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Unlock the secrets to business success and gain valuable insights from local industry leaders. Join us as we delve into the strategies, triumphs, and lessons learned of thriving companies, empowering entrepreneurs to elevate their businesses to new heights.
Sharon: [00:00:16] Welcome to It's Time for Success: The Business Insights podcast. Today we're diving into the topic of employment law. Whether you're hiring your first employee or managing a team of 50, the legal side of being an employer often feels like we're walking through a landmine. Navigating employees incorrectly can cost the business thousands of dollars and an absurd amount of stress. I'm sitting down today with Amy Bassili, founder of Bassili Law. Amy specializes in employment law, representing both sides of the table, employers and employees. So we get to see both sides of this coin. This gives Amy a unique perspective on where the friction starts, and more importantly, how to prevent it. Today we're going to talk about how to protect your business, the documents you absolutely cannot skip in the simple steps you can take today to avoid the common HR mistakes that sink great companies. Amy, thank you so much for being here with us today.
Amy: [00:01:06] Thank you for having me.
Sharon: [00:01:08] Okay. I need you to tell us all about yourself. Why in the heck you would want to choose this career path? And just tell us a little bit about your law firm.
Amy: [00:01:18] Oh good question. Well, I'm born and bred in Edmonton and I went to school in Edmonton, studied at the University of Alberta, did not know I wanted to be a lawyer necessarily, but did know I wanted to study law. I felt like as a young person, I felt pretty ignorant and wanted to understand the law, understand my rights. And you know, what I know, what I can and can't do as a citizen. Once I hit law school, I realized this could be interesting. Let's give this a go. Let's start a career and see if we like it. And that was, I don't know, 20 years ago. And here we are. It was a lawyer at a firm, a big firm downtown for a number of years and recently decided to start my own thing, specialize a little bit more, narrow my focus and my areas of practice, and build a team of lawyers who are interested in the same type of work and interested in the same way of practicing with the same values. So started my own thing. And yeah, we're kicking ass, having a great time.
Sharon: [00:02:16] That's awesome. That's so exciting. You know, I went to school to become a legal assistant. That's what I did. Now I'm an entrepreneur. So let's move on. Okay. So today we're going to help our listeners. The main focus of this podcast is to help entrepreneurs. And I know you're on both sides of the scale here. So it's nice to have your input on both sides of, you know, from an employee's perspective, an employer's perspective. But most importantly, how do our listeners out there who are employers protect themselves? Tell us what the first thing they should be doing or focusing on?
Amy: [00:02:49] Well, I think the first thing business owners, entrepreneurs, should be doing is probably, the answer I'm going to give you is probably not the answer you're expecting to hear from a lawyer, but I think you really need to establish what matters most to you in your business and what your values are within your business. And that I think from there, what will flow from there is how you can protect your business better, depending on what matters most to you as a business. So if, for example, as a business owner, it's very critical for you that you value your employees and you want to be fair with your employees, and you want to make sure that you're generous with your employees, you know, then then the approach you might take to be protecting your business might look different than somebody, perhaps, who's more risky or is willing to take chances. And perhaps, you know, those types of things, with litigation or… So it's not a one-size-fits-all, Sharon, I would say. But what I would say in general for business owners, in my experience and practice, oftentimes, business owners, entrepreneurs, are very focused on generating revenues and the success of the business, and not necessarily focused on risk to the business, or lawsuits or potential litigation or avoiding these types of things.
Amy: [00:04:12] But I also often find that entrepreneurs that are very innovative and progressive and really, you know, looking to succeed in their business and scale their businesses, often are using lawyers to help those values and not necessarily considering the risks they have or considering those risks. So I would say in general, I think business owners need to give some attention to what I would call insurance. So getting a good legal lawyer or legal team around you that understands your business and understands how to protect the interests of your business and protect the values you've decided are the pillars to your business and avoid the type, those types of risks. Often entrepreneurs don't want to spend money on lawyers unless they have to, because, you know, the word on the street are lawyers are expensive. And when I tell clients or potential clients, entrepreneurs, business owners that it's going to cost you a heck of a lot more money in legal fees being reactive to something litigation-focused or law-focused, rather than treating lawyers and the legal assistants you're getting as insurance ahead of time, up front. I promise you, we'll save you a heck of a lot of money. But that sounds salesy. It's not meant to be. It's the truth of the matter.
Sharon: [00:05:32] Yeah, what I was picking up from that, so be a good person. Obviously, that's what it sums up. If you've got the proper culture, you've got to be a good person. But in my situation, I like to think that I protect my team and I protect, you know, it's all about my team and I do have a good culture. I feel like that. But what happens if you hire the wrong damn person and that happens to you even though you have the culture. Even though… because sometimes you hire too fast, which I've done in the past. It’s never been that. But, you know, there's been situations like, oh, you know, I'm a little bit on the fence about how that went down. Like, is there something that you need as like a contract with employees or how does that work?
Amy: [00:06:09] Yeah, yeah. And we've all hired the wrong people in our businesses. I'm a business owner and we've all made those mistakes. It's not even a mistake. Not everyone we hire is a perfect fit. But yes, to answer your question, absolutely. I would suggest to business owners, having contracts in place will protect you, will protect your employees—your number one asset. Will protect each other. And more than that, it's an understanding. It's an understanding, a mutual understanding of hey guys, this is what's going to happen. This is what our situation looks like. This is what we're going to do when we work together. And if we have to part ways, this is what it's going to look like. And we all have had the opportunity to review it, consider it, obtain independent legal advice about it. And it saves a heck of a lot of conflict later when you have things papered like a contract. So yes, yes, I would absolutely encourage business owners to have employment contracts in place. And here's the other thing. Not every employee may be treated the same. So I often find, again, it's probably one of these sort of cost saving things that business owners do to try to save costs with lawyers. But you can't simply just pull a precedent off the internet or ChatGPT and expect it to be a one-size-fits-all for all of your employees, or for your business in general. So this is why I would stress the importance of having good legal advisors around you, in your team, in your business. Just like we've got our employees, our staff, our payroll people, our whatever. Add some legal advice into your team.
Sharon: [00:07:39] Can you tell me the difference between an employee contract and an employee handbook? Are those two different things or what?
Amy: [00:07:46] Well, a contract is just a contract. A contract can be anything, you know. It's an agreement. An agreement between two parties. An employee handbook could be part of an agreement or be an agreement in and of itself. So often employee handbooks, which often employers are expecting employees to read and abide by the policies contained within that handbook, often they have signature lines. Often they have an initial page at the bottom of every page of that handbook. So yes, I would say on a technical basis, if you're hiring someone and that employee is provided with your company's employee handbook, and that handbook contains policies and procedures that the employer is expecting that employee to abide by, they sign that, that's a contract. That's an agreement.
Sharon: [00:08:36] So when you talk about employment contracts, what are a few phrases that, like, I don't know what should be an employment contract. What's the key focus on, like what would be a couple of things that need to be in there to protect the employers?
Amy: [00:08:50] To protect both, right. The employers. But yes, we're talking about I know your focus right now is on employers, so that's great. So one thing that's pretty important is what's going to happen to your employee if terminated. Because that's the kicker. And I think that's probably what you're likely most focused on today, Sharon, in terms of giving advice to your business owner listeners, if you've got an employee who's been with your company for 25 years, for example, and that employee hypothetically is, you know, getting close to retirement and is in their late 50s or early 60s, and you want to terminate them and you don't have a contract in place, for example, or an enforceable contract in place, that employee is expecting some form of notice of that termination that would be greater than somebody who, for example, you just hired yesterday. So you need to protect yourself as an employer by having some form of certainty in terms of what is going to transpire when, if I choose to terminate my employees, what is my risk? What will happen? What do I want to maintain control of? What happens if I decide to terminate them? And so you've if you've got a contract in place, that's enforceable, okay. Because you can still have a handshake as a contract.
Amy: [00:10:13] Sometimes a piece of paper on a napkin, some terms written on a napkin can still be a contract. But if these things turn into a lawsuit, for example, then there's arguments about whether or not the terms are enforceable, which is why we’ve got to go back to getting a lawyer in place to assist you with your contracts. But that's, you know, not getting off topic. If you've got a contract in place, then you know, exactly as an employer what's going to happen to your employee if you decide, if you wish to terminate them? And that can help you as a business owner decide. Make the decisions for your company as to what's important. Do you want to terminate them at this time? This is what the contract says. If we do this, this is what happens. If we do that, this is what happens. Whereas if you don't have an employment contract in place, that's when the law will still apply. There still are certain parameters and obligations employers have to have towards their employees. But if you don't have certainty in a contract, that can open you as a business owner up to tremendous risk. When I say risk, I say cost expense in that termination. And stress, you're right.
Sharon: [00:11:15] The stress is hard. Yeah. One thing though, I feel too, if you had this, and I'm just saying, if you had this in place and you have a new hire, you're going to be looking. I think the new hires are going to be A players. Almost now employees are shopping for the proper fit. That's what I find right now is what's happening. Before I just went and worked and I was happy to have a job, but now it's like they're almost shopping for the right fit. So I feel that if you have all your ducks in a row, whether that be an employee handbook, you have your employment contract, you’re hiring A players.
Amy: [00:11:45] Perhaps. I would agree with you that things have changed, say maybe, perhaps generationally. You're right. When we were younger, we just worked and did our job and were grateful for it and whether it was a good job or a bad job. And you know, how we feel about the newer generations and how they perceive the world and carry themselves in the world is besides the point. They are definitely have a different value system now. And you're right, there is higher expectations now that employees have than perhaps when we were younger and we were looking for work. So I would say there are A players out there that, they know what they want, and they aren't going to settle for something less than that. And I would say that if you want to get those A players into your business, you're right. There's a high competition now and they've got options and the ones that are the best know that. And so they're going to ask those types of questions like, well what are my benefits? What's my income? What's my vacation? What's my, what's the notice I get if I'm terminated? These types of things that you're right, I think having some certainty in some form of employment agreement with them, you're likely better off to get those A players. You're right.
Sharon: [00:13:01] Mhm. Mhm. Yeah. It just puts your business up above them and it, like I say, they come in with confidence as well. Okay. We're talking about you and I chatted a little bit about some points last night. And I think we're going to talk about reasonable notice. Can you go into that a little bit for us?
Amy: [00:13:18] Sure. So back to what we were talking about about an employment contract. If you as a business owner have a good, solid contract in place with an employee that provides certainty to both sides as to what is to happen if that employee, in some point in the future, is terminated, and if that contract follows the law. In other words, you can't have a contract that pays somebody less than minimum wage, for example. So you've still got, a contract still has to be lawful. So if that contract is still lawful and enforceable, well then you've got certainty on both sides as to what happens. However, let's use the example of. So let me go back to that contract. There's minimum requirements for employers that they're obligated to provide certain notice or pay in lieu of notice to their employees. And that information is contained, we're talking about Alberta business owners right now, so that's contained in the Alberta Employment Standards Code. I doubt if you get if you're getting an A player employee coming to join your business or considering joining your business, and you've got an employment contract in place that says, hey, if you work here for 20 years, you're only going to get the minimum requirements under the code, which is eight weeks. If you've worked here for 8 or for 20 years, you might not get your A player.
Sharon: [00:14:43] Mhm. Gotcha
Amy: [00:14:44] Gotcha. But here's the other part. If your contract that provides that should be providing some form of certainty doesn't provide certainty because perhaps the contract isn't clear, or maybe there's no contract at all, or maybe the contract doesn't deal with this issue. Well then that's when the common law applies. And what that means is there's still law that applies, but it's not going to be the contract that applies, contract law. The courts are going to look at something else. And the courts, when there's no contract in place, that provides certainty to the employer and employee as to what is to happen. If you were to terminate that employee, the courts are going to consider a bunch of things to figure out what would actually be fair? What is the fair amount of notice that this employer ought to have provided this employee upon termination? And they're going to consider a whole bunch of things to come up with some degree of a subjective calculation. There is some. What I'm trying to say is it's an art, not a science. But I can promise you this, it'll certainly be greater. The notice that, the expectation of notice to that employee will be greater than what is the minimum under the code if the common law applies. Okay. So employers can contract out of common law notice. They can contract out of it if their contract is fair and clear. And it's very straightforward. Everybody gets it. If you're going to be terminated without cause. We're not even talking about with cause terminations right now. We're talking about if you're going to be terminated where we need to give you some notice, our contract’s really clear this is the notice you're going to get. Okay. But if it's not clear, you're up for a potential very large claim for notice and or pay or notice.
Sharon: [00:16:26] So even if so in that situation. So business slows down. We get into an oil crunch. We have to lay people off. That would be that situation.
Amy: [00:16:35] Well, if you have to lay people off, there are different rules when it comes to layoffs under the legislation. So if you're talking about an actual layoff and we're not using the word layoff to describe termination, there are different rules about that. But layoffs. So what I mean by that is, if someone's being laid off, the expectation is they're going to be coming back to work for that company.
Sharon: [00:17:01] Okay. Gotcha. Versus termination.
Amy: [00:17:03] So you're I think you might be using the word termination or meaning the word layoff to mean termination perhaps.
Sharon: [00:17:10] Yeah.
Amy: [00:17:10] Let me say it like this. If the company isn't doing well and you need to terminate some staff because you’ve got to mitigate some of the overhead and you've got to let go of some people, the financial climate of your company doesn't mitigate your responsibility to your employee to provide them with proper notice of their termination.
Sharon: [00:17:30] So could you imagine going through all these courts and having to pay extra, like you said, greater than when you're already in a financial crisis at business, in your business.
Amy: [00:17:40] Exactly. All the more reason to buy that insurance, as I've put it, and get good legal advisors in place within your business ahead of time to be proactive and avoid these types of situations rather than reactive. And then you're in the situation, and it's going to cost you a heck of a lot more to get out of it versus creating that form of insurance and certainty within your organization. So if and when the company is not doing well, you've got options. You've prepared yourself.
Sharon: [00:18:09] Does it matter if you have one employee, 20 employees? If you make $20,000 revenue a month, you know, $2 million revenue a month? When does that contract? When should a company look at that contract or the insurance, as you call it? Does it matter?
Amy: [00:18:24] I think it doesn't matter how small your company is. I think contracts are critical. I think a lot of times people assume contract, they think formality, they think complexity. That doesn't have to be the case. As I've said, we've I've written contracts in litigation, in lawsuits. I've settled agreements and lawsuits on a napkin. So, it doesn't have to be complicated. It doesn't mean that if you hire a lawyer and say, hey, I'm starting my new business or I have a business, it's five years old, but we don't have any contracts. I'd like to get some contracts in place. It doesn't mean it's going to be so expensive to put these things in place. But what I will stress is, if you don't have these things in place, the potential risk to you, whether you have a staff of two or a staff of 200, could be pretty significant. So it really depends on how risk averse you are. Do you carry insurance? How much insurance do you carry? How much life insurance do you carry? These are types of questions that you know, again, go back to your values and what matters to you. Maybe you don't care at all, and maybe you want to take the risk that, you know, I'm not going to treat my employees, I'm not going to follow the law at all, and we're just going to hope for the best and maybe one employee down the road might sue me, and I don't know. It really just depends on your, on what you think is... But for me, as a lawyer practicing for 20 years, mostly in the area of employment and working for both employees and employers, and so I recognize what is important or what should be what, you know, the best interests of both parties. To me, it's a no-brainer. Protect yourself.
Sharon: [00:19:53] One thing I would like to talk to you about, too, what would be some situations, Amy, give us a hypothetical scenarios of when they come to you, whether that be the employee or the employer, what some hypothetical situations when they come to you, when they didn't have that contract, and what could have been prevented?
Amy: [00:20:18] Sure. Okay. Let's start with employee clients. I have some employee clients who have been, that are executives within these, within large organizations, making $200 and between $250 and $500,000 a year, perhaps sometimes more, have been loyal to the company they've worked for. And then 25, hypothetically, 25 years later, they're being turfed and with a lowball offer of notice. This employee client has been, is now in their 60s, were planning to retire and now that's, all the retirement plans are out the window. And they weren't expecting to be terminated with whatever, call it three months notice. In this hypothetical, they're not going to find comparable work in that short amount of time frame. Not to mention, most companies in a competitive marketplace are likely not going to hire that 65 year old executive who's been doing it for 30 years and might want to hire that new up and comer in their 20s, who's eager and zealous and ready to go. So these types of people call me every day. And so that type of client, again, if they don't have a, if there's no contract in place that's fair, reasonable, enforceable, then that's where the common law I've talked to you about applies.
Amy: [00:21:40] And I will rigorously assist that person to obtain the proper notice that they should get which. So that would be a hypothetical for an employee. Often employers, my employer clients, you know you've got it depends again on how risk averse my clients are. I've got some clients who are very paper heavy. We've got all their employee handbooks, their employment contracts, their policies. Everything is current and very current. Like every time there's any change in the law, there'll be an update to the handbooks. Their employees are all signing it where, you know, they're invested in protection. And then I have other employer clients who perhaps aren't as paper heavy, still want. You know, it depends again on their value systems. They might call me and be like, hey, I've got this employee who just sued us, demanding a whole bunch of money, and I don't know what to do about it. So, and then we'll assist them to get through that. Does that answer your question?
Sharon: [00:22:36] Yeah it does. I had one thing pop into my mind. What happens if you have. So say for example, you've been in business for five years. Whatever the case is, you went to you and you created this employee contract. What happens if an employee refuses to sign it?
Amy: [00:22:49] It'd probably be an indicator to me that that might not be a good fit for my company. If I'm going to get them to sign a contract and they're unwilling. If these are the values of my company, these are the parameters in which we work under. You're telling them, here's my offer to you. This is my offer of employment to you. If they don't sign it, I guess you don't have an employee, right?
Sharon: [00:23:10] I guess, but what happens if they like. Yeah. Oh my goodness.
Amy: [00:23:15] But are you saying if you want to have a new contract for an existing employee that has been with the company for some time.
Sharon: [00:23:21] Yeah. So like literally you've been running for however long, they're your, whatever the case scenario is, they've been doing this doing that, and they're doing fine at their job, but they just do not want to sign it.
Amy: [00:23:31] Okay. So let's give you two hypotheticals. In the example you've given, I have an employee calling me and saying, hi, I've been working for this company for five years. There was no employment contract when I started, and now my employer has put a piece of paper, a four page document in front of me on my desk and said, hey, there's this employment contract with a whole bunch of terms in it that I've never seen before, and I need to sign it. What should I do lawyer? So in that example, I mean, there's a lot to say about it, but in general, I will say, well, if you've been an employee working for an employer for five years under certain terms, because there are certain terms, even if you don't have something in writing, there are certain law that applies. And now you're coming five years into the thing and saying, okay, we've got new things, we've got new, new plans for you. I'd ask, what do I get to sign this? What do I, the employee, get? You've now changed things on me. What do I get out of this? So perhaps the employer needs to provide something to that employee in exchange for their agreement. Some form of consideration, as lawyers call it. Some monetary consideration. Perhaps the terms of the contract are so that the proposed terms of this new contract, the employer is presenting this to this hypothetical employee, are so vastly different than the position this employee carried before that maybe this is a potential termination, a constructive dismissal, maybe, you know, it's not so straightforward.
Amy: [00:24:56] If you're going to present a new contract to your existing employees, you can. It's doable. But it's not just. Hi, guys. Hi, you've been here working for me. Here, now sign this. Now, this is the new deal. That's not how it works. That's not fair. So you can be fair. And when I respect or when I... So now I'm going to give you the perspective of the employer. So that now this hypothetical employer is coming to me and saying, hi Bassili Law, we’ve got to get some contracts in place. We realize our business is doing really well. We're generating significant revenues. We are… our profit increases every year. But we're feeling a little nervous now because we were a quick startup. We got going. We don't have any employment contracts in place. We started with just the two of us, and now we're 20 and we're freaking out. We’ve got to do something. Well, then what I would do for that client is, again, we'd go right back to, okay, let's talk about your values. Let's talk about how risk averse you are in the situations where perhaps an employee will come hypothetically to you to sue. And then we then we create the agreements at that point in time that they need to give to sufficiently protect them from the risk of lawsuits that their employees might bring.
Sharon: [00:26:02] Oh my goodness.
Amy: [00:26:03] It doesn't have to be so complicated. Which is the point. I feel like that's exactly the point I was trying to tell you about, Sharon, when it comes to insurance. This is what lawyers do for businesses or they should be doing for businesses. So business owners, entrepreneurial people can focus on what they're good at, building their business and let the lawyers focus on what they're good at. And of course, there's different degrees of lawyer, right? And so what I want to encourage the listeners to remember is when you're hiring a lawyer to help your business, you need to have a lawyer that understands business and understands you, the client, which is a business. And so a lot of lawyers might, especially litigators. Well, I mean, often litigators are really focused on a lawsuit and not necessarily focused on the big picture of the client themselves, the business. And so our corporate clients, our company clients, we don't just talk to them on an ad hoc basis when there's a problem. We talk to them regularly because we're part of the team for the business to make the business succeed. So we're assisting on the legal side because these entrepreneurs shouldn't think about that, just like they shouldn't be thinking about, I don't know, all of the other things you do that your employees do for you and your business that you don't bother thinking about. You're at the top and you've got to be thinking about other things. So not every lawyer is the same.
Sharon: [00:27:24] I bet. Yeah, well, let's say I worked in that world. You're right. Okay. Employee contract. Do they sign it once or is it signed yearly again?
Amy: [00:27:33] It really depends on the client. It depends on the value system of the business. And it depends on the strength of the contract. But there are certain contracts I have seen by companies that have retained us, that have that expectation. And so if the expectation is that employees are to keep signing every year, well, best make sure they're doing that. Otherwise you're in breach of your contract.
Sharon: [00:27:54] Right. Because it does change sometimes. Things change.
Amy: [00:27:58] Exactly.
Sharon: [00:27:59] But not the laws like the not or not even the law like the Alberta Employment Standards, like they change. But as long as you worded it should change, if you word it properly, it should follow it through, wouldn't it?
Amy: [00:28:11] Well, that's just it. You don't need to worry about this stuff. This is what the lawyer, a lawyer who knows the law should be doing for you. But yes, to answer your question, your lawyers who are assisting you with your contracts need to know the law. They need to be current in the law. And your contract needs to be current. Because if your contract doesn't follow the law, or is unlawful, is a better way to say it, if your contract is unlawful, then your contract will be unenforceable. So for example, if you've got somebody and they're expected to get four weeks pay, four weeks pay, or four weeks notice of their termination under the employment standards legislation, but your contract would only give them three weeks, they're not going to get three because they signed a contract that said three weeks.
Sharon: [00:28:51] We talked about benefits last night a little bit and that confused me. So I'm just going to use the word benefits and I'm going to let you roll with it.
Amy: [00:29:12] Well, benefits is another thing when you're talking about those A player employees that our businesses all want to hire. We all want them. We want the A players. And what differentiates our business from others, right? Not just, we're not just competing against our competitors in the marketplace, but we're competing against our competitors to hire the best A players. And benefits are important to people. Benefits are very important. Benefits are also very expensive. To obtain the type of benefits that perhaps, like a group benefits plan can provide an employee, is far more expensive if you're trying to get it on your own. And so this is something that can kind of get you the, give you the edge. But again, if your contracts are strong, great. But if your contracts aren't super strong and you've got a 20-year employee and you need to and then we're terminating without cause this term, this employee and the common law notice is what's going to apply. The common law will apply to the notice that is required to give that employee. Well, there'll be an expectation that they're getting not just the value of their wages, but the value of their income. And the value of their income includes the value of the benefits. So if your employee of 20 years had long term disability, perhaps your company was contributing to their RRSPs, health, the full health and dental and vision and on all the things, I'm… they're escaping my mind right now. But all of the benefit. Perhaps you give them a vehicle allowance, maybe they get to, maybe you pay for their gas, maybe they have a company car, a cell phone, laptop, all of those values to that employee encompass their income if you want to put it that way.
Amy: [00:30:47] Right. So again, if you don't have a strong contract in place and the common law is what's going to apply, those benefits are going to matter because they're giving everything up if you've terminated them. So how much notice do you need to really give them? And how much pay in lieu of notice if you're not giving them working notice the expectation is that they should be made whole for the employer's breach of the agreement, because that's actually what it is. The idea is, okay, we're entering into a deal. I'm your boss. Here's my offer to you, employee. Do you want to work for me? Yes or no? Yes, I do. All right, let's say there's no written contract, but we understand that, okay, the employee is being hired. They're going to be making $30 an hour. There are certain parameters around this agreement that hasn't been in writing, but there is some form of agreement. Okay? This kid has been working for you now for 20 years. And when they started, they were making $30 an hour, but now they're making $200,000 or 100, let's call it $100,000. Just to be simple. They've got a whole bunch of benefits now, with the company now. Perhaps they're in management a little bit. They've got a, they've got some people directly reporting to them.
Amy: [00:31:54] Right? The environment is different 20 years than later than that contract you entered into them, that agreement 30 years ago when they were just starting out. The notice that the law is expecting the obligation is that it will be greater because they've been with you for longer. They're making more money. They're more important to your company. And more importantly than that, it's going to be harder for them now to find comparable work when they leave you after you've let them go. So back to this whole breach of agreement thing. Even if the contract isn't in writing, the idea is, okay, if they haven't done anything really bad. So you just want to terminate them without cause, you're entitled to do that as an employer, but you’ve got to provide them with sufficient notice of that termination. That's the law. And so the idea is, okay, we had a deal in place. I'm offering you a job. You've accepted. Now the boss is saying, I've got to breach that deal. I don't want you to work for me anymore. But that's okay. I can remedy that. I'm going to give you notice of this termination. I'm going to give you fair notice. And the question of what is fair is again, goes right back to, is there a contract in writing? If not, what law applies? This is where you need a lawyer. This is the point. I don't want to confuse all the listeners.
Sharon: [00:33:06] I just find it remarkable because we basically follow the the Alberta Employment standards. And I thought we were covered with that. Like if we follow those rules, give them, you know, the sufficient notification, give them the sufficient, whatever that is. But you're saying that is not enough.
Amy: [00:33:23] No, that's not what I'm saying. I'm saying it really depends on the agreement you have between you and your employees. And is the agreement enforceable? And there's always some form of agreement. It might not be in writing, but you’ve got a deal. You've got a contract with your employees. They're working for you. There's an agreement in place. The question is, what are the terms? What are the terms of the agreement, and how do we get out of the agreement fairly? And so, I haven't seen your agreement for your company.
Sharon: [00:33:48] No, I have an employee handbook. That's it. I'm going to send it to you right now, I think, right after this meeting and see what I'm missing. I thought I was a genius, that I had it, but maybe I'm probably missing shit.
Amy: [00:33:59] You know, a lot of employers are like, but no, they call me and say, we've got a written contract, they've signed it. And then I read it and I go, well, this isn't, I don't think this is enforceable. I don't think this is a binding agreement because ABC, XYZ, whatever it is. Right? But sometimes it is, but sometimes it isn't. Like, this is the point. We gotta stay in our lane and focus on what we're good at, and let the people who draft contracts and understand how they work and interpreting them and, you know, let them do that for your business.
Sharon: [00:34:26] There's one thing, too, about how does that work? Not so much in my industry, but oil industry, for example. I've heard people say it. So if they're working under a company, contractor underneath the company, they cannot pursue the same. You know better than I do. The same career path within a certain mile radius. Is that… actually, that's not true. When I bought Lloydminster, it was they couldn't create another promotional product company within a certain mile radius. But that was part of the sale.
Amy: [00:34:54] Yeah. I think you're talking about something a little different. You're talking about different types of contracts and you're I think you're talking about maybe, perhaps when an employee who has maybe a higher up within the organization is leaving, they perhaps had signed a non-solicitation or a non-compete or a combination of both. Yeah. Again, these are types of protections that employers need as well, especially when you've got high up people who are within your organization who have sufficient knowledge of your confidential information. Perhaps your company has proprietary interests that you have certain employees that have access to. Yeah, they've got to get proper agreements in place to protect your confidential information, to protect your assets, your customers, your clients, your suppliers. Again, it goes right back to the agreements. And here's another thing, Sharon, I've seen a lot of non-solicitation. I've seen a lot of non-compete agreements, non-competition agreements. So I gotta, let's say we've got this hypothetical employee who calls me and says, hey, I signed this non-compete, and it's telling me I can't do anything, basically, that I know how to do for the next three years. And in all of Canada, I'm just giving a hypothetical, I might say pound sand former employer. That's my advice to you. That's not an enforceable contract. So again, just because you've signed a contract doesn't mean it's enforceable, which is why, again, the expertise of lawyers is very important in your business.
Sharon: [00:36:16] So like if I just say, for example, I added in there a non-compete and they couldn't start a promotional company within Western Canada, that's not really realistic? So it would not be enforced is what you're saying?
Amy: [00:36:28] Without being... And I'm not trying to be evasive. I cannot simply answer that question in specific. But I will say that in general, non-compete agreements are by default construed as unenforceable. That's the default because we have a free market, and the government and the judiciary don't want to get in the way and constrain free market and trade and competition with one another. However, there are agreements that can be formed that create, so that create parameters around unlawful competition, unfair competition. Of course, there are situations where, for example, that I've given you, you've got a high up executive within your organization who's been with you for a number of years, has your customer lists, your… all of these things, and they leave the company and they steal your information and take your clients. Well, that's not fair competition. But these are all the nuances that, again, entrepreneurs don't know, nor should they unless they went to law school and are practicing currently. These are answers for lawyers. And ultimately it goes right, goes back to the economics, right? There are certain things in our businesses we are willing to spend money on. There are certain things we're not. And it goes right back to your values as a company and how risk averse you are and how much you're willing to spend. You get a good lawyer, you get a good lawyer in your team, you can be creative and you can curate what works best for your business. You don't have to have everything upfront also, by the way. It's not like when I started my new business. It's not like I had everything up and running all my contracts up and running. And I'm an employment lawyer, right? Sometimes you do these things over time, right? Like you renovate your house over time. You maybe don't finish your entire basement right away, you know? But as you continue to grow and evolve, you know, you do certain things. But does that answer your question? I feel like I'm going, I'm derailing.
Sharon: [00:37:54] So I have a question also. You have friction, you’ve got some, you’ve got some kickback from an employee or an employee has some kickback from the employer. When do you leave it? And how long do you reach out for legal advice? I know that's a very vague question, and I apologize for that. But give me a scenario. There's got to be a situation that you've done or hypothetically, that you can explain to us.
Amy: [00:38:13] Well, I can tell you that if I'm if I've been retained to represent someone or a company, if I send a letter and I say, I suggest in the letter I need an answer from you by such and such a date, or I'm going to do or my client is going to do such and such a thing, I can tell you it's going to happen. So if that answers the question in terms of urgency.
Sharon: [00:38:36] How about protecting yourself? What about if I laid somebody off or let them go terminated, and I just have a sinking feeling in my gut? When do I reach out? Right away? Because I just have this awful feeling if I did it correctly, is there a way to protect myself then, or is it too late?
Amy: [00:38:49] No, nothing is too late because, I mean, certain things might be too late. But then of course, the later you leave things, the more you let things languish, the worse your odds are going to be. If you're worried now, be pro. This is exactly my point. Be proactive now. Call your lawyer and say, hey, maybe I have nothing to worry about, but this is what's going on. With my company clients that I've had, like, we don't terminate people without calling us first. Okay? They call one of my lawyers or me first before that termination, before they do it, to make sure they're doing it correctly to, again, mitigate risk. That doesn't mean the employee doesn't come back and try to screw the employer later. That's out of our control. But if we've done everything we can, you know we're in good stead. So yeah, my answer to your question is I wouldn't let things wait. No. Lawsuits are expensive. They're very expensive. I wouldn't want to be in one. I'll tell you. In my personal experience, I have decided to forego certain lawsuits that I could have started because it wasn't worth the headache to me.
Sharon: [00:39:47] Mhm. Mhm. Oh my goodness. Okay, I'm getting a contract. All right. And everybody out there should get a contract. Is there anything that I missed asking you. What's important? Both sides of the party, like it doesn't matter. But of course this is an employer protecting our employers podcast. But what am I missing? What can you share with people?
Amy: [00:40:06] I think the most, the essence or the most important thing I'd like to share with your listeners, who I understand are mostly business owners, is you really need to get, you need to build a good team. And your team, I mean, you might know who part of that team is, but I think that also includes your legal advisors. And that doesn't just mean start paying a lawyer. It means find a lawyer that understands your values and your company and is going to act for your business's best interests, and that's part of your team. Then you're going to have some assurances and some insurance. With respect, a whole vast array of issues that are going to be important to your business that frankly, you don't have the time to think about or even or even have the understanding to even consider. Right? So you've got somebody on your team who understands a whole bunch of information that you don't know to protect you and your company. So I would say that would be the main advice I would give your listeners. Respect what you don't know and hire the people that do. I don't go fix my own toilet. I hire a plumber.
Sharon: [00:41:10] So based on that, because you specialize in employment law, but then we also need an accountant for our minute books. We need a lawyer for a minute books, we need a lawyer for if I want to buy another building and grow. Does that matter? So I have multiple lawyers in my toolkit?
Amy: [00:41:30] So I've got long-standing employer clients that have been with me for years and years. I'm their lawyer. They call me. And if it's something out of my wheelhouse, if my team doesn't do it, I refer them to the right people who do.
Sharon: [00:41:41] Okay, so it's not abnormal to have different lawyers on your team.
Amy: [00:41:48] I would not be the lawyer to draft a unanimous shareholders agreement, but I would be the lawyer to litigate it, for example. But I'm still your company's lawyer. I'm going to tell you, you know what, for your situation, I would give you these names to draft that contract. For another client, I might not give you the same referral. It really depends on the interests of your company. So it's not a one size fits all situation. The point is, you've got to get a lawyer that you trust your legal advisor within your team that you know has got your company's back. The rest flows from there.
Sharon: [00:42:22] Yeah. I always say this is who I need in my corner. I need a lawyer, I need an accountant, and I need a banker. Those are my three people that I need in my corner, and I need them to answer my emails or phone calls when I need them. Yes. Yep. Okay, I'm probably going to sign off because I think we're clicked up here quite a bit. So tell our listeners how they can reach out to you please, Amy.
Amy: [00:42:41] Oh, sure. They can reach out to me. You can Google Bassili Law. You can reach out to me by email or by phone. Our law firm is completely remote. We run our entire organization remotely. And people wonder how on earth we do that. But it's pretty straightforward and pretty easy. And all our clients are very happy to pick up the phone and reach us quickly, without the need to drive downtown and pay $30 for parking to have a meeting we could have for five minutes on the phone. So we're fully remote and our lawyers work quickly and fast and they can reach us. Yeah, find me online to see the law.
Sharon: [00:43:21] So that's perfect. So you're totally remote. It's a phone call away. Zoom call. Whatever the case is, you make it happen. That's awesome. Okay, well thank you. I really appreciate this podcast and you joining me today, Amy. I know it's been a few months to get going and hooking up together, and I apologize because a lot of it is foreign to me, so I was making notes as well at the same time, so I, hopefully I asked the right questions for our listeners.
Amy: [00:43:44] I think it was fun and great.
Sharon: [00:43:49] It was a masterclass on how to build a business on a solid foundation, and I think that we do need those contracts in place. And you definitely opened up my eyes and how important that is. And not just my, you know, and I must elaborate on my employee handbook. I created it myself. So how legal is that? Right? When you think about that? Like I need to get that research and go over. Especially because we're growing like, you know, we used to be an employee of four of us. Now I think there's 17 or 18 of us, right? So there's just.
Amy: [00:44:29] There you go. Risk. It's greater risk.
Sharon: [00:44:30] So I hope everybody enjoyed this podcast. Make sure to like, follow and subscribe to It's Time for Success: The Business Insights Podcast. Reach out to Amy also and follow her on all her. You're on LinkedIn as well?
Amy: [00:44:57] We are. LinkedIn, Facebook, all the things.
Sharon: [00:45:03] Perfect. So yeah, follow you there. If you know of a fellow business owner who is currently hiring and growing, please do them a favour and share this episode with them today. Until next time, keep building your success. One step, one story, one lesson at a time. Thank you Amy.
Amy: [00:45:17] Thank you.