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No matter if your company needs one or a hundred employment contracts, our Hamilton Employment Lawyers can help. We are able to both draft and advise employers on the merits and enforceability of their employment agreements. We understand that employers must protect their interests when entering into all employment relationships – and to do so, employment agreements and other employment related documentation must be accurately drafted to be understood, agreed to and enforceable.
Our experienced Hamilton Employment lawyers are knowledgeable in the applicable Ontario and Federal employment laws and can provide skilled legal counsel to employers to help protect their rights when drafting and negotiation legal employment agreements and contracts.
There’s no doubt that employment agreements and contract must be competently drafted in order to clearly establish the rights, requirements, commitments, and obligations of both employer and employee. The employment agreement must address a number of employment related issues that begin at the initial hiring to termination or separation from employment in order to minimize future conflict during the employment relationship. Agreements must be free from ambiguity and define key rights and obligations between an employer and employee from the start of their contract and throughout their working relationship.
A well drafted employment contract reduces risks of dispute and liability by defining important elements such as:
Without a written employment agreement, any dispute over the rights of the parties must be resolved either by looking for evidence of the parties’ intentions from pre-employment communications and negotiations or by applying common law principles, such as the requirement for reasonable notice of termination. This can lead to unanticipated liabilities and drawn out litigation.
Employment contracts should be written individually for each and every employee and position – and clearly set out, in an enforceable way, the respective rights and obligations of each of the workplace parties. The less “boiler plate” and the greater the detail in a written employment contract, the less likely a court will look to other evidence or the common law to determine each party’s rights and obligations.
Also, It’s important that employers draft appropriate contracts and not copy them from other websites or web pages. Time and time again we have seen employers copy contracts from the internet and – in particular American websites, which put the employer in a position of inadvertently avoiding the rights and obligations of provincial and federal employment standards.
When drafting employment contracts, employers must consider the duration (or “term”) of the employment contract, which must be drafted to be either a fixed or indefinite term. The distinction is important as there is a tremendous difference in the employer’s liability at the time the employment contract terminates. It’s important that this is defined within the context of your company’s employment contract.
What is an Indefinite term Contract? An indefinite-term employment contract creates a relationship with no fixed end point. The employment relationship lasts until terminated by one of the parties, or until it cannot be performed due to frustration. Each party must provide the other with notice prior to terminating the employment contract. Failure by the employer to provide required notice may result in damages based on the length of the employee’s employment.
What is a Fixed Term Contract? A fixed-term employment contract creates a relationship that ends on a fixed date agreed to by the parties, without the need for either party to terminate the contract (subject to some minimum standards exceptions). Absent a contractual term to the contrary, neither party is required to provide notice to the other when the contract ends. If the employer terminates employment without just cause before contract’s expiry date, damages are measured by the compensation the employee would have earned had employment continued to the end of the fixed term (unless there is a contractual provision to the contrary).
Yes, an employment contract may exist between an employer and an employee regardless of whether its terms are agreed to in written form or by way of oral agreement. Even where the parties negotiate and expressly agree to specific terms governing their employment relationship, in practice it is almost impossible to anticipate all of the duties, obligations and potential breaches that may arise between the parties. The employment contract will always contain implied terms that arise from the context of the parties’ relationship, by statute or by the common law.
Negotiating and drafting written contractual terms allows the parties to shape a working relationship that protects their interests and limits potential future disputes over the terms of employment. If the parties feel the need to change the written terms of their relationship they may be able to negotiate such changes, ensuring their legal relationship mirrors the parties’ ongoing expectations. The written employment contract can be as flexible or as rigid as the parties wish.
The alternative is leaving the terms and conditions of employment to the interpretation of a court based on any oral agreements that can be proved and the application of common law and statutory rules. This scenario may lead to unexpected obligations or liabilities.
Employment contracts are no doubt part of the hiring process, for those employers and employees involved in corporate executive, sales, software, tack, science, retail or any other profession. By understanding the clear terms of an employment contract from the outset – including legal obligations and risks – both the employer and employee will We have helped large companies, such as factory size companies, to small local businesses. For example, we have Our Hamilton employment lawyers have helped drafted employment contracts for:
The employment agreement and contracts document that we have draft normally always deal with employment position responsibility, compensation, salary, length of employment, post- employment obligations of the employee including non-solicitation, non-competition, confidentiality etc., benefits, bonus, commission, grounds for termination, without cause termination, just cause termination, and the amount of severance and benefits that an employee is entitled to should the employment relationship end. There’s no doubt that a carefully and competently crafted employment agreement helps prevents costly issues in the future.
It’s important that employers protect their intellectual property, confidential information and other assets that might be important for an employer to remain competitive. There’s no doubt that employees often move frequently between employers, so employers may wish to put in place certain measures to protect their information and assets before they are compromised, and follow up on any potential threats immediately.
By law, an employee has an implied duty of fidelity and good faith to his or her employer. An employee is expected to serve his or her employer honestly and faithfully and act in the employer’s best interest. After an employee departs, unless the employee is a fiduciary, these duties do not extend beyond termination of the employment relationship, with the exception of the continuing obligation not to misuse the employer’s confidential information and trade secrets. In order to protect the employer, restrictive covenants are used where the employer wants to expand on these common-law duties after the employment relationship ends.
Our Hamilton employment lawyers can help companies, businesses and employers anywhere in Ontario draft appropriate contracts that include restrictive covenants such as:
A confidentiality or non-disclosure – (“non-disclosure”) covenant, which typically prohibits an employee from disclosing confidential information about the employer which was learned by the employee during the course of the employment relationship.
A non-solicitation (“non-solicit”) covenant – which typically prohibits an employee from soliciting the clients, customers, employees and any others with whom the employer has had business dealings.
A non-competition (“non-compete”) covenant – which typically prohibits an employee from starting a business which is competitive to the employer or accepting work/becoming the employee of a business which is competitive to the former employer.
This is very important. Termination is the end of the employment relationship that will be initiated either by the employee or the employer (as opposed to a predetermined or fixed term contract) the termination clause is the agreement of both the employee and the employer on the steps that must be taken to terminate employment and what the employer or employee owes each other as a result of various termination possibilities. From an employer standpoint, a termination clause is essential in the employment contract or employment agreement, because it limits the liabilities that can arise from the termination scenario. Even more important, the properly drafted termination clause can limit the amount of damages paid to an employee or that an employee may recover on a termination without cause. If your termination clause found to be invalid, or not agreed to, the rules for terminating the employment contract will be determined by common law, subject to the limits set out in the applicable minimum standards legislation – exposing you to possibly extensive damages.
The problems that employers run into is that they often copy boilerplate type contracts, or reuse without giving thought of whether or not the clause is advantageous, or more importantly – enforceable. It is absolutely vital that a proper termination clause is drafted, complies with minimum standards, sets out pay in lieu of notice, and other important provisions that are clear, non-ambiguous and, enforceable.
There can be no potential problems or issues overlooked, and all nuances that could be important to both the employer and employee now or in the future should be clearly stipulated in the employment contract. Not only does this ensure a positive relationship, but it eliminates potential problems that can no doubt arise when the employment relationship ends. Contact our Hamilton employment lawyers with any questions regarding employment contracts that you might have. Call us today at 905-333-8888 or fill in a contact form and our office will get back to you right away – without delay.
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