CPHR Alberta Magazine - Summer 2018 - 17

LEGAL CORNER

ROLLING
OUT NEW
EMPLOYMENT
CONTRACTS?
©ISTOCK.COM/SKYNESHER

BY KYLE J. ALLEN, BROWNLEE LLP

PLANNING ON providing existing
employees with new employment
contracts that attempt to limit their
entitlement to working notice or
severance in the event of a without
cause termination? If the employees
were not previously bound by severance-limiting termination clauses,
there are many contractual enforceability issues that first must be considered by an employer. Here are a
few major issues to consider:

Has the employee been
provided with fresh
"consideration"?
If an employer wants to bind an
employee to a severance-limiting
termination clause for the first
time pursuant to a new employment contract or offer letter, for
the clause to be enforceable, the
employee must receive something of
value in exchange for agreeing to the
less favourable severance-limiting
terms of employment. For example,
in exchange for acceptance, an
employer may provide the employee
with a promotion and raise, or additional vacation days. Short of doing

so, even if the employee voluntarily
and unequivocally agrees to the
new employment contract or offer
letter, the enforceability of the severance-limiting termination provision
would be vulnerable to a successful
legal challenge.

Has the employee
been provided with the
proposed new employment
contract in advance,
and in connection
had an opportunity to
seek legal advice?
Another contractual enforceability
related mistake employers commonly make when implementing new
employment contracts with severance-limiting termination provisions
is failing to provide the employee
with a reasonable amount of time to
review and consider a new contract,
as well as obtain legal advice, before
signing the contract. While there is
no hard and fast rule regarding the
number of days an employer should
provide to an employee to review and
ultimately sign a new contract, in
ordinary circumstances, something

in the range of 3-5 business days
is likely appropriate. Of course, if
an employee requests a reasonable
extension to review and consider, the
extension should be granted.
In addition to providing the
employee with time to review and
consider, as well as seek legal advice
on, the new proposed terms and
conditions of employment, it is also
prudent to include a clause in the
contract acknowledging that the
employee had the opportunity to
obtain legal advice and either did
so, or waived such opportunity. A
clause of this nature may assist an
employer in defending any future
assertion by an employee that the
severance-limiting provision is or
was unenforceable, and/or an assertion that he or she did not have
reasonable opportunity to obtain
independent legal advice.
Kyle J. Allen is an Associate in Brownlee
LLP's Labour and Employment group
practice area. Kyle helps all types of
employers handle all forms of labour and
employment issues by providing strategic, practical, and cost-effective advice.
CPHR Alberta Magazine | Issue 2 | 17


http://www.ISTOCK.COM/SKYNESHER

Table of Contents for the Digital Edition of CPHR Alberta Magazine - Summer 2018

Leadership Matters
A Vision for 2018 Workplaces
Cultivating a Culture of Innovation: Innovation is People!
Do You have these Types of Fraudulent Claims on Your Benefits Plan?
How to Avoid ‘Career Misery’ in Your Workplace
Legal Corner: Rolling Out New Employment Contracts?
Legal Corner: Demystifying Constructive Dismissal
Legislation Update: Is Pay Equity Legislation Coming to Alberta?
Suppliers’ Guide
Index of Advertisers/Advertisers.com
CPHR Alberta Magazine - Summer 2018 - Intro
CPHR Alberta Magazine - Summer 2018 - cover1
CPHR Alberta Magazine - Summer 2018 - cover2
CPHR Alberta Magazine - Summer 2018 - 3
CPHR Alberta Magazine - Summer 2018 - 4
CPHR Alberta Magazine - Summer 2018 - Leadership Matters
CPHR Alberta Magazine - Summer 2018 - A Vision for 2018 Workplaces
CPHR Alberta Magazine - Summer 2018 - 7
CPHR Alberta Magazine - Summer 2018 - 8
CPHR Alberta Magazine - Summer 2018 - 9
CPHR Alberta Magazine - Summer 2018 - Cultivating a Culture of Innovation: Innovation is People!
CPHR Alberta Magazine - Summer 2018 - 11
CPHR Alberta Magazine - Summer 2018 - 12
CPHR Alberta Magazine - Summer 2018 - 13
CPHR Alberta Magazine - Summer 2018 - Do You have these Types of Fraudulent Claims on Your Benefits Plan?
CPHR Alberta Magazine - Summer 2018 - 15
CPHR Alberta Magazine - Summer 2018 - How to Avoid ‘Career Misery’ in Your Workplace
CPHR Alberta Magazine - Summer 2018 - Legal Corner: Rolling Out New Employment Contracts?
CPHR Alberta Magazine - Summer 2018 - Legal Corner: Demystifying Constructive Dismissal
CPHR Alberta Magazine - Summer 2018 - 19
CPHR Alberta Magazine - Summer 2018 - 20
CPHR Alberta Magazine - Summer 2018 - Legislation Update: Is Pay Equity Legislation Coming to Alberta?
CPHR Alberta Magazine - Summer 2018 - Suppliers’ Guide
CPHR Alberta Magazine - Summer 2018 - 23
CPHR Alberta Magazine - Summer 2018 - 24
CPHR Alberta Magazine - Summer 2018 - 25
CPHR Alberta Magazine - Summer 2018 - Index of Advertisers/Advertisers.com
CPHR Alberta Magazine - Summer 2018 - cover3
CPHR Alberta Magazine - Summer 2018 - cover4
CPHR Alberta Magazine - Summer 2018 - outsert1
CPHR Alberta Magazine - Summer 2018 - outsert2
CPHR Alberta Magazine - Summer 2018 - outsert3
CPHR Alberta Magazine - Summer 2018 - outsert4
CPHR Alberta Magazine - Summer 2018 - outsert5
CPHR Alberta Magazine - Summer 2018 - outsert6
CPHR Alberta Magazine - Summer 2018 - outsert7
CPHR Alberta Magazine - Summer 2018 - outsert8
CPHR Alberta Magazine - Summer 2018 - outsert9
CPHR Alberta Magazine - Summer 2018 - outsert10
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