In the last two weeks we have seen a number of new clients who have been offered jobs and want our legal services to review the contracts.

Prior to the market crash in 2008 this was common, but after the fall of 2008, the number of these requests fell dramatically and has remained low.

The recent increase in the number of new contract reviews suggests that the market may be recovering and that hiring is starting to return. Unfortunately, we are also seeing a number of terminations, which remained high throughout February. This suggests that the marketplace may still be in transition.

While we start to move from recession to recovery, employers and employees should remain mindful that a good employment contract is often the best way to avoid disputes during the relationship and/or when it ends.

Certainly when someone is hired, we don’t want to talk about what would happen if things don’t work out. However, that approach only postpones what could be a litigious ending. Employers and employees should agree on what occurs on termination before that event occurs. This includes not only outlining what notice is owed to the employee if he/she is terminated, but also how much notice prior to resignation the employer needs should the employee choose to depart.

James Heeney

I was speaking at the Ontario Bar Association’s Annual Institute 2010 program last week. The session was entitled “Navigating the International Assignment Maze” and I was asked to speak about employment law implications. Surprisingly, there are quite a few! Although we have heard less in the last few years about employees moving for work, as the recession passes, we will likely see a resurgence in the global demand for talent, and employees will once again be moving from office to office more routinely.

Some of the most significant issues which arise with the mobile workforce involve:
(a) confirming who the actual employer is, which can be unclear when an employee is moving between related companies;
(b) determining which law applies to the employment, depending on where the employee comes from and ultimately works; and
(c) establishing the specific law which will apply in the event of a dispute.

Some of these issues are less significant when employees move between offices in the same city, but you can imagine the complexity when they move between provinces or even between countries.

Certainty can be injected into the employment relationship by confirming the above in a written employment contract. The contract can also be very useful for preventing other disputes which often occur in the context of an employment transfer. The following are just some of the issues which arise:

• Does the employee have any obligation to accept a transfer?
• What is the employer’s obligation, if any, to assist with the necessary immigration documents?
• What expenses will the employer reimburse (associated with a move), and will these same expenses be reimbursed after the assignment ends?
• If the assignment ends, does the employee have a right to return to his/her former job and/or home base?
• Will any assistance be provided to the employee to assist with the tax implications of the new jurisdiction?
• Are any special terms of employment, like incentive plans, stock option agreements, restrictive covenants, enforceable in the employee’s new jurisdiction of employment?

As you can imagine, the legal issues which can arise in the context of an employment transfer can be very complex and difficult to resolve in the absence of a written agreement. As the economy begins to turn around, we encourage those employers looking to begin transferring employees to be mindful of the above-noted issues and to consider entering into written employment agreements before the transfer occurs.

Christine Thomlinson

The passing of December 31 causes many of us to consider resolutions for the New Year. What will we do differently? How will we behave better? What will change?

As employment lawyers, if we could suggest our top 5 resolutions for employers and employees for 2010, they would be:

1. Prepare written employment contracts for every employment relationship.
The good news is that we’re beginning to see people being hired again. As lawyers, we will always tell you that the way to enhance certainty in the relationship is to ensure that everything that was discussed at the beginning finds its way onto paper.

2. When writing those employment contracts, think about post-employment restrictions.
Both employers and employees should think about whether there is a need for restrictions on what an employee does (competes/solicits) after the employment relationship ends. Now is the time to set this out – not later.

3. Continue to exercise care in the termination process.
For the most part, companies seemed mindful of engaging in sensitive terminations throughout the 2009 recession. We encourage the continuation of this practice even if the number of terminations drops in 2010.

4. Pay particular attention to issues of harassment and bullying in the workplace.
Pending legislative changes in Ontario mean that employers need to be addressing bullying and violence in the workplace. Residual stress in the workplace caused by the fallout of the recession may also mean a rise in this type of behaviour.

5. Be aware of changes to the Ontario litigation system.
Changes which come into effect on January 1, 2010 are hoped to bring better access to justice and a quicker resolution of employment matters for all.

From all of us here at RT LLP, we wish everyone a very prosperous and happy new year!

Christine M. Thomlinson