Slashdot Mirror
Dealing w/ Draconian Severance Contracts?
outOfWork asks: "I've just been recently announced that I was getting laid off from yet another dot-bomb company. I have received my papers and they are simply dragonian! I understand the need not to disclose any information on the company I was with (that's only natural; I have also signed a similar paper when I started working there anyways), however the papers they are requesting me to sign do include such terms as not being to sue (should I require to). I thought suing someone or a company was a fundamental freedom that we enjoyed here in Canada. If I do not sign these papers, they do mention that I will not be entitled to my severence's package. I'm fairly certain that several companies do these sorts of things, however do they have the right to do this? This company has had a bad reputation when it comes to how HR deals with certain issues and I'm wondering if they might be trying to pull a fast one on us. With the market being what it is, I could sure use that severence's package. Your input would be very welcome."
This is pretty standard fare. Not fair, maybe.
Take those papers straight to the labour relations board. They stand up for your rights for free (free council and such) and will make sure you get everything you deserve. That's how it works in BC, anyways.
Just the threat of a lawsuit and publicity is enough to make many companies 'change' their mind about specific issues. They add these clauses and figure most people don't even bother to read them much less be willing to fight it.
errr....umm...*whooosh* *whoosh* Is this thing on ?
..If only there where a group of people skilled in the way of law you could ask this question to...
The Kruger Dunning explains most post on
Here's the best I can offer: Go See A Lawyer.
Hmmm. Your ideas are intriguing to me and I wish to subscribe to your newsletter.
Quit.
Err... wait, too late for that. Nevermind.
There are plenty of Canadiasian Pro Bonos out there that can help. Even a small investment on your part (1 hour in fees) can save you MUCH grief later. COVER YOUR ASS _BEFORE_ you sign anything!
If we don't fight for ourselves no one will.
Be pragmatic.
I don't support crap like this, but ask yourself a few questions first. Do you believe you have a need or cause to sue the company? Laying you off isn't generally a cause.
Is the severance package more than is required by law? check your provincial, or federal labour code (certain companies, Banks for instance, have to meet only federal labour code.)
If the severence package is more than you would normally be entitled to when layed off, and does NOT include any further requirements as to confidentiality, non-compete etc more than your initial contract then you may as well sign it.
On the other hand, if the non-compete/confidential information clauses are more significant than what you signed when you got your employement you probably should NOT sign such an agreement.
This is getting to be standard operating procedure. In an effort to avoid future legal action they force you to sign. While IANAL, this has been talked about in many places in the US. Most of it is legal, except where asking you to do something illegal.
Your choice is to take the money or plan to win it in court. If you do not have a court case now, take the money and run. If it really is a dot bomb, what will you get in court, your cubicle?
Cut your losses and read your original contract you had with them: does it say that you are entitled to any benefits or some kind of extra-long notice before being fired?
That's the important thing--if they are firing you before your original contract says they can (and making you leave before then) then you get whatever the contract says you get. usually it's in the form of pay that you would've made if you had worked there for the length of the notice.
Otherwise, it's just a simple matter of whatever the labour laws in the province you work say is the minimum notice they have to give you.
Don't sign the goddamn papers, and go find another job and quit whining here. Two weeks, dude. That's all anyone is required by law to give you in BC, for example.
"Draconian." Give me a break. It's not draconian if you don't sign it, right?
And if you want the severance--too bad. They're dangling a carrot in front of your nose. Bite it and you get to find out it's laced with something you knew was there to begin with. Boo hoo.
You don't have to worry about unions/labour boards or whatever , but the first thing I would do is arrange a meeting with all of my co-workers/affected employees.
Stick together and tell them to shove it. In my experience most of these tactics are bluff and usually not worth the paper they are written on - if you enter into an agreement under duress the agreement can be nullified. This is basically a threat - it may be common practise and give some business types a hard-on , but you don't have to cop it.
however,
It seems to me that if you are *not* already entitled to such a severance package, that they are, in essence,
making you a settlement offer
which you may or may not choose to accept.
However,
if you were already entitled to the package, and they suddently would not give it to you without this additional condition,
then you could possibly, at a future date, argue during the suit that you were forced to agree to the additional condition while under some sort of duress,
in which case the document may be held to be invalid. But this is risky.
Maybe instead of the collective *cough* wisdom of Slashdot, might I suggest that
you see a real lawyer instead?
When you accept the money you fraudulently signed for.
10 PRINT CHR$(205.5+RND(1)); : GOTO 10
Luckily you're in Canada, where the layoff isn't such a bad thing if you're prepared. Some advice as a survivor (or lottery winner if you look at it that way).
1) Weigh the severance. How long could you coast on what they're giving you before you have to apply for UI?
2) Apply for UI right away (In Canada). You'll be entitled to at least 51% of your previous salary, and there are other benefits like education bonuses and stuff.
3) If you really are going to file a lawsuit, review why. If it's just because you're mad think again. It may end up costing you more than you ever win.
4) Those disclosure agreements are nearly impossible to enforce because they usually do step well beyond the laws they are built around.
Luck favors the prepared, darling.
Here in the U.S. such an agreement probably wouldn't be legally enforcable. I've known of several companies which included the covenant not to sue in their severance agreements, but the courts threw it out. I think it's mostly there as a red herring - getting the court to rule on it is just an extra step you're forced to go through. And it probably has some intimidation value - people who think they've waived their right to sue are less likely to try. But as always, check with a lawyer.
sue them for the right to your severence package without having to sign away your right to sue. hehe.
Were you promised the severance package at hiring time?
You can't sign away your right to sue. Sign it, then sue till your heart is content....
Opinionated Law Student Strikes Again!
Is your severance package generous? That is, is it more than two weeks' pay? In any jurisdiction in Canada, you're entitled to two weeks' pay or two weeks' notice when being terminated without cause or laid off. They can't deny you that, end of story. Even if they go bankrupt, the principals of the company are personally responsible for two weeks' pay (if you don't get notice instead).
Now, IANAL.
If you sign away your right to sue, it's gone. You have entered into a binding contract; contract law in Canada is pretty straightforward. The questions become: is the severance package attractive enough? Will I regret signing away my ability to sue?
The third question is "do I want to burn my bridge?" If you refuse to sign, the odds increase that you won't get a good reference for future work, and tech work is harder and harder to find in Canada since the dot-bomb.
Were it me in your shoes and they were offering me (say) a month's pay, I'd sign, ask for a written reference, and start looking for work. Of course, I'd also bitch and moan about their ridiculous terms to anyone who'd listen, but that doesn't cost me anything.
www.kitchengeek.com -- Nosh for
These provisions are in no way unusual, they are boiler plate. And yes, they have the right. You do not have to sign, it's optional. Your severance pay is a courtesy, and they aren't required to pay you any. So if you want your severance pay, sign your papers. You're not going to get it if you don't. Your only reason to not sign these papers is if you believe you have a legitimate cause for legal action against this company.
C//
You didn't only get laid off, you're off and with time to get laid.
You never know what you can contract that way...
Should invading one's peaceful neighbours be opposed, or rewarded with trade deals?
I wish my company offered me dragons as part of the severance package...
10 PRINT CHR$(205.5+RND(1)); : GOTO 10
Nah, he meant Dragonian - they're dragging him out and he's gone.
When you take your next job, learn from this. The time for negotiating a severance package is on the way in! A severance package is part of your total compensation, just like vacation, profit sharing, etc.
Get it in writing.
While I agree with you, it can still be useful to get others' experiences in similar situations, regardless of whether or not they're lawyers.
You say that they want you to sign something saying you won't sue them before they'll give you your severance pay. Well, turn it around: make it clear to them that, since you'll have nothing better to do with your time, you'll go sue-crazy if they don't give you your severence. You'll file separate suits for each percieved wrong they've ever done you, and you'll represent yourself. Their $500/hour lawyers will be wasting their time against your own out-of-work self. If necessary, you'll make a real stink about it, complete with media interviews, picketing, letters to their remaining clients, whatever.
If they're so freaked out by the possibility of you suing them, it's a perfect weapon to use against them.
Of course, you shouldn't necessarily expect a glowing recommendation from them, but they'll probably be to scared to actually write anything other than, ``He worked here.''
Remember, all they've got against you at this point is that severance package. You are under no obligation to sign anything new, and they're still obliged to give you that severance package (assuming it's in your contract or otherwise has already been promised to you). I really doubt they want to go to court over it, and you've got every reason to do so. The ball's in your...court.
Good luck,
b&
All but God can prove this sentence true.
A year and a half ago, my dot.bomb went under, and they gave us a pretty egregious agreement to sign. I signed it and turned it in, because I had not only severance (really, paying out of my vacation) but also several thousand dollars in expenses (training classes I'd put on my credit card).
However, upon further research and advice from others who had done this before, it turned out that I could have instead filed with the California Labor Board, and gotten not only the severance and expenses, but penalties if they were not paid in a timely fashion.
So, if I'd done some research, and been willing to go without the checks for a few extra weeks (or maybe a few months), I might have actually made more money not signing the agreement
In the end, though, the one-sided terms made the agreement a null contract; I was getting nothing (that I was not already entitled to by law), the company was getting something, and a valid contract requires that both parties actually get something from the other. I don't feel bound by the agreement (in areas like confidentiality, not talking trash, etc. -- though I don't have any reason to violate them either), and don't have any reason to test the more expensive clauses (not suing).
The real point here is, if you don't want to sign for some reason, look into your local labor laws. In California, the process for filing is (apparently) fairly simple, and the process of finding against the company is straightforward.
There are usually local organizations, usually not-for-profits, which can advise you of your rights and the law. Look for them via Google, if you can't find someone to give you a direct reference.
Good luck!
Take the damn severence package. I don't know what your family situation is like but put pride WAY after keeping food in your kids' mouths. Hell, especially if you don't have beef with them besides the fact that they went under, what do you care if you lose your right to sue them?
I for one put bills/food/housing before my sense of feeling hunky-dory.
Finally, math books without any of that base 6 crap in them.
When a co-worker was layed off from our rather small company, he refused the deal, much to the consternation of the HR director. The sticking point for him was the non-compete clause. He decided it was foolish to rule out employment from a competitor for a couple weeks worth of pay. Here in my state, the employer isn't required to pay you for saved-up-vacation when you leave, nor any kind of severance, so the difference between what they have to do (pay you for the time you worked) and what they are offering could be quite substantial.
A second cow-worker told me his former boss had threatened to withold the last paycheck unless he signed the papers, which would have been illegal. So he called the guys bluff saying "Keep it, I've already signed everything I'm going to sign back when I was hired." The boss caved and handed him his money.
If you are thinking of not taking the deal, you could try editing the severance agreement yourself and deleting the objectionable parts before signing it as a counter-offer.
Don't moderate flamebait as Troll. Know the difference or you will be Meta-moderated.
I know that a lot of people won't believe this, but not everyone works as an 'at will' employee with zero recourse. Negotiation is part of the deal. It took me quite a while to figure that out, and I'm always learning more.
When you leave a decent position where you have seniority, you're potentially giving up a lot. You need to negotiate vacation, severance, option-buy-back on pre-IPO companies, extended option maturation (do they expire 30 days after you're laid off?) and anything else that is important to you.
This is most important with start-ups because 90% of them fail. Even fewer actually IPO. What is your exit strategy? As an early investor, how do you attain 'liquidity'? Don't be afraid to ask that question up-front - your manager is. If it doesn't IPO for 10 years, how do you cash in on your shares? Because when you leave, they may not pay you anything for your shares.
You need a contract!
Once the product is designed and built, they may decide that they no longer need as many engineers and instead should concentrate on sales and marketing. Uh, okay - but they'd better buy your shares back for what they've been telling people they are now worth. They also need to pay you that severance you negotiated up front.
If they tell you 'sign or else', consider that the deal might not be as good as one where the terms are actually negotiated. Terminate at any time without reason?
In general, you need good career management skills (and a great career - slackers need not apply) to pull this off. Do any schools teach that? Any recommendations for good books?
A constitutional ammendment to the effect that "Any agreement that requires you to surrender the rights enumerated in this document shall be considered valid, in whole or in part, in a court of law."
I'm trying to teach myself to set people on fire with my mind... Is it hot in here?
Copied text from Manitoba labour (note: this is NOT copies of the regulations per say, but rather their booklet. In and of itself it has no legal standing.. blah blah blah...) [it is supposed to represent the labour code though...]
Employers who intend to terminate the employment of
50 or more employees within a period of 4 weeks must
provide written notice to the Minister of Labour, any
applicable union, and to the affected employees as follows:
NUMBER OF EMPLOYEES WEEKS OF NOTICE REQUIRED
50 - 100 10
101 - 299 14
300+ 18
If the required notice is not provided, the employer must
pay wages equivalent to the weeks of notice listed above.
If it is less than 50 employees then it is 1 pay period.
Regardless of what you sign or do not sign, you are entitled to a severance package that amounts to approximately one week's pay for each full year of working for that company. This is only an approximation, but you can check your province's labour standards act for specifics. If the company witholds the severance package that you are legally entitled to then they are accountable directly to the provincial government for that act.
Further, and again, regadless of whether or not you sign the paper, you will not give up any of your rights with regards to the regional labour standards or human rights acts. Violation of those rights is covered under the regional Criminal Code, and in Canada you cannot waive those rights. Go ahead and sign it -- any legal rights you already had cannot be waived by your signature.
File under 'M' for 'Manic ranting'
Slashdot is hardly a place where Canadian Labour Attorneys hang out - it was said many times above - go talk to your provincial LRB
You seem to be getting a lot of bad advice because Canadian Law != US Law
Ie/ depending on the province, you are *entitled* to a severance package, despite what the posters above say
Robots are everywhere, and they eat old people's medicine for fuel.
...tell Cliff. This is the second "I need legal advice" Ask Slashdot this week!
I have received my papers and they are simply dragonian!
Thou require'th a knight to slay these beasts of oppression.
In Soviet America the banks rob you!
Last December, I burned out, went on long time disability with my corporate insurance package, and three weeks later, kaboom! Get called in a meeting, where they tell me I'm no longer part of the company's plan.
They tried to have me sign a bunch of papers, which of course, I did not want to sign. Said I had to think it over. They even tried to pressure me into signing. I took them to a lawyer specialized in labor issues. He said I should just tell them to shove it. Legally, when on sick leave, you cannot be fired. So I decided to run with it, lodged a complaint with the labor board in Quebec. Real easy process to start.
Within days, I was contacted by one of their lawyers, saying I had done the right thing. Within a month, I had gone to mediation with my ex employer, got a very fat check out of it, a letter of reference, and a contact person at the company that will by law confirm whatever was written in the letter.
Lesson here: TALK TO A LAWYER.
Lesson 2: Get in touch with the labor board in your province. They are there to protect the WORKERS. They will side with you if you have a cause, or tell you up front you're wasting their time and yours.
'nuff said. Hope things will work out good for you.
Marriage is considered capital punishment for the theft of a goat in some third world countries...
Most of what you are describing is illegal in the US, which tends to offer less legal protection than most countries.
The fact is that you need to see a lawyer. Your employer is trying to bully you, and there is no way you should let them take advantage of you.
You have to decide whether the deal is worth it to you. If you don't plan on sueing and if the rest of the conditions don't prohibit you from doing something you might reasonably want to do, why not agree?
You can simply strike out the clause about not sueing and initial by the strikeout. Then sign and turn in. Especially if they don't check it carefully, i.e. if you turn it in to someone who is not a lawyer, it may not be noticed. What you are doing is in effect making a counteroffer. If they give you the money, it amounts to acceptance and the deal is done. If they catch it - you're just back to where you are now.
Having been caught before by contracts which seemed benign when signed, I cannot recommend enough that you get paid legal help. If this bothers you (and I guess it does), pay whatever it costs to get it reviewed by a competent Canadian lawyer. In the chance that later you have reason to sue, you won't regret it.
Simplistic but imagine the two scenarios:
1. You sign on the line and take the money, but you feel you've agreed to something that is wrong.
2. You refuse to sign and get nothing.
Which one will let you sleep better? Do that.
Seriously, just go with your gut instinct. Me, I'd refuse to sign, because it's the principle of it. But I don't have a family to support. Five years from now, it's quite possible that I'd sign and take the cash.
Reading the comments posted so far, I notice that the usual "lawyers are evil" cries have been dropped in favour of advising you to sue. Funny eh? I guess lawyers are only bad when they're taking your mp3s away...
If you are in Ontario, take a look at http://www.gov.on.ca/LAB/es/ese.htm
I'm sure the other provinces have some similar.
I don't know what city you are in but you need to hire a competant atourney to deal with this bullshit.
Never but never sign these agreements. The company probably never had a trade secret or even an idea that was worth anything and when you sign you just leave yourself wide open to accusations.
Several years ago I had an employer ask me to sign such a form and stated it was a "condition of employment". I replied that it was a "condition of employment" that I DO NOT sign agreements like this. I won. I guess they figured that since I was the only one they had on staff who knew how to develop the software they needed that they better back down.
The best advice I ever heard was from the fellow (now retired) who developed one the the best contouring packages in the world. It was the one that Amoco used. Yup - it was good. His point is that he doesn't want to be privy to other people's confidential information.
As he said: In the first place it probably isn't all that great and I'll probably come up with a better solution anyways. But, if I'm privy to what they claim they disclosed to me, then the door is open for them to claim I stole their ideas. In the second place, if what they have is really so great, then I can't use it anyway.
I think his reasoning is very clear. If you think it is confidential then I don't wnat to know about it. Sorry - just keep it to yourself!
-----------
Think about those confidentiality agreements employees are so willing to sign. It can limit their employment opportunities down the track. I am an employer. No way I'm going to get involved with an IP exposure if I can avoid it. So generally I hire consultant who are not encumbered.
Those agreements do not benefit the employee in any way and are pretty useless from the companys' standpoint as well. If someone IS interested in stealing trade secrets you can be sure that a little agreement is not even going to slow them down. You see, your ex employer has to PROVE that YOU DID IT. That can be nigh on impossible. But the litigation is real and it can cost you 1000's to defend yourself.
Just say NO!
Was it Verity Canada?
Here are Ontario's provisions:
Jason PollockA non-disclosure/non-compete agreement can not be construed as making it impossible for you to work "in your chosen profession." Example: a doctor leaves a pratice and signs a non-compete agreement: he/she shouldn't open a clinic across the street from his/her previous employer but he/she is only trained to pratice a particular type of medicine. The agreement cannot keep him/her from working in his/her specialty or force him/her to relocate.
This brings up the next step: You would need to disclose the existence of the agreement to anyone hiring you since they would potentially also be liable however; the further their business is from that of your about to be previous employer would make any attempt to sue unlikely to win. Note: law suits are about who has the best lawyer so a big company might not be a bad idea if you can go that route.
Final point: this is a civil matter; not criminal. Your previous employer has to bring suit against you and/or your next employer to make it stick. If you go to work for their direct competitor doing essentially the same work and almost invariably using your knowledge of their product against them, they can undoubtedly make it stick. Go to work for somebody who does something different (albeit, using software) and chances are they can't make it stick.
Actually, that wasn't final... you can also see what happens if you make a counter proposal that just says you won't work for a competitor. It might work and, if not, it makes your case stronger if you go to somebody and get sued.
BTW, IANAL and IANAC (I am not a Cannuck)
They that can give up essential liberty to obtain a little temporary safety deserve neither safety nor liberty.
Ben
A lot of companies attempt this sort of thing. One reader suggested that if your dot bomb company is going down the tubes, take the money and run. He's got a pretty good point. There probably won't be anything left to sue them for, unless they were up to some Enron-style activities.
In the United States, there must be an equitable exchange in such a contract for it to be valid. Suppose they get you to agree not to sue them. Then, a while after your departure, they renege on paying you severance as they agreed. Presumably, because you signed that paper you can't sue them. But the truth is, if they don't stand by their part of the agreement, then the contract is null and void. You can sue the crap out of them and collect triple damages.
One of my favorites is the "non-compete" clause, where you agree not to compete against your former company. This never stands in court, because they can't force you not to earn a living. When another company hires you for your skills, technically that means you could be competing against your old company.
Again, in the US, if the compensation you receive is not considered equitable to the conditions that you are being asked to accept, any such contract is null and void. If the severance is good -- take it! But if you have any doubts, maybe you should seek counsel. I live in Massachusetts, and the Attorney General's office is very aggressive in pursuing companies that pull these sort of things. The office offers legal advice and free counsel for people who want to find out if they have a complaint. Maybe your province in Canada offers something similar?
I wish you the best of luck.
Whew! This water sure is cold!
It's already that way. You can't contract yourself into slavery, or sign a document authorizing someone to shoot you. No amendment required.
This is what you need to do:
1. Sign it.
2. Collect whatever you can get them to pay you. If they pay by check, run to the freaking bank and cash that check ASAP.
3. Run like hell and get on with your life.
I was a hair short from being in your position. The day I was going to be told I was in the layoffs list I went to interview elsewhere. I went back to my office not knowing if I still had a job. The CEO told me she almost canned me but decided to leave me stay at the last second as long as I would take over the work of two expensive consultants. I said suuuure. 48 hours later I had my offer elsewhere, gave them 1-week notice (first time ever I give less than 2) and ran like hell.
I did not even sign a consultant agreement. Instead I told them that since I was a "nice guy" I was going to stay as a part-time employee. Instead of a $85/hour consultant I volunteered to be a $30/hr part time employee (they laid off 20% of all employees, and those of us that survived got cut our salaries by 20%). Why? Because the company is going down and they are going to screw all consultants, but they do not mess with payroll. I would rather get paid $30 now than have the $84/hr negotiated down to $20, and that is after 2-3 months of threatening to sue for non-payment.
Just take the money and run. Get on with your life. All that talk about the though job market is B.S. The same day I interviewed for my present job one of my friends got laid off at noon. At 2 PM he went to interview elsewhere. His offer arrived two days later, 4 hours ahead of mine.
Pedro
----
The Insomniac Coder
the word is "draconian", which means "severe" or "unusually harsh".
sheesh, i don't mean to nitpick but there are few simpler ways to come off as less-than-brilliant than to misuse "big words".
look them up before you use them. thanks. (checks own spelling)
If it's a dot-bomb, you better get what you can while you can.
This totally sounds like an urban myth;
any lawyers to confirm?
Considered harmful.
I'm not sure about Canadian law, but in the states, there are two classes of employment law. Some states allow for employment at will and others construe all employment as being contract based. In the former case, the employer can let you the employee go at any time without rason with no further obligation. In the latter case employee termination must be with cause (as I understand it - and IANAL). In either case, the employee may sue the employer on various grounds usually relating to wrongful termination. Only in the latter case would such suits have even a remote chance of having a successful outcome. Severence packages are typically offered in exchange for an agreement not to sue the employer or the company officers. This is simple contract law. Consideration is being provided in exchange for agreed behaviors/actions/inactions. In some cases, however, these agreements are not enforcable because, for example in the case of Enron or Worldcom the companies enguaged in (potentially) criminal fraud directly affecting the matters (your salary and continued employment) the severence contract would impact.
Again, IANAL.
--CTH
--Got Lists? | Top 95 Star Wars Line
Dot Bombs are built and then dismembered by VC firms which is a fancy way of saying lawyers. That's what lawyers do - they make harsh sounding documents to protect their interests forever and ever under all circumstances against any all things in the universe.
But companies that are bankrupt or soon to be don't have the time or the interest in suing ex employees unless said ex employees have stolen actual money or cheated or defrauded them.
I wouldn't worry.
The typical dot-bomb is not to be more than 5 years old, usually less. (Otherwise it's some other category of failed computer company :-) So if Ontario's rule is that you had to be there five years, you probably weren't. So take the money and run.
Bill Stewart
New Fast-Compression-only CPR http://preview.tinyurl.com/dy575ks
Bill Stewart
New Fast-Compression-only CPR http://preview.tinyurl.com/dy575ks
You can sign that agreement and get the package, and STILL SUE later, as often those agreements are bogus if you later find out that illegal things were happening. There's also the option of signing a modified agreement. Strike out the clauses you don't agree with and have the company's rep initial your changes. If you really feel like it, check with a lawyer - maybe you could sue if they don't give you the severance package. A waiver on legal liability in return for a package might not be legal...
--- http://foo.ca
Let me preface this by saying that I am not a lawyer and this post does not constitute legal advice.
I am Canadian and 5 1/2 years ago I went through what you are going through . The most important piece of advice that I can give you is SEE A LAWYER. If you don't know one, get a reference to a good lawyer from friends or family. It won't cost you that much for an initial consultation (maybe $80-$150). It is worth it's weight in gold for the piece of mind of knowing where you stand. Once you know exactly what your rights and the employers obligations are, you can make an informed decision about signing.
The situation that you describe is common these days - the company is looking to limit all liabilities with respect to you employment in order to avoid being blindsided with a costly lawsuit in the future. I worked for a company where that (lawsuit) happened and it cost them big time both financially and in terms of distraction of key management. In exchange for that they offer you a severance package over and above the legal minimum, (which, IIRC, here in Ontario is a paltry one week's pay for each year of service plus vacation pay outstanding). You are legally entitled to your provincially mandated minimum and under no obligation to sign ANYTHING for that minimum.
I don't know what you have been offered but it should be at least one month's pay for each year of service plus vacation pay outstanding. Still, do not sign based on what I just said - get a lawyer to review the terms and advise you. Your lawyer will have a big fat reference book which lists settlements in Canada by industry/job classification/experience. He can tell you whether the financial terms are 'fair' and whether the legal terms are reasonable. The employer is required to give you some time for you to get their 'offer' reviewed by a lawyer. You should not have to sign 'on the spot'.
Also, note that you have a golden one-time (per layoff) opportunity to direct a fairly large chunk of you severance package into your retirement savings (over and a above your allowable annual amount) without income tax deductions under these circumstances. Get the info from your employer or Revenue Canada. You will never see that money - it goes from directly from your employer into the retirement plan that you designate BUT IT IS TAX FREE and once of the few 'gifts' that you'll get.
Best of luck finding a job. Layoffs suck and are a jolt to the system but always keep in mind that you will get another job and probably be better off for it.
Finally, and in case I didn't mention it, this post does not constitute legal advice - please GET A LAWYER TO REVIEW THE PACKAGE AND ANYTHING THAT YOU WILL SIGN !
Sigs are bad for your health.
The thing to remember is this...
Regardless of what that little contract you may sign says, you can't sign a piece of paper that takes away a legal right. Company has power, but guess what, the government trumps it. If they say you can sue, which they do, then you can sue. You can't sign away legal rights like that, even if you want to (of course there are certain exceptions to this)
In this case, I say sign the paper, get your money, and if you feel the need to sue in the future do so, because they can't legally take that right away from you
If you don't have any real advice to give -- and you didn't -- then why not just refrain from posting? Ask Slashdot does not seek to get the opinion of every reader -- only those that have something of use to say. Legal questions are of important to us all, and useful for people to understand before they are confronted with a problem -- with some legal knowlege you can act with more confidence and have some legal predictability in your life.
But instead there's always tons of people like yourself who give blanket non-advice, and attack the forum -- if you don't want to see legal advice on /., then just close your damn eyes and scroll past.
Not that your comment is better or worse than any of the common, equivalent comments... but it got tiring a long time ago.
I suspect that you do have some somewhat draconian things in there as well. Those probably cropped up when panicing lawyers and accountants got involved. Everyone who agrees not to sue reduces possible liability and increases the selling value or decreases the owners' personal devastation or might even be enough coverage to encourage more funding or more time from creditors.
By accepting a severance package, you are taking some money so that you are appeased and maybe don't totally hate the company. The company might lose a lot of that goodwill if they are jerks by adding many terms to the package, but it is likely their right to try to do so.
Finally, I would mention that despite signing away your rights, in many cases (at least here in litigatous [sp] America) one can often still sue. Many contracts conceed enough rights that the courts deem them illegal and irrelevant. But hey, there's your decision. Do you bow out gracefully, thank them for the check and harbor as little ill will as possible? Or do you refuse to be bought off and either storm off or come back with a legal team? Or, finally, do you want to take the money but feel so insulted by stupid conditions that you feel the need to ask a bunch of nerds about legal matters we don't understand?
Whatever, sorry you lost your job, good luck in your efforts to find a new one.
Now
I am an employment lawyer practicing in Canada (Ontario specifically), so I know this subject very well.
:).
Why do people who know something about computers assume that this makes them qualified to give legal opinions? Do NOT go to the Labour Relations Board with those severance documents - they're not interested in seeing them and, contrary to popular opinion, they're not in the business of reviewing documents like that or giving employees advice about their termination. The labour relations board is, by and large, in the business of adjudicating disputes under the labour relations act of the province in question. The labour relations act deals primarily with disputes between employers and unions, and has virtually nothing to do with individual, non-union employee terminations.
What you want to do is to take those documents to a lawyer experienced in employment law, and get some advice as to whether the offer that is being proposed to you is reasonable or not.
In all the common law provinces of Canada (i.e. every province except Quebec) a non-government employee is entitled to reasonable notice of termination or compensation in lieu of reasonable notice, unless he or she has signed a valid employment contract substituting some other period of notice (and most employees have not done this). This is a common law entitlement enforced through the courts, not the Labour Relations Board, which has nothing to do with this. Of course you're not entitled to this if you're terminated for just cause, but economic downsizing is not just cause. The amount of notice that is "reasonable" depends primarily but not exclusively on your age, length of service and position with the Company and it's not a mathematical formula. It's also subject to a reduction for other earnings in subsequent employment during the reasonable notice period, or for earnings that you could have made during that period with reasonable diligence. For example, if you're terminated without notice, and your reasonable notice period is determined to be six months, your entitlement is six months pay (including things like benefit coverage) less your earnings in other employment in the six month period following your date of termination, either actual earnings or earnings you could have made if you had been diligently searching for other employment instead of spending your days watching TV and reading Slashdot
You're probably in a provincially regulated company (most tech companies would be provincial) so I'm not going to bother talking about unjust dismissal complaints under the Canada Labour Code - your lawyer can tell you about them if it turns out your employer is federally regulated.
There is also a statutory minimum entitlement upon termination which varies from province to province. This amount is often much, much less than the common law entitlement and an employer cannot demand a release in return for paying you this statutory minimum. This entitlement is enforced by making a complaint to an employment standards officer at the Ministry of Labour (or whatever they call it in your province) again, this is NOT the Labour Relations Board. In Ontario for about the past 3 or 4 years the labour relations board has had the jurisdiction to hear appeals from decisions of employment standards officers, but the labour relations board does not make initial decisions about employment standards entitlements and, as I said above, it has nothing to do with common law entitlement, which is the real issue you need to know about.
In Ontario commencing an employment standards complaint precludes you from suing for wrongful dismissal, so watch out. Your province may be different.
It is very, very common for a downsizing employer in Canada to offer an amount in excess of the statutory minimum in return for a release. It's a perfectly acceptable thing to do, but you need to determine whether the amount that is being offered is a realistic approximation of your common law entitlement.
The lawyer experienced in employment law can tell you almost immediately whether the Company's offer is reasonable.
do they have indoor plumbing in canada ?
Dude, that is flagrantly insulting to our hockey playing friends up north.
They are obviously advanced enough to have learned that you can *not* have indoor plumbing in an igloo.
The splatter alone would eventually melt through the wall of the igloo rendering it useless.
Please try to have a little common courtesy, and use some common sense.
It'll make the world a better place if all the different peoples can learn a little about each other, and show some respect.
don't sign unless they give you lots of money. like at least a month's wages, and agree not to sue you either.
they'd rather pay you and have the legal end covered.
Boy I'm not so sure about this - just consider it from the POV of prospective employers when they get his CV and the name seems familiar.
"Yeh, thats the guy who went ape-shit public on his last employer. Don't know who was right or wrong, but do we want a nut like that working for us?"
Guess what the answer will be? He'll have to leave town or the country, depending upon the size of the stink he manages to raise to get a job.
Also consider the ramifications if he loses all these lawsuits, and the company then asks for or lititgates for compensatory damages.
He could end up with a enormous judgement against him!
Just isn't worth it. Take the money, learn and move on.
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The only time I signed one of these, it was actually a condition of the contract that I take legal advice before signing it, which the company paid for. I doubt it would have been legally binding otherwise. But that was in the UK, not Canada.
I am 27, and it sucks even more when some 20 year olds come in that have no skills, degrees, etc. yet get 15000 more than me. Then when you find out that in order for them to do their job they require about 19000 in training. Damn, thats like winning the lottery!
I seek not only to follow in the footsteps of the men of old, I seek the things they sought.
What we're trying to do here is make sure the questioner gets the advice he needs. If you need legal advice, you must seek out a lawyer. Any advice beyond that that you receive here is exactly worth what you paid for it.
I can see the next Ask Slashdot question:
You can only drink 30 or 40 glasses of beer a day, no matter how rich you are.
-- Colonel Adolphus Busch
I cant believe the number of self professed geeks here that have a collective IQ of a stump when it comes to business...
The made you and offer... Cross out what you dont like (I'd leave in the you can sue us... nyah nyah! clause as that is what they really are interested in.. and initial where you cross the items out. make a copy of it after you signed it and send it back to them. with a letter you already printed up for the person to sign WHEN they recieve your signed severance form that they did indeed recieve your form.
if they accept it by paying you they accepted your changes. otherwise you start the next phase... "Sure I'll add that clause back in for another $1000.00 dollars." it's business.... this is HOW you do business peiople... it's not "oh than you benebolent employer... I so dont deserve anything... please dont look at me!" you are doing them a service and a favor... it is NEVER the otherway around.
Do not look at laser with remaining good eye.
There are federal and/or provincial minimum guidelines. I believe they provide for something like 1 week per year of service. Upon severance, I believe companies are required to 'make the employee whole'. In some cases, this means compensating them more depending upon their age (older people are less likely to be able to find suitable work), qualifications (more qualified people might have a harder time finding equivalent positions), etc. There is considerable subjectivity here, but also case histories you can use as supporting evidence.
What is provided for in your severance package can NOT be less than what is provided by law. So you need to look at your package and determine how much MORE they are providing you, in compensation for you giving up whatever rights you give up when you sign the severance agreement. For instance, you might have stock options which expire 30 days after you cease becoming an employee, but your company might offer you an additional 3 months IF you sign the agreement. What price do you put on your ability to sue, and what price do you put on the additional exercise/vesting period ? The answer is, as so often it is with legal-type questions here, 'it depends'.
You need to weigh the tradeoffs between what they're offering you and what you're giving up. But be advised, the legal minimums in Canada are pretty minimal. They're almost certainly giving you more than you are entitled to. Whether they are giving you more than you think you deserve is a different question.
...and when they breach the contract, what can you do? Sue? Nope. Maybe you could put a contract out on the heads of the high level executives, but that'd hardly be legal either.
So refuse to sign. Demand severance pay. When they don't give it to you, sue them. Encourage everyone else who got laid off to do the same. If they're hemmoraging money as it is and laying off people to try to stay afloat financially, they're not going to want to spend a lot of money on lawyers.
You see? You see? Your stupid minds! Stupid! Stupid!
Here in Ontario, at least, it more or less works out to 'one week of pay for every year you've worked there.' THAT, and only that, is what they are legally required to give you.
Most companies give out 'voluntary' severance packages that are much much bigger; this is what he'd have to sign to get. At least, that's my understanding.
Vintage computer games and RPG books available. Email me if you're interested.
Frankly, you joined the Navy.
I actually did a bit of research before joining the Armed Forces, and the Navy ended up at the bottom of my list.
You sir, amaze me.
Democrats or Republicans. They are both taking us to the same place and they are not afraid of us anymore.
I don't think it is off-topic. You are 100% right. The "tough job market" is for all the wannabes that exploited the dot-bomb demand for tech workers. Back in '97 I remember the cottage industry around DC dealing with NT training. These people aimed their training at people that were switching careers, not at IT professionals that were trying to improve their knowledge. A friend of mine did the MCSE thing and he used to find recruiters right outside the training centers. It was just insane!
The people that are really qualified and have the experience to back them up should do fine. The wannabes that did the dummies book thing will collect their unemployment and when it expires then they are screwed.
When I got hired at my current job the president (who is married to the CEO, this is a small shop!) told me I was one of 300+ applicants and that they spent 6 weeks interviewing people because everybody that came to them was a dot-bomb wannabe. Because of this he forced me to take some kind of quiz in Ansi SQL, which even after so many years dealing with SQL Server and Oracle I nearly flunked it (but did better than everybody else). I still did not believe him on the 300 applicants until I found a network folder with ALL 300 resumes. Amazing, out of the 300 there were maybe 15 people worth interviewing.
Pedro
----
The Insomniac Coder
What, fire-breathing and everything? That's far worse than anything I've ever seen from an employer!
If only employees were able to counter with some sort of crypt fiend web ability...
sic transit gloria mundi
They will put a gazillion conditions, give themselves the rights to sue you, your dog and all of your decendants till year 3000, and so on.
This I am affraid, you will have a hard time to change it, but what you can add before going into confrontation is clauses that protect you as well. I.e. they can't blackmail you, they can't accuse you of stuff that you didn't do, they can't stop you from working at a competitor's because they FIRED you (you didn't leave to go elsewhere) and here in Canada you can't stop someone from living his life, if you are a talented enginneer in rocket sciences, chances are you won't go to pump out gas or sell shoes. So if they can't afford you, it's not your problem, if a better company can afford you and it happens to be a competitor, well too bad, and this would hold off in court. The only thing that could go against you is if you are giving them the blueprints of what you were working on at the last company, or discuss their strategies.. this would be bad and breach your contract and besides... it's non-ethical.
The other way out if they do not want to protect you and make it only 1-way is to either go to the small claim court if what they owe you is under 3000$ (but be sure you have written evidance that they didn't want to include any of your self-protecting options in the contract, especially if they are general and legitimate, it will make them look terribly bad), another way out is simply sign it and if they ever sue you if it's that bad, here in canada it won't hold up in court, the judge will simply invalidate the contract because it's probably going to go against human right charts and work charts.
One last thing to consider: if they lay you off, they are out of cash, chances are they wouldn't be able to sue you in the first place, and chances are within the next year they will be out of buisness... but I can understand that you wouldn't want to sign such documents. I've managed to get my side protection saying that they really enjoyed my work and I was a very good employee and blablabla as a recomandation letter, so if they would blackmail me afterwards, they'd have to explain this to the judge, and they were so disorganized that I would have crushed them in no time, it's common and the last thing you need is to pay for a lawyer to comfort you and goign to court to get your money back, (small claim is okay but more than 3000$ is standard court with lawyer and long procedures, you don't want that, especially if what they owe you is under 5K.
Hope this helps... and good luck.
--- Metamoderating abusive downgraders since my 300th post.
That depends on the severence package. Is it severence as required by law, or is it an incentive they are offering you, that you otherwise have no legal right to expect?
Check with your local labor code. Find out what your rights are. If this is something above and beyond what you already had a legal right to accept, then they are simply making you an offer. You are free to leave it.
Because in Canada, in every province I believe, (Quebec may be different...), you are entitled to either proper notice of termination, or proper serverence pay. The amount of pay and what constitutes proper notice depends on many things.
But your statement that there is no such thing as severance is bullshit. There most certainly is.