Employers limiting limitations; Where’s the consideration?
American employers have begun to ask new employees to sign a waiver which effectively reduces the limitation period for employment law claims to 6 months after the loss.
Our friends at Law.com recently reported how DaimlerChrysler Corp. won a battle to enforce such an agreement. Mee Sanders was denied portions of her claim against her union and ex-employer because the Court ruled that Sanders waived her legal right to a 2 year limitation period when she applied for the position, thus reducing it to a 6 month limitation period.
The clause that Chrysler relied on, shown below, is brought to the attention of all applicants during the job application process.
In consideration of Chrysler’s review of my application, I agree that any claim or lawsuit arising out of my employment with, or my application for employment with Chrysler Corporation or any of its subsidiaries must be filed no more than six (6) months after the date of the employment action that is the subject of the claim or lawsuit. While I understand that the statute of limitations for claims arising out of an employment action may be longer than six (6) months, I agree to be bound by the six (6) month period of limitations set forth herein and I WAIVE ANY STATUTE OF LIMITATIONS TO THE CONTRARY.
In Canada the enforcement of a similar clause is doubtful. Canadian courts will not enforce contractual clauses that provide employees with less than their statutory entitlement. In other words, if the clause is viewed as illegal, it is void for public policy reasons.
While Canadian employees can agree to limit their entitlements to less than they would receive had there been no clause in their contract, there are still various tests that must be met in order to enforce such a clause.
Daniel A. Lublin is a Toronto Employment Lawyer practicing in the law of wrongful dismissal. He can be reached at firstname.lastname@example.org or visit www.toronto-employmentlawyer.com