What does an employment lawyer do?
Author: Chris Forguson
An employment lawyer assists employees in understanding their legal relationship with their employer. This relationship is a contractual relationship, even if you don’t have a paper document. This contractual relationship is governed by the common law, Employment Standards legislation, Human Rights and Worker’s Safety laws. We can assist in negotiating a contract at the beginning of an employment relationship and ensuring that an employee’s contractual and statutory rights are honoured at the end of an employment relationship.
Is there a difference between employment lawyers and labour lawyers?
Typically, employment lawyers represent non-unionized employees. Unionized employees are covered by a collective agreement which is governed by the Labour Law statutes of Canada and/or various provinces. Labour lawyers typically act for unions and for management. In some situations a labour lawyer may represent an unionized employee in a dispute with his or her union. As an employment lawyer, I do not act for unionized employees or employers.
Could a Vancouver employment lawyer help me out with a problem in Alberta or are they regional?
The employment laws in all common law provinces are similar. Unless your problem has some connection with British Columbia, it is typically best to engage an lawyer in the province where you work as most remedies must be sought in the province where you work.
Is it legal to fire an employee if I have been sick for a long time?
This is a complex question. It is generally contrary to Human Rights legislation to fire someone because they are disabled. However, if there is a general restructuring of the business and the termination of your employment is not related to your absence, an employer can terminate an absent/sick employee so long as the employer complies with the laws regarding termination of employment. In circumstances where an employee has been off work for a considerable time and there is no realistic prospect of a return to work, an employer can take the position that the employment contract has been frustrated and terminate the contract on that basis. This type of termination is very fact specific and an employee facing this situation should seek counsel from an employment lawyer.
How does overtime work when I am paid an annual salary?
Unless your contract provides for overtime, overtime pay is governed by Employment Standards legislation. Generally, employees that are considered “managers” according to the Employment Standards definitions are not entitled to overtime. Just because your employer calls you a manager, doesn’t mean you are a manager. If you believe that you are entitled to overtime pay, you should ensure that you are keeping accurate track of your hours of work. Claims for overtime are typically handled through the complaint process in the Employment Standards legislation.
I've received a letter of warning does that mean I can be fired at anytime?
No. You can only be fired without notice or pay in lieu of notice for “cause”. Just because you have been written up for something, doesn’t mean that your employer has cause for dismissal the next time you do anything wrong. The initial infraction may be minor or may have been misrepresented. Typically, an employer that is legitimately dissatisfied with an employee will provide one or more written warnings to notify the employee that they are dissatisfied with the employee’s performance. The question of what amounts to cause for dismissal is very fact specific. If you have received a written warning and you are concerned about your job security, you should consider seeking advice from a qualified lawyer.
After my maternity leave my boss says my position no longer exists, is this legal?
If your job actually does not exist, your employer has a duty to return you to a reasonable alternate position. If there is no such position, your position can be terminated by providing the appropriate notice or pay in lieu of notice. If they simply fired you when you returned you may have a case for wrongful dismissal.
My boss wants to transfer me to a new location but I don't want to go, could they fire me for not going?
It depends on a number of factors including how far the new location is from your current location, whether you have moved in the past, how long you have worked in your current location and other personal factors such a family roots. Generally speaking, an employer cannot require you to move or take on a significant commute in order to keep your job but there are always exceptions.
How long can companies leave employees on probation?
Probation is a slippery concept. Most people understand probation as a period at the beginning of employment where an employer is “checking for fit” and within which the employer can terminate your job without notice or pay in lieu. Under the British Columbia Employment Standards Act, an employer must provide you with termination notice or pay in lieu after 3 months employment. You can agree in a contract to a shorter period but an attempt to impose a probation period longer than 3 months would be contrary to the Employment Standards Act.
My company is asking all employees to sign a 1 year non-compete that would not allow me to work for any other company within my field, is this legal?
It is legal to require a non-compete as a term of employment but it is difficult for an employer to enforce these restrictions. If you are already employed, an employer will have a difficult time trying to get existing employees to sign such an agreement as this would be considered a significant modification of the employment agreement. In some circumstances non-competition agreements can be enforced. Do not presume that these agreements are unenforceable. Before you sign such an agreement, you should seek legal advice.
I was in sales for X months and after a bad month my employer let me go, is this covered by employment law?
Yes, under the Employment Standards Act and the common law, an employer must provide you with notice or pay in lieu of notice of the employer wants to terminate your employment. In some circumstances, consistent failure to meet reasonable and achievable sales target can constitute just cause for dismissal without notice but generally, dissatisfaction with performance still requires that the employer provide notice of termination or pay in lieu.
Where can I find updated information about current BC employment standards?
Information including the legislation, regulations, interpretation guidelines and factsheets can be found on the internet at: Employment Standards Branch
My company is withholding our paychecks for a week as they say they are short on money, is this legal?
No, the Employment Standards Act requires that employer pay all wages owing at least twice per month.
I only work part-time, am I still entitled to over time on holidays?
Yes, part time workers are still entitled to overtime and statutory holiday pay.
Think you have a case or still have questions for an employment lawyer?
You can call Chris at 604 763-4533 or email at firstname.lastname@example.org