Zubas + Associates in the News “The Non-Linear Career Path” in Keeping Tabs Magazine

Recently, Zubas + Associates Lawyer, Ted Flett, was published in the Advocates’ Society Keeping Tabs Magazine. The career reflection piece, which discussed Non-Linear Career Paths in law, is available to read here and below.

The Non-Linear Career Path

In the spring of 2017, days before my call to the bar, Kathleen Howie, a trusted mentor and Group General Counsel at The Co‑operators, forewarned me that few legal career trajectories are linear. Nowadays, ups, downs, ebbs and flows can be part of a fulfilling and varied legal career. Howie’s insight has already rung true in my first three years of practice which, through stumbles and successes, have been varied, dynamic and rewarding.

During my first year of practice at a national firm, I worked on large and complex files with sophisticated support systems. As I litigated, I met a range of opposing counsel, many of whom were self-employed, driven and confident. They impressed me. My desire to advocate for employees and advise SMEs on their workplace obligations became impossible to contain.

So, one year after being licensed, I stepped off Bay Street, hung my solo shingle and opened Ted Flett Law. Slowly, I began shaping the career I wanted and doing the work that I most believed needed doing: pursuing justice and equality in the workplace.

I later joined Zubas + Associates; a boutique employment and human rights firm that is both scrappy and principled. Without the Bay Street infrastructure, I found myself standing before clients and the bench sooner and with more carriage than I otherwise might have had. While those first client consultations and Court appearances were unnerving, with preparation and pep talks, I persevered and learned a lot.

Based on my observation and my formed legal network, early legal careers which are non-linear, like mine, are increasingly common. Travis Usher, senior recruitment partner at ZSA in Toronto, sees this more often in his work matching lawyers and employers.

“I think people are looking for more out of their careers than just a paycheck,” he says, explaining the trend. “They want to feel like they’re contributing. They want to be fulfilled by their careers, not just do a job. And that means doing something that is meaningful for you and sometimes that can be hard to find.”

Usher encourages job-seeking lawyers to be frank when explaining why their resume may show multiple jumps. He says that an employer – whether a firm or company seeking in house counsel – is more likely concerned about the “why” than the “how many.”

Christine York sees thousands of students and junior lawyers in her capacity as Director of Associate and Student Programs at Alexander Holburn in Vancouver. York encourages junior lawyers to untether themselves from a career path that starts and finishes in one practice group at one firm; a dream  often formulated in law school, or sooner, before the lawyer has even dipped their toe into practicing.

“Most people only understand their career paths when they have the opportunity to look back on it,” she says. “It makes all the sense in the world when you can understand where you came to a crossroads and why you made those decisions and they get you to where you need to go. It’s a really hard thing when you’re actually living it.”

The thoughtful advisor underscores that we do not need to have all the short-term answers at every stage to get to the long-term goal.

“While a young lawyer is learning how to be a professional, you’re also figuring out about who you are,” she says. “It’s important to be alive to what makes you happy, what your aptitudes are and if you’re doing something that makes you happy, you’re probably really good at it as well. So, figure out who you are and what makes you happy and then assess those opportunities as they arrive.”

It is noteworthy to add that both Usher and York wrestled with their own doubts when veering away from the practice of law to their respective roles at ZSA and Alexander Holburn, respectively.

When a junior lawyer finds themselves navigating a switch due to the termination of their employment, York recommends that they muster strength and start reaching out. “The legal career is long and it is one that requires a lot of resilience and grit and so you need to be prepared for the unexpected and that it will happen,” she says. “Build a tool kit so that you remain resilient and thoughtful when you go through a career crisis and reach out to your resources, networks and connections. I often tell students and lawyers that it’s much better to have a personal connection than to send out a ton of resumes.”

As I mosey up to my desk each day at the firm, I take comfort in their wisdom as I reflect on my zig-zagging path from bar call to the present. I love what I do and I am less rattled by the unconventional route that I took to get here.  In the pursuit of my client’s interests and the firm’s goals, I find myself on the steady track to happiness, wherever it leads.

What Should Employees look for in an Employment Contract?

Eight Pitfalls to be Aware of Before Signing an Agreement

So, you’ve come through rounds of gruelling interviews and reference checks and have received an offer of employment. Or maybe, just a friendly casual conversation. The start of a new job frequently starts with an employment agreement to help establish the terms between the employer-employee relationship. Far too often, candidates are enamoured by the compensation – salary, benefits and vacation – and overlook other essentials in an employment contract.

But, looking beyond compensation, here are eight key features in an employment contract that employment lawyers are on the look out for:

  1. No Written Contract

While employees may be nervous by the absence of an employment contract, in some instances, a handshake deal and lack of written terms may favour the employee. Essential terms may be implemented by the conduct of the employee and employer once employment commences. Further, if a contract is executed after the start of employment, the agreement runs the likely risk of being deemed unenforceable if there is not sufficient consideration (such as a one-time payment or increase in salary).

A discussion with an employment lawyer would be prudent before agreeing to a verbal employment agreement and commencing work without a written employment contract.

  1. Incomplete or Inaccurate Employment Contract

Employees should be wary of written employment agreements which fail to include all of the promises made to them during the negotiation exchanges or discussions. Employment contracts often have a boilerplate ‘entire agreement’ clause, which typically purports to exclude any terms, promises or guarantees that are not memorialised or included in the written agreement. If a dispute arises later, employees should anticipate that employers will rely on such clauses.

  1. Probationary Periods

A probation period, if any, usually starts at the outset of employment and typically ranges for the first three to six months.  A common misconception is that probationary periods are automatically included in employment relationships. Rather, the employer and employee have to agree to include a probationary period as a term of the employment contract.

Probationary periods are sometimes presented as an opportunity for both the employee and employer to assess the employee’s suitability for the position.  In reality, the effect of a probationary clause can be quite harsh on an employee. Most employees in Ontario are not afforded any minimum statutory notice or termination pay protections during the initial three-month period of employment pursuant to the Employment Standards Act, 2000 (the “ESA”). An employee dismissed without notice during a probation period, before completing three months of employment may be left without any protection or recourse.

  1. Working Hours and Overtime Pay

The timing and number of hours an employee is required or permitted to work will have obvious impacts on an employee’s work and personal life.  The question of additional pay, if any, for overtime hours worked and eligibility for overtime pay at a rate of time-and-one-half may also be crucially important.

While the ESA generally requires employers to provide overtime pay to employees who work beyond 44 hours per week, certain categories of employees, such as some supervisors or managers and employees in certain types of jobs, are not entitled to overtime pay under the ESA.

For this reason, some employers are generous in giving titles of “supervisor” and “manager.” If an employee’s title as stated in an employment agreement is “manager” or something similar yet, in practice, the individual does not oversee other employees or participate in decision-making, the exemption may not apply.

In spite of what management title the employment contract specifies, you may be entitled to overtime pay if you work more than forty-for (44) hours per week.

Before you purport to surrender your right to claim overtime by executiing an employment agreement, see an employment lawyer to help assess the role in practice and overtime eligibility.

  1. Temporary Lay-off Provisions

The legality of temporary layoffs has become a topic of much debate since the start of the COVID-19 Pandemic when many employers attempted to temporarily lay off employees as a cost-savings measure or purely out of panic about the impending economic impacts without pushback. While traditionally reserved for jobs with sporadic work flow or seasonal jobs, for example, where staffing needs fluctuate, the pandemic has forced many employers to consider temporary layoff provisions as a standard inclusion in their employment agreements.

If an employer intends to rely on the employment agreement to temporarily lay off an employee, the temporary layoff provision should, at the very least, be clear and consistent with the law.

  1. Termination of Employment Provisions

When present in an offer of employment or employment agreement, a termination clause or clauses may outline an employee’s entitlements when the employee is fired with or without cause. In common law jurisdictions, such as Ontario, employers are able to displace an employee’s entitlements to common law notice period protection through a carefully-drafted termination provision, leaving an employee with as little as the minimum entitlements under the ESA. Crafting restrictive termination clauses takes precision in order for them to be enforceable. Such provisions must be clear, explicit, lawful and form a valid term of the employment agreement. If not, the Court may deem the clause to be unenforceable and award the employee greater monetary compensation for the employer’s failure to provide reasonable notice of termination.

Before you attempt to eliminate or redraft a termination provision that appears to limit your rights upon the termination of your employment, see an employment lawyer, as an unenforceable termination clause may actually be in your favour.

  1. Restrictive Covenants

A review of restrictive covenants in an employment contract is also important. Prohibitions during the employment relationship can prevent employees from performing outside work as an employee or consultant i.e. ‘moonlighting’. Employees with outside ventures, such as part time employment, or consulting roles should address this issue with an employment lawyer. Further, some restrictive clauses such as non compete clauses, prevent you from engaging in certain activities and taking certain jobs for months after the employment relationship comes to an end. The wording of such restrictions should also be assessed by an employment lawyer to determine their enforceability.

  1. Continuing Obligations from Previous Employment

Employment contracts often include provisions confirming the employee is not subject to any obligations from previous employment that may prevent them from accepting the agreement. Review of restrictive covenants from prior employment agreements, as well as any implied obligations arising from prior employment by an employment lawyer is prudent before accepting a new role.

Before you sign the dotted line or broker the terms of your employment contract, contact an employment lawyer at Zubas + Associates at 416-593-5844 or questions@employment-lawyers.ca