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AN EMPLOYMENT CONTRACT CHECKLIST
us with respect to your employment with the company, and no other representations, negotiations or conditions, either verbal or written, shall be of any force or effect.” STATUTORY MINIMUMS SAVING PROVISION: “It is understood and agreed that all provisions of this agreement are subject to the minimum requirements of the ESA, such that if an employment standard as defined in the ESA provides for a greater right or benefit than any provision of this agreement, then you will be provided with your minimum entitlement under the ESA in lieu of your contractual entitlement.”
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W
hen it comes to drafting an employment agreement, what are some of the most important things for an employer to include? The following are examples of recommended terms to include in your company’s employment agreements. The language suggested is not necessarily the only acceptable language, but employers should be careful to ensure that any language used has been reviewed by legal counsel. In addition, it should be remembered that the question of what constitutes acceptable language changes from time to time and, as a result, even the most well-drafted employment agreement should be reviewed and updated on a regular basis. Proper provisions for termination of employment are also critical, but that topic is enough for its own paper and are not covered here. In no particular order, employers should consider including some or all of the following provisions in their employment agreements:
BONUS: “No bonus shall be paid after the date of notice of termination, even if you are otherwise in receipt of notice or entitled to payments in lieu of notice, except if required under the ESA, in which case any earned bonus it will be calculated on a pro-rata basis to the end of the ESA notice period only.”
COUNTERPARTS AND DIGITAL TRANSMISSION: “This Agreement may be executed in counterparts and delivered by electronically or digitally, each of which shall be deemed an original and all of which together shall constitute one and the same instrument.”
VACATION: “You will be entitled to <x> weeks of vacation with pay during each complete year of your employment, earned on a pro rata basis. The first two weeks of same constitute statutory vacation under the ESA (“statutory vacation”) and any additional vacation granted constitutes excess vacation (“excess vacation”). Your vacation will generally be taken at such times as is most convenient, considering the demands of the business of the company and your personal plans, although the company may require you to take unused CONSTRUCTIVE DISMISSAL: “In the vacation as permitted under the ESA. Although event of any fundamental changes to your you are expected to use your full vacation employment, you will be given notice of same in allotment in the calendar year in which it is accordance with and limited to the provisions of earned, you may carry forward your statutory the Employment Standards Act, 2000 (Ontario), vacation provided that you use it within 10 as amended from time to time (the “ESA”), and months of the year in which it was earned. Any any such changes will not constitute constructive unused excess vacation will automatically be dismissal.” forfeited without any entitlement to vacation pay.” TEMPORARY LAY-OFF: “If circumstances arise where the company has a temporary CONTRACT TO REMAIN BINDING shortage of work for you, you acknowledge NOTWITHSTANDING SUBSEQUENT that may be subject to a temporary lay-off in PROMOTIONS: “This agreement will remain accordance with the provisions of the ESA binding upon you notwithstanding subsequent and that any such temporary lay-off will not promotions, changes to compensation and constitute constructive dismissal.” changes in responsibilities and duties, unless both parties agree otherwise in writing.”
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Even the most welldrafted employment agreement should be reviewed and updated on a regular basis. CONFIDENTIAL INFORMATION AND INTELLECTUAL PROPERTY COVENANTS OR SIDE AGREEMENT: While too lengthy to include in this article, all employers should have confidential information and intellectual property provisions in their employment agreements. Alternatively, separate side agreements dealing with confidential information and intellectual property should be entered into by employees. ENTIRE AGREEMENT PROVISION: “By accepting this offer of employment, you agree that the terms and conditions set out herein constitute the entire agreement between
SEVERABILITY: “The various parts, paragraphs, phrases and sentences in the agreement are severable and if any paragraph, phrase, sentence or identifiable part is held to be invalid, void or unenforceable by any court, tribunal or other body or person of competent jurisdiction, this shall not affect the validity or enforceability of the remaining provisions or identifiable parts.” Confirmation of legal advice: “I have read and understood the terms of employment set out above. I have consulted the adviser of my choice or I have considered the terms of my employment set out above and have decided not to seek advice. I voluntarily accept and agree to abide by the terms of employment with the company, as set out in this agreement.” ESA poster: “Attached for your review is a copy of a document entitled “Employment Standards in Ontario”, which is required to be delivered to all employees pursuant to the provisions of the ESA.” ESA requirements: “In making this offer we are relying on your confirmation that you have completed Worker and Supervisor Health & Safety Awareness training as required under the Occupational Health & Safety Act (Ontario) or will complete same immediately upon commencing employment with the Company. Please provide us with a copy of your certificate of completion within one (1) week of commencing employment.” Catherine Coulter is an employment and privacy lawyer at Dentons Canada LLP.
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SPRING 2017 HR UPDATE 11