Dealing w/ Draconian Severance Contracts? 352
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."
Sadly... (Score:2, Informative)
Re:Sadly... (Score:2)
Re:Sadly... (Score:2)
You're in canada? LRB (Score:3, Informative)
Re:You're in canada? LRB (Score:3, Informative)
Back to the original askslashdot. He says he wants his severance package. The company says you won't get it unless you sign certain papers.
If your original contract says you are entitled to a severance package and it doesn't state anything about "certain papers", then I don't see the problem. Both parties should be legally bound to the original contract and it's just a matter of sorting it out at the LBR if the company throws a hissy-fit.
But, IANAL.
If you are laid off, the bottom line is DON'T SIGN ANYTHING. Even if the document asks you to if you wear boxers or briefs (especially if the document asks you if you wear boxers or briefs). Human Resources & Development Canada (HDRC) will send you some paper work. You sign up for unemployment insurance and start lookin for another job.
If the company refuses to grant you your severance take it to the LRB.
I have received my papers and they are simply dragonian!
Hey, at least you got a dragon out of the whole deal.
Re:You're in canada? LRB (Score:4, Informative)
In your case, you should talk to a lawyer. You can get half an hour for very little with most Bar Associations. Just call the local number.
Now, about the suing thing. If you accept a payout, usually that enjoins you from suing - that's protection for you and your former employer. It's another contract - they agree to pay you money to tide you over until you can find another job, and in return you agree not to sue them. If you were forced to sign under duress, that's another matter. If you think that what they are offering is inadequate, then you need to negotiate a better result. Again, a lawyer who specialises in employment law is the best person to talk to, because such people deal with these situations all the time, and can tell you what the market bears.
IANAL, but my field is HR consulting (I'm an Industrial Psychologist), and I deal fairly frequently with people who have been terminated - it's part of my practice. The non-disclosure aspect they may not be able to enforce - they terminated the contract, and a court might find that they thereby waived their rights. Again, you need a lawyer to give you advice on that.
Good luck.
Do NOT go to the Labour Relations Board (Score:5, Informative)
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.
get a lawyer and have him call (Score:3, Insightful)
hhhmm.. (Score:5, Funny)
IANAL, and this is not the place for legal advice! (Score:4, Informative)
Here's the best I can offer: Go See A Lawyer.
Don't Tell Him.... (Score:2)
Re:IANAL, and this is not the place for legal advi (Score:3, Insightful)
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.
Lawyers Aren't Allowed To Comment (Score:2)
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:
Re:Lawyers Aren't Allowed To Comment (Score:3, Insightful)
Posting a question like this in a public forum isn't going to give you a solid answer. I think most people who do so realize this. But it can give you a direction to consider, and it can help inform other people who have similar concerns now or in the future.
If you don't like it... (Score:3, Funny)
Err... wait, too late for that. Nevermind.
Ask to take the documents to a Lawyer (Score:2, Insightful)
be pragmatic (Score:5, Insightful)
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.
Re:be pragmatic (Score:4, Insightful)
Or perhaps they have been exposing him to toxic chemicals, and he won't know for years?
Re:be pragmatic (Score:2)
Re:be pragmatic (Score:2)
and you will be able to sue over the contract itself.
Why you're being laid off from a dot-bomb (Score:3, Informative)
Standard Stuff (Score:3, Insightful)
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?
Don't waste your time.. (Score:2, Interesting)
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.
Re:Don't waste your time.. (Score:4, Informative)
http://www.qp.gov.bc.ca/statreg/stat/E/96113_01
Liability resulting from length of service
63 (1) After 3 consecutive months of employment, the employer becomes liable to pay an employee an amount equal to one week's wages as compensation for length of service.
(2) The employer's liability for compensation for length of service increases as follows:
(a) after 12 consecutive months of employment, to an amount equal to 2 weeks' wages;
(b) after 3 consecutive years of employment, to an amount equal to 3 weeks' wages plus one additional week's wages for each additional year of employment, to a maximum of 8 weeks' wages.
Solidarity + Nothing under duress (Score:2)
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.
I am not a Canadian lawyer, (Score:5, Insightful)
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?
As a layoff winner... (Score:5, Informative)
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.
Re:As a layoff winner... (Score:2)
Re:As a layoff winner... (Score:3, Informative)
ie/ if she is entitled to 14 weeks, her 14 weeks start when the 4 weeks you mention are up
AFAIK, correct me if i'm wrong
Re:As a layoff winner... (Score:2)
Re:As a layoff winner... (Score:3, Informative)
Not a lot by any means, but should be sufficient to keep a roof overhead and food in stomach while looking for another job.
Can't speak for Canada, but... (Score:2, Interesting)
Re:Can't speak for Canada, but... (Score:2, Informative)
Most of the time you might as well sign this agreement, since you won't get the severance pay without it, and in the US you generally aren't entitled to it. Secondly, because the majority of US states are considered AT-WILL employment states, your employer can fire you at their whim. You could only sue for claims arrising out of sexual harrassment or discrimination based on a (legally) protected class.
Even if you are the target of discrimination, it's very difficult to actually prove in court and the detrimental effect on your carrer when potential employeers do a background check and find that suit, generally make it not worth the trouble. Generally, it's in your own best interest to sign the agreement and take the severance package.
Nolo Press has a decent self-help/tutorial about employees rights that covers these issues, and btw. these agreements are written by corporate lawyers and they generally actually do know what is legal and binding in a contract, so don't believe your average slashdotter that claims blah blah blah isn't legally enforcable.
Could we get more info? (Score:2)
Legally (Score:3, Funny)
It depends (Score:5, Informative)
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.
Re:It depends (Score:2)
google: labour relations [google.ca]
Re:It depends (Score:2)
Re:It depends (Score:2)
Re:It depends (Score:3, Informative)
IANAL, and I don't know much about Canadian law specifically, so no one should simply take my word on this without consulting further, preferably with a competent Canadian barrister who works in contract law. That said, I'm pretty sure Canadian contract law follows the main gist of common law in this area like the rest of the anglosphere, and that would mean that
Judges tend to take a fairly dim view of contracts that would limit the judges ability to try any case they want. That is to say, even if it is a legal contract, if it went before a judge that for any reason whatsoever decided he'd rather try it, he would have no difficulty coming up with a pretext to void it. Judges have been doing that for many years.
So I must disagree with your statement quoted above.
That said, this guy definately needs to talk with a canadian contract lawyer and receive competent and specific legal advise before he signs anything!
Usual, not unusal (Score:4, Informative)
C//
Re:Usual, not unusal (Score:5, Informative)
Taken from here [gov.ab.ca]
Re:Usual, not unusal (Score:2)
Always look at the bright side (Score:3, Funny)
You never know what you can contract that way...
Wow (Score:2)
Next Time (Score:4, Informative)
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.
Re:Next Time (Score:3, Informative)
Anyway, these severance agreements are Standard Operating Proceedure, but may contain things that are not enforcable.
Two can play that game (Score:3, Funny)
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&
Think this thru carefully! (Score:3, Insightful)
"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.
Been there, done that (Score:5, Informative)
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!
The bigger picture. (Score:3, Insightful)
I for one put bills/food/housing before my sense of feeling hunky-dory.
Is it worth it? (Score:4, Informative)
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.
Severance should be negotiated up front (Score:3, Informative)
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?
Manitoba (Score:3, Informative)
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.
Okay... as it happens, I know this. (Score:2)
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.
Re:Okay... as it happens, I know this. (Score:2)
Seriously - Why ask this here? (Score:2)
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
draGonian (Score:2)
Thou require'th a knight to slay these beasts of oppression.
been there... somewhat... (Score:5, Informative)
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.
See a Lawyer! (Score:2)
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.
Re:See a Lawyer! (Score:4, Interesting)
In the US, if you are entitled to a severance package as part of the terms aand conditions of your employment, the employer cannot require you to sign a no-sue agreement at the time of your departure in exchange for this severence since you were already entitled to it. The employee has to offer you something extra. If they try this, the agreement is valueless.
In addition there are a lot of very strict rules covering the form and execution of this agreement, especially if the employer wishes immunity from suit under ADEA. Some of these can be seen at:
http://www.cbia.com/HRBus/EmploymentIssues/Term
Re:See a Lawyer! (Score:2)
When I was laid off by Viacom they had a standard corporate policy for all layoffs, used to calculate the number of weeks of severance. Since I'd been there for 8 years, and hadn't taken a vacation the last year, I got roughly 9 weeks of pay after leaving. This was corporate policy for all layoffs.
Now, in addition to this I had the option of signing a restrictive contract that required me not to discuss the terms of the severance package, not badmouth Viacom, not sue, etc. for an additional 2 weeks of pay.
Yes, I chose not to sign. I already had 8 weeks coming and was working part-time at my future employer after hours, with an agreement that I would begin full-time once the company shut down. Double pay for over 2 months was nice.
Not that it was all roses. The management team they brought in the final year, after the long-timers all abandoned ship, made every single employee's life a living hell the final week of their employment (fired with 'cause' = no severance). These were a couple of dicks who I will never, ever work with again, and frankly will badmouth at every opportunity I get.
Evidently I'm not the only one because they never got another job in the video game industry again. The industry is so small, and word of mouth spreads so fast, they ended up just screwing themselves.
that's the usual deal (Score:2)
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?
Strike out the clause and sign (Score:2, Interesting)
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.
One way to look at it (Score:2)
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...
Employment Standards Act (Score:2, Informative)
I'm sure the other provinces have some similar.
I can recomend a good lawyer (Score:2, Informative)
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!
May I guess a company name ? (Score:2)
Ontario Provisions (Score:3, Informative)
Here are Ontario's provisions [gov.on.ca]:
Jason PollockHow that works with a dot-bomb (Score:2)
Severance Contracts (Score:5, Interesting)
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.
Sign it! (Score:3, Interesting)
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.
dragonian!? (Score:2)
the word is "draconian [dictionary.com]", 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)
Take the money and cash the check ... (Score:2)
If it's a dot-bomb, you better get what you can while you can.
Bankrupt companies do not sue (Score:2)
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.
Put it this way... (Score:2)
Advice From A Fellow Canadian Who's Been There (Score:4, Insightful)
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 !
they can't take your rights away... (Score:3, Insightful)
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
Re:they can't take your rights away... (Score:2)
I'm not in Canada, and I'm not a lawyer, but this is pretty basic in all legal jurisdictions derived from English law.
Re:they can't take your rights away... (Score:2)
Of course, you can sign away legal rights...
In the UK this is turns out not to be the case, for instance all those "you can't sue us if you die" disclaimers that people make you sign for just about everything you do in the States are totally invalid in the UK. They have no weight in law, if people are negligent there isn't any way for them to get you to sign your legal rights to sue them away.
Al.Re:they can't take your rights away... (Score:2)
Honestly, Some of that may be fair (Score:2)
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
bargain (Score:2)
they'd rather pay you and have the legal end covered.
See A Lawyer (Score:2)
It's time to negotiate... (Score:2)
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.
it depends (Score:2)
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.
it'll also be fraud (Score:5, Insightful)
Re:it'll also be fraud (Score:2)
Re:it'll also be fraud (Score:2)
Typically (at least in the states)... (Score:3, Informative)
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)
or better (Score:3, Funny)
You don't have a RIGHT to a severence package (Score:2)
Again, IANAL.
--CTH
Re:You don't have a RIGHT to a severence package (Score:2)
Mind you, being at will doesn't mean that employment is not a contract. It is. It just means that it is a contract that either party can sever at any time.
An employer can fire you for any reason or no reason at all, but there are important exceptions.
These generally come under:
1. Statutory law. In the US, for example, it is illegal to fire someone because of his/her race.
2. "Other" law. My favorite example of this is a "violates public policy" case. The driver of an armored car got out of the armored car to save a person's life. I don't remember if the person was having a heart attack, had been hit by a car, or what. Anyway, the driver's employer fired him for violating clear company policy against leaving the vehicle for any reason that was not explicitly authorized. The court found that public policy favoring the preservation of human life overrode the company policy and found in favor of the driver.
A similar category would be retaliation firings. An employer takes a foolish risk by firing someone in retaliation for exercising legal rights. Many a person has won damages against an employer, even after losing on their initial claim. Why? Public policy will not be served if the threat of firing effectively removes legally granted rights to action.
3. Explicitly written contracts -- individual contracts and collective bargaining agreements.
4. Civil service regulations.
5. A company's own written HR policies.
Remember that I said employment is a contractual relationship whether you sign a piece of paper or not? If your employer has written personnel policies, those become a part of the employment contract and the employer is bound to follow them. Mind you, they can be changed at will, but, while in effect, they are part of the contract.
Alas, severence pay is not a right unless explicitly provided for.
Re:Sign it with a fake name (Score:2)
any lawyers to confirm?
Re:Dragonian? (Score:2)
Re:Umm... get a lawyer? (Score:3, Insightful)
That's what we need... (Score:2)
Not needed. (Score:2)
Re:Canada (Score:2)
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.
hehe, that blows (Score:2)