I was terminated from my job. As part of my severance agreement, my employer asked me to sign a contract that includes a statement about not contacting anyone from the company. I am already in touch with one ex-co-worker who has offered to help me network and find a new job. This restriction feels harsh, but I would like to receive my severance pay. Is the company allowed to impose this restriction in order to receive severance pay? Could the company actually sue me if I continue to e-mail my former colleagues, or request a LinkedIn connection with them, even if it’s just to network?
THE FIRST ANSWER
Alia Besharat, employment lawyer, Monkhouse Law Employment Lawyers, Toronto
In short, it is not reasonable for your former employer to require that you not contact anyone from the company. A blanket statement restricting communication is overly restrictive and unreasonable.
You should also be sure to confirm whether the statement relates to a non-solicitation clause as this is different from a blanket statement, which restricts you from speaking to your former colleagues. The statement may be a non-solicitation clause, which is sometimes reasonable upon termination as it relates to approaching former employees or actively pursuing employees once a working relationship has ended. It is important to have an employment lawyer review the documents before signing off.
Although it may seem as if they are trying to hold your severance package over your head, it is important to know that any severance package at termination should be seen as an offer from your former employer. In other words, you should attempt to negotiate the terms and conditions in the offer before signing. An example of this can be asking to remove a clause or clauses that are unreasonable or asking for an increased severance amount.
Please note, if you allow for the timeframe of the offer to lapse, you will only be paid your minimum entitlements under legislation and not any amount above, if any.
That being said, if you choose to contact your former colleagues for networking purposes, you should be careful not to divulge the specific details of the severance package as that should remain confidential.
Lastly, if you want to sign without negotiating the terms, you should request a confirmation of employment, which should set out your job title, length of service and main job duties. If you want a more detailed letter, such as a letter of reference, you should ask your former employer before you sign any release. Your former employer is under no obligation to provide a detailed letter of reference but it’s a good idea to ask.
THE SECOND ANSWER
Sarah Levine, lawyer, Taylor Janis Workplace Law, Edmonton
There are certain clauses that are common in employment agreements, so much so that they are well-known in common parlance. These include the non-disclosure clause, the non-competition clause and the non-solicitation clause. The latter – non-competition and non-solicitation clauses, referred to as “restrictive covenants” – place a formal trade restraint on an employee after they leave, to protect the legitimate business interests of the employer.
A court will generally only enforce these clauses to the minimum extent possible, meaning, if the clauses are excessive in temporal or geographic scope (the time period and geographic area in which they purport to restrict the employee), the court may not uphold them. The idea is to strike a balance between the protection of an employer’s legitimate business interests and an employee’s freedom of trade.
Although we do not have the benefit of reviewing the clause in your severance agreement, from what you describe, your employer is attempting to prevent you from any contact with your former co-workers. Such a clause is unlikely to be enforceable because there is no business purpose for it, unlike a non-competition or non-solicitation clause.
It is possible that the no-contact clause is connected to a confidentiality clause. If that is the case, then it is legal for an employer to require as a condition of receiving a severance package that an employee agree to keep the proprietary information of the business they came to learn in the course of employment confidential. A confidentiality clause could also refer to non-disclosure of the terms of the settlement agreement to anyone other than immediate family or legal or financial advisers, which would exclude former co-workers.
Without knowing the details of why you were terminated and how a no-contact or confidentiality clause may be rationally tied to that, the networking pursuits you describe are unlikely to be an issue, so long as your communications with ex-co-workers remain about looking for a new job, and do not concern the proprietary interests of the company or disclose any confidential information.
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