employment lawyer, employee, employer

When Should I Hire an Employment Lawyer?

At the core of every employment relationship is an employment contract. A legally binding agreement where an employee agrees to provide their services in exchange for compensation from an employer. This relationship is also regulated by many laws that can lead to workplace disputes, legal liabilities, and damages. 

Whether you are an employer or an employee, you might wonder if you ever need an employment lawyer to deal with workplace issues. There are many resources available to everyone in this digital age. Employees can look up their rights and basic procedures for enforcing them and employers can find a variety of simple templates to use for workplace policies and contracts. 

Is there ever a right time to consult and hire an employment lawyer to help with workplace issues? The oversimplified answer to that question is: as soon as possible. It is never too soon to determine what your legal entitlements or obligations are. However, there are telltale signs before, during, and at the end of an employment relationship that might warrant hiring an employment lawyer to assist.  

The article below will answer these questions and explain how hiring an employment lawyer can be a worthwhile expense. 

Before the Employment Relationship Begins

Contracts and policies can be complex and result in serious legal consequences for both employees and employers. Employees need to understand the contracts or policies they are being bound by. Employers need to understand their workplace legal obligations and ensure their work-related documents minimize their legal risks. 

The most common example is the written employment contract. Many employers underestimate the value of a well-drafted and enforceable employment contract. Many employees make the mistake of signing an employment contract that might impose obligations on them or unfavorable terms. 

Hiring an employment lawyer to assist with reviewing and drafting employment documents before an employment relationship starts could limit misunderstandings and uncertainty in the working relationship. This can prevent or minimize the risk of workplace disputes and costly lawsuits. 

An employment lawyer can also help employees with Human Rights claims against prospective employers if they feel an employer discriminated against them in the hiring process in violation of provincial or federal Human Rights legislation. Employers can benefit from an employment lawyer’s legal advice about how to structure and conduct interviews to limit their legal risks.

These are only some examples of situations where proactively hiring an employment lawyer might make sense before an employment relationship even starts. However, many issues can arise during an employment relationship that could require an employment lawyer’s assistance.

During an Employment Relationship 

There are many issues that can arise once an employment relationship arises, including the following: 

  • Workplace bullying and harassment;
  • Workplace safety issues and employee injuries;
  • Workplace Human Rights violations;
  • Non-compliance with minimal employment standards;
  • Financial difficulties and layoffs; and
  • Changes or breaches of employment contracts.

These issues are typically not as straightforward as they seem. There are a variety of legal obligations both employees and employers have that are not explicit. These can be in writing under the contract, a requirement of a statute, or even an implied term of employment. 

Ignorance of the law is not a defense against violating it. Courts and other Tribunals in Ontario have a higher expectation for employers to inform themselves of the law and comply with them. Depending on the facts, how an employee or an employer conducts themselves and what steps they take during the employment relationship could hurt their ability to resolve a workplace problem in their favour. 

If an employee or employer is considering a course of action, wants to address a workplace issue as prudently as possible, or is part of a work-related legal process, it is time to consult and hire an employment lawyer. This can help both sides of the working relationship determine what their risks, obligations, and next steps in their unique circumstances should be. 

In many cases, a workplace issue that occurs during the employment relationship results in its end. Termination of employment is the most common time when employers and employees hire employment lawyers. 

When the Employment Relationship Ends 

There are many legitimate reasons why an employment relationship can end. Legally speaking, an employee can provide an employer with written notice of resignation and the employer can accept that resignation. However, not all terminations of employment are voluntary

In Ontario, where an employer seeks to terminate an employee without cause, they must either provide an employee working notice or severance pay in lieu. That required notice will generally include an employee’s minimum entitlements under the Employment Standards Act, 2000 (the “ESA”) or the Canada Labour Code (the “CLC”), where applicable. 

Where an employee’s written contract does not contain an enforceable termination provision limiting their severance entitlements, they may be able to sue an employer for wrongful dismissal. Based on a variety of factors like an employee’s age, years of service, and the state of the economy, a Court could award an employee up to twenty-four (24) months of severance pay. 

If an employer tries to change an employee’s fundamental terms of employment without an employee’s consent, condones a toxic work environment, or otherwise tries to force an employee to resign, the employee can sue them for constructive dismissal and seek severance. This can even include situations where an employer temporarily lays off an employee without the express contractual right to do so. 

An employer can also terminate employees for a cause to deny them some or all their severance entitlements. However, alleging cause for termination requires a high threshold of employee wrongdoing, appropriate evidence and investigation, and a consideration of the employee’s unique circumstances with the employer. Alleging cause when an employer should know they reasonably did not have cause commonly results in decision-makers awarding the employee their severance entitlements and additional damages. 

The motivating reasons and manner of termination can also result in an employer being able to sue their employer for other damages. For example, if the termination was at least motivated by an employee’s disability or trying to enforce their Human Rights, an employee has the option of seeking additional Human Rights damages. 

Finally, federally regulated employees subject to the CLC may be able to bring an Unjust Dismissal complaint against their employer, instead of going through civil court to sue for their entitlements. Unlike civil courts, federal employees can seek and may be awarded reinstatement of their employment with back pay and other damages. 

As described above, terminating an employee can be complicated even if it seems straightforward. Where disputes remain between employers and employees following termination, it could escalate to expensive legal proceedings. 

There is arguably no better time to speak with an employment lawyer than a termination of employment. Employers and employees alike can benefit from proactive legal advice about their entitlements and obligations from a termination. 

An employment lawyer can help either side of an employment relationship resolve their dispute through negotiation or mediation. If push comes to shove, an employment lawyer is best equipped to help with navigating complex legal proceedings and achieving the desired result. 

Navigating these legal processes alone can be stressful, but result in a decision-maker dismissing an employee’s claim or making a significant damages and cost award against an employer that could have been avoided with an employment lawyer’s help. 

Is It Worth It to Hire an Employment Lawyer? 

The cost-benefit of hiring an employment lawyer will depend on the unique circumstances of a case. A simple consultation can be all an employee or employer needs at a specific stage. In other circumstances, hiring an employment lawyer to provide independent legal advice, or to assist with a legal proceeding is the cheaper alternative. 

In many negotiations, an employment lawyer can help their client negotiate for their legal entitlements and ask for a contribution to the legal fees an employee incurred to the date of settlement. In Ontario, a successful party can also seek some or most of their legal costs in addition to their damages award. 

Some employment lawyers can also help employees seek monetary damages on a contingency basis to minimize the immediate cost to an employee. It is under these retainers that an employment lawyer can take a percentage of whatever damages they secure for an employee pursuant to a settlement or in a legal proceeding. 

From the start to the end of an employment relationship, employers can benefit from minimizing their legal risks and exposure to significant damages by hiring an employment lawyer. For example, asking a lawyer to draft or update an employer’s employment agreements could be the difference between owing an employee no more than the bare minimum severance under applicable employment legislation or twenty-four (24) months’ worth of an employee’s compensation. 

Conclusion

There is no wrong time to consult with and hire an employment lawyer. There are many situations before, during, and after the end of an employment relationship that hiring an employment lawyer can be helpful. Depending on an employee or employer’s unique circumstances, an employment lawyer may be worth their weight in gold!  

Employment lawyers are experienced in understanding workplace disputes and knowing how to respond and address issues as they arise.  Whether an employer or an employee, receiving advice from an employment lawyer can help you protect your rights, limit your liabilities, and achieve your desired resolution.  

Contact Us 

If you are an employee or an employer with questions about your workplace rights, obligations or legal disputes, an experienced employment lawyer at Achkar Law can help. 

Contact us by phone toll-free at 1 (800) 771-7882  or email us at  [email protected], and we will be happy to assist. 

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