Workplace Law’s biggest misconceptions

Nov 25, 2012

“Criticism may not be agreeable, but it is necessary.”   –Winston Churchill
This is as true at work as it is in life, except that in workplace law there is always an exception.  Here is a sampling of some of the questions readers of this column frequently ask and the answers that I often provide.
Should I respond to a poor performance appraisal? The short answer is yes. Even if you are not given an opportunity to disapprove, you should do so anyway. Point out, in writing, that the standards expected of you were not objectively reasonable, were beyond your capability, were not communicated properly or that suitable instructions were not given. Ensure your response is placed in your employee file.
I am told that non-competes will never be enforced? Courts prefer not to enforce these clauses but that is not a good reason to sign them anyway. In practice, once your signature is on a document, it is hard to show that you are not bound by it. If you are given an agreement that you disagree with – then try not to sign it.
Can I be fired while I am on sick leave? You cannot be fired because you are sick or on sick leave. But you can be fired for any other non-discriminatory reason, such as restructuring or lack of work. There are obvious adverse inferences if you are suddenly fired when you get sick so you should not necessarily accept the reason you are given.
I should have received a promotion. This is one of my favourite misconceptions. There is no right to a promotion or even a salary increase, no matter how long or meritorious your service. This remains within the discretion of your employer – and if you don’t like it, you have the right to leave.
I signed an independent contractor agreement but I am truly an employee. In reality, it usually does not matter that workers sign agreements confirming they are independent from their employers. When this characterization is challenged, sometimes many years later, courts are apt to find these workers are truly employees. Many times the contract represents little else than a “label”. What matters is how the parties actually behave.
Author: Daniel Lublin
Publication: Metro

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