The Basics of Employment Contracts
At their core, employment contracts are legal agreements that detail the relationship between an employer and an employee. These contracts can apply to a broad range of relationships, from high-level executive positions to low-wage laborers. Though the details of employment contracts can differ depending on the responsibilities of the employee, their age, salary, and a variety of other factors, their purpose is essentially the same across the board: To protect the rights of everyone involved in the relationship. When it comes to protecting the employer , they provide important assets such as: On the other hand, employment contracts also act as a critical resource for the employee to protect themselves, including: In the case of temptation or coercion from another party, the contract remains objective documentation of the employee’s standing with their employer. Furthermore, if the employer ever claims that the employee is in violation of any standards or agreements, the contract acts as concrete proof of what exactly is expected.
When You Should Call an Employment Contract Lawyer
There are a number of circumstances in which a person should look to speak with an employment contract lawyer. Most commonly, in my experience as one who speaks with clients on a daily basis regarding employment law, people come looking for assistance after they have been terminated from their position or received a notice of their impending termination. They also seek out the assistance of an employment contract lawyer when they have been offered a severance package but do not know whether or not the offer is fair. Other situations tend to be when an employee is performing work for an employer under an oral agreement or when their written agreement is unclear.
A lawyer would typically not require the use of retainer agreements and will charge fees on the basis of an hourly rate. In most instances an employment contract lawyer will be contacted following the offer of a severance package from the employer, at which time the employee will want to have their employment contract lawyer review the agreement to ensure that it is fair and reasonable in all circumstances. This will include identifying wrongful dismissals, employment agreements in contradiction of the Ontario Employment Standards Act, or provisions which may have been waived by the employer, for example through past practice.
In other circumstances, where the employment contract has a clearly stipulated termination clause, the lawyer’s role at this point will be to redraft the agreement, upon review, in order to ensure that the employer is willing to honour his end of the contract.
The Benefits of Hiring an Employment Contract Lawyer
Here are key benefits of hiring an employment contract lawyer:
Compliance with the Law. First things first: Your employment contract must head off any problems arising from California and/or federal laws regulating the employer-employee relationship. Without an experienced employment contract attorney at your side, you’re forced to rely on yourself to comply with several state and federal laws. An employer-friendly contract can grant overriding authority to an employer- something that violates overtime and minimum wage laws. For one, an employer has the right to require you to agree in writing that you’d reimburse him for attorney’s fees should you sue him or complain to one of the government agencies about anything that you think is illegal. That’s going to raise a big red flag for your employment contract lawyer, not only because prohibiting reimbursement for attorney’s fees is deemed as a threat, but because it’s also completely unfair for you as an employee.
Protection of Rights. Truth be told, most employment contracts are drafted in a way to protect the employer. The employer has the power to enforce all terms of the contract- but what about the employee? Either he follows the boss’ command or suffer the consequences. The employer has the right to terminate his employee after an inevitably negative performance review pointing out the things he’s clearly done wrong, while the employee has no recourse against infractions that are beyond his job description or the employer’s control in the first place. A sound Employment Contract- written by a dependable employment contract lawyer- protects the employee’s rights earlier down the line, preventing ugly legal battles in the future.
More Bargaining Power. The moment you draw up a contract- with your lawyer’s help- you finally take the power back from your employer. Negotiations can be tough though, especially with unreasonable employers. You should have the confidence that you are protected in addition to obtaining a stronger foothold in the company. Should the employer suffer form a volatile temperament or simply refuses all your requests- even if they are fair and reasonable- there’s a chance that you could end up terminated without much semblance of right or reason, and the contract will be the thin line protecting you from a detrimental situation. The contracts can be blurred however, so a good employment contract lawyer can help you to amend the contract so that you can be justly compensated and even receive employment benefits such as bonuses, paid vacations, etc.
Common Issues with Employment Contracts
Despite the apparent simplicity of the employment contract, its terms have a tendency to become highly contentious. Individuals often do not know what to expect and businesses sometimes find it easier to make unfulfilled promises than stick to the letter of the contract. Disputes involving difficult businesses or temperamental employees are common, but issues arise even between long-term employees of good character.
Individuals often do not fully understand the terms set out in their contracts, believing that their managers or supervisors will uphold any promises made during the hiring process. If a dispute arises, they might seek legal counsel only to discover that the promises they received during the hiring process were not actually written into the contract. This can be a serious problem for recent hires in particular, as policies of this type are typically written to be permanent. When seeking restitution for unpaid overtime, a rookie trainer for an assembly line in New York was given a contract signed only by his supervisor that promised one and a quarter overtime in the 12-hour shifts at his disposal. The company had no record of the overtime request and the supervisor who had signed the contract disputed its validity.
This is further compounded by an individual’s tendency to accept whatever is brought up at the signing stage. Many individuals sign contracts under duress, as they are told that declining the terms would mean immediate termination. If they do not seek counsel at this stage of the transaction, they might sign a document with outdated terms that prevent them from taking advantage of the full compensation they deserve.
Another common issue involves ambiguous terms within employment contracts. Companies do not always have the responsibility to communicate information about corporate culture, goals, or acceptable business practices, so vague or incomprehensible terminology that is acceptable in the personal event may become a serious issue when the individual must work in tandem with their often-named supervisorial figure in the corporate setting. Some companies offer free lunches and numerous other perks as a matter of habit, and are known to end these provisions without notice; however, this can be classified as a breach of contract, depending on the circumstances. Abusive actions are sometimes not considered a violation of any written agreement, despite their nature—all too often, people have difficulty proving that harassment occurred.
Contract violations of all types are serious issues that cannot be resolved casually or without legal representation.
Finding the Right Employment Contract Lawyer for You
In selecting an employment contract lawyer, you want to ensure that he/she has the right qualifications. There are three main criteria to keep in mind.
1) Experience
When you seek legal counsel, you probably take note of the lawyer’s track record. It’s not a coincidence that courts and clients alike both respect lawyers with extensive experience and a successful history. Experienced employment contract lawyers know what to look for when reviewing employment contracts, and they know how to draft contracts on their clients’ behalf that are unlikely to encounter future legal problems.
Another area in which experience is essential is when dealing with the court system. If you need to pursue legal action, it’s vital to have a lawyer who knows his/her way around the system. While most employment issues can be resolved without initiating a lawsuit, some cases may be complex enough to require litigation . An experienced lawyer can argue on your behalf and work to protect your interests.
2) Expertise
For general legal issues, it may be tempting to work with a general practice lawyer. However, if you’re facing an employment contract dispute, it’s best to work with a lawyer who has specific expertise in employment contract law. Expert employment contract lawyers are familiar with the latest updates in laws, precedents, and more, enabling them to provide you with the best possible representation.
3) Client reviews
Once you’ve narrowed down a few potential lawyers, take time to read online reviews written by their past clients. Keep in mind that you should be looking for a lawyer who has mostly positive reviews and is able to maintain a high rating. If past clients have fussed about a lawyer’s unresponsiveness or demolition of their case, that’s an obvious red flag.
How Much Does a Lawyer Cost to Hire
Cost Considerations For Hiring A Lawyer For An Employment Contract Review And/Or Litigation Or Arbitration
While costs should not be the most important factor when hiring a lawyer, there is no question that the costs of hiring a lawyer to either negotiate an employment contract from the outset or to litigate or arbitrate an employment related matter are important.
There are both fixed and variable expenses associated with hiring a lawyer. Lawyers generally charge an hourly rate for the various stages of a matter. However, there are often expenses for filing documents with the Court if there is an arbitration or litigation, or for filing documents with the Ministry of Labour, and for photocopying and messenger services. In addition, there are expenses incurred for expert witnesses in court matters, which can run to tens of thousands of dollars (or more). If an action is poorly managed, there can be expenses related to filing motions for extension of time to file documents. There can be unexpected costs as well, such as where a responding party seeks an adjournment of a hearing or trial. It is not unusual for Respondents to plead poverty, when they have relatively simple portability or other assets that suggest otherwise in employment-related litigation. Overheads can include (but are not limited to) the additional expenses associated with "outside counsel" hired to assist a corporation’s in-house counsel when a corporate employee sues the corporation alleging wrongful dismissal. When larger corporations hire a Toronto employer lawyer to support in-house counsel, there is often a fee for the more senior or ‘named’ partner on the file, and a less expensive rate for an associate or paralegal to assist. These are common corporate costs of doing business and are not necessarily out of the average corporate budget.
From the employee side of things, there are many lawyers who will only take on employees in wrongful dismissal trials or hearings on a retainer basis if they have the ability to be paid a fair amount for the work they do and to be advanced their legal fees to be repaid at the conclusion of the dispute. Others will work for free or on a percentage of potential award basis but this raises significant ethical concerns at trial or hearing and, in my experience, will work to the employee’s disadvantage. This type of practise also involves costs for the employee, including the cost of sitting down with their lawyer in order to answer endless questions to prepare for the actual trial or hearing. This becomes a drain on cash flow, and can be further aggravated by the need for money to pay for, for example, expert witnesses. Most employees in this situation work full-time at their position or positions and have family and household expenditures which need to be met. Paying a lawyer to prepare for trial is not budgeted for, nor are expert witnesses. Employees under 40 years are often living paycheck to paycheck, and short-term disability benefits do not pay past 15 weeks and generally do not cover full salary and wages. Hiring a lawyer to proceed to trial requires one to do financial analysis of whether it makes sense, for example, to pay an expert witness or not. This drives the need to develop the theme "why hire an employment lawyer for a contract review" in the first place.
How to Prepare for Your Meeting with an Employment Lawyer
In the time between your initial meeting request and the consultation, you have some homework to do. To get the most out of your time with the employment contract lawyer you meet with, you will want to prepare. You will want to gather a file of information to share with your lawyer. You will also want to develop a set of questions or issues to be addressed.
Documents you can gather to share with your lawyer during the initial consultation may include:
• The written terms of your employment, such as an employment agreement or offer letter.
• Any written policies pertaining to your employment, such as a handbook or policy manual.
• Any documents related to employment compensation, such as paystubs, commission statements , and benefit material.
• Any performance evaluations.
• Any correspondence from your employer that is relevant to the issues you will be discussing at the initial meeting.
• Any documents related to the issues you will be discussing at the initial meeting, such as medical records (if applicable), communications with the company or HR, and documents related to the events giving rise to the request for a consultation.
When it comes to questions to be discussed or issues to be addressed, you may want to explore:
• How much experience the lawyer has with cases like yours.
• The lawyer’s hourly rate and fee structure (if any) for your case.
• What you can expect with regard to outcomes.
• Whether the lawyer is willing to provide you with a retainer agreement.
• Whether the lawyer will agree to assist with counseling regarding a prospective negotiation, review of health insurance or retirement benefits, and severance negotiation (if applicable).