Rights at Work: Helping Employers and Employees Understand Employee Rights
posted in: Employment
COVID-19 has changed nearly every aspect of our lives, and the workplace is no exception. That being said, many of the rights employees enjoy at work remain the same. It is important that employees and employers alike understand these rights: for employees, so they can exercise them, and for employers, so they can ensure they do not infringe them.
To assist employees and employers, this blog will discuss the proper and improper forms of termination and the value of employment agreements. Please note that this blog is for informational purposes only and is not a substitute for legal advice. Contact the team at KMSC Law to discuss employment law issues specific to you.
Forms of Termination
With and Without Cause:
There are two basic ways an employee can be dismissed: with and without just cause. If an employer has “just cause,” they may dismiss an employee without warning. Examples of just cause include serious misconduct, drug use, lateness and absenteeism, and incompetence.
That being said, employers may also dismiss employees without just cause. But if the employer does so, they must give the employee reasonable notice or pay in lieu of notice. What is “reasonable” is determined by the employee’s length of employment, age, position, education, and experience, and is thus different for each person.
Wrongful and Constructive Dismissal:
The term “wrongful dismissal” is thrown around a lot because it means a few things. If an employee is fired without just cause and without notice, that’s wrongful dismissal. But other examples of wrongful dismissal include an employee being let go during a leave of absence or maternity leave, and the employer claiming they had just cause to fire the employee when they did not.
Constructive dismissal is another, more complicated form of wrongful dismissal. Constructive dismissal may occur when an employer, without the employee’s consent, changes a fundamental term of the employment agreement. For example, if you were the assistant manager of a grocery store, and the manager suddenly altered your duties to include working as a cashier and stocking shelves, you may have a case for constructive dismissal. In such situations, the employee is entitled to reasonable notice or pay in lieu of notice, just as if they were terminated without cause.
Lay-offs are when employees are “let go” due to restructuring or economic problems. People often believe that employers can lay off their employees without notice, so long as they do not immediately hire someone to fill the position that was just “laid off.” But this is not always the case. Even if the employer is undergoing economic hardship, the employee may still be entitled to reasonable notice.
Employment agreements set out the entitlements, obligations, and responsibilities of the employer and employee. All employment relationships have employment agreements, be they written or unwritten. Unwritten agreements are defined by the law and the actions of the employer and employee.
The advantage of a written employment contract is that it can clearly set out the rights of each party. A typical agreement will include the employee’s job title and responsibilities, work schedule, salary, benefits, and paid and sick leave, among other things. A well-written termination clause in an employment agreement can even decrease an employer’s liability for wrongful dismissal damages by setting out the grounds on which an employer is entitled to dismiss the employee and by limiting the employee’s entitlement to the law’s usual minimum notice.
If you’re an employer who needs help drafting employment agreements, or an employee who feels their rights have been violated, contact the team at KMSC Law today. Though COVID-19 may keep you at home, we have options, such as video conferencing, for discussing your legal issues.