right? Like you'll see these huge
• 1:14:27
  awards. There was a Walmart decision
• 1:14:29
  from a number in Ontario a number of years ago with like a
• 1:14:32
  very, I think it was a very senior employee and a very high
• 1:14:35
  income earning position. And like she just took Walmart
• 1:14:39
  for everything she was entitled to.
• 1:14:40
  Like it was. Million.
• 1:14:42
  I don't remember the exact number, but it was it was high.
• 1:14:45
  You know, she had a huge compensation package and they
• 1:14:48
  treated her horrifically over a period of years and gaslighting
• 1:14:51
  behavior and emotions and clawing out her role.
• 1:14:54
  And, you know, sometimes this, I mean, this is the bullying,
• 1:14:56
  harassment stuff we didn't get to today.
• 1:14:58
  Yeah. But yeah, you, you litigation is
• 1:15:03
  inherently unpredictable. And sometimes you get these just
• 1:15:05
  really big decisions with these really high awards, which, you
• 1:15:09
  know, really tell a story. You know, they tell a story and
• 1:15:15
  they set a standard of expectation.
• 1:15:17
  You know, us employment lawyers, we take note of those decisions.
• 1:15:20
  And you know, when those big cases come out that frame what
• 1:15:25
  is and is not permissible, you know that one big case can
• 1:15:29
  impact the legal advice that we give to employees and employers
• 1:15:32
  going forward. That's cool.
• 1:15:35
  So by her doing that, not that again, I want to stress that you
• 1:15:38
  said whatever decision is right for you and your family is your
• 1:15:40
  decision. You don't have not everybody has
• 1:15:42
  to act as these vigilantes and like go out there and like, you
• 1:15:45
  know, Sue and like do human rights things because they feel
• 1:15:47
  like they have to on behalf of other women.
• 1:15:49
  But those who do like that is a huge the fact that she fought is
• 1:15:55
  now changing the course of may perhaps what bullying and
• 1:15:58
  harassment looks like in the workplace and like, yeah, what
• 1:16:01
  what treatment is acceptable and that like there will be huge
• 1:16:04
  repercussions. Yeah.
• 1:16:05
  I mean, my, my firm was representing an individual so
• 1:16:09
  that the law and family status NBC is, is quite restrictive or
• 1:16:12
  was quite restrictive. And at the time this client came
• 1:16:15
  to us, the, um, the law was different from what it is now.
• 1:16:19
  And she would have lost her human rights complaint under the
• 1:16:23
  old case law, even though, you know, what happened to her was
• 1:16:25
  quite wrong and she stood her ground and ran the case and
• 1:16:29
  there's a Court of Appeal decision which changed the law.
• 1:16:32
  And you know, that's a really big deal.
• 1:16:35
  And her complaint unfortunately been years and her complaint
• 1:16:38
  still hasn't gone to hearing on the merits, but the facts of her
• 1:16:42
  case changed the law and changed protection for family status
• 1:16:47
  discrimination in British Columbia, which is a huge deal.
• 1:16:50
  Beth Wagner is going to be up there.
• 1:16:51
  We're gonna see her in the Global Mail.
• 1:16:53
  I'm really excited to see that. We're going to see it.
• 1:16:55
  I know, I know it. I don't know.
• 1:16:57
  Am I allowed to say stuff like this on this?
• 1:16:58
  Podcast you are, she is Mary. I was still very, very weird
• 1:17:02
  talking about a guy. I was like nervous interviewing
• 1:17:04
  her too because I was like, I don't want to step in it.
• 1:17:06
  I don't want to like make anything wrong.
• 1:17:08
  I'm allowed to say my opinion. You are absolutely, you are not
• 1:17:10
  hurt. You can say whatever you want.
• 1:17:12
  Screw. On you're incredible thank you
• 1:17:16
  so much thank you for explaining things and such like layman's
• 1:17:20
  terms and giving giving more than an hour of free legal
• 1:17:24
  advice to those of us who. Are legal information legal
• 1:17:28
  advice? It is legal information
• 1:17:31
  disclaimer. There's my legal disclaimer at
• 1:17:33
  the very end. No, thank you so much for having
• 1:17:36
  me. I mean, I just, I want people to
• 1:17:38
  feel empowered. I want to, I want people to
• 1:17:40
  understand what their rights are in British Columbia and across
• 1:17:44
  Canada. And I want people, at the end of
• 1:17:46
  the day, I want to see a world where employers and employees
• 1:17:49
  treat each other with respect and with fairness.
• 1:17:52
  And I think that's what we should all strive for.
• 1:17:54
  I love that if people want to find you, get some advice, they
• 1:17:58
  got some advice they're needing. Or if they're maybe in a
• 1:18:02
  different province, they're like, yo, who do you know in
• 1:18:04
  Ontario? Like how can they reach out to
• 1:18:05
  you? Yeah, I know lots of employment
• 1:18:06
  lawyers across the country. Yeah, I we have a website,
• 1:18:09
  portalaw.caportalaw.ca. I'm active on LinkedIn and you
• 1:18:15
  can find it there. OK, I'll put all the links in
• 1:18:17
  the show notes. Thank you so much again for your
• 1:18:18
  time, Aaron. Thank you.
• 1:18:22
  Thank you so much for listening and since you made it this far,
• 1:18:25
  please share this episode with a fellow parent who you love,
• 1:18:28
  respect, and want to support. And while you're at it, hit me
• 1:18:32
  up on Instagram at All Figured Out.
• 1:18:34
  Andrea, I would love to meet you and hear what you are trying to
• 1:18:37
  figure out these days.