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I’m Tracy Au and I have graduated from the Professional Writing program from university. I am an aspiring screenwriter, so this blog is used to promote my writing and attract people who will hire me to write for your TV show or movie. I write a lot about writing, TV, movies, jokes, and my daily life and opinions. I have another blog promoting my TV project at www.thevertexfighter.blogspot.com.

Monday, January 29, 2018

noncompete clause/ part-time work

Sept. 25, 2017 "I signed a non-compete clause. Can I take a job at a like firm?": Today I found this article in the Globe and Mail



THE QUESTION

I signed a non-compete clause limiting me from accepting a job at a like or similar company for a period of one year after my employment. Though a year has not passed, I have conditionally accepted an offer from a company that is in the same industry. The new company provides one business line only, one that my former company does not provide. Would this violate my non-compete clause?

THE FIRST ANSWER

Shane King
Partner, litigation practice group leader, McLeod Law LLP, Calgary

To provide a more specific answer, we would need to review the non-competition clause itself. However, the court would generally look to the intent of the clause, and what is actually sought to be protected.

It sounds like the intent is to restrain you from competing against your former employer, and it would be very hard for them to argue that you are competing against them, when the area you are working in is not one that your former employer is engaged in at all.

If the areas are in fact overlapping, the court would also look to ensure the non-competition clause is properly and validly entered into, which generally means it must either be entered into before you start work, or you were provided with some form of consideration, such as a bonus, in order to enter into the clause.

If the employer merely foisted this upon you, in exchange for you keeping your job, it is likely it will not hold up.

THE SECOND ANSWER


Doug Ewen
Certified Human Resources Executive , Midland, Ont.

Generally speaking, non-compete clauses cannot stop a person from working for a competitor. However, I will leave the specifics of non-compete issues to legal advisers.

What will be important is to ensure that you communicate openly and honestly, primarily with your new employer, but possibly even with your previous employer.

My suggestion is that you disclose to your new employer, in writing, that you are subject to a non-compete clause. Go on to explain that the new company does not compete with your previous company's product lines and, as a result, should not violate the agreement. Provide them with a copy of your agreement.

In your letter, be careful not to disclose any aspects of your previous employer's business lines, customers, technology, pricing models or other proprietary information, as this would likely be in violation of your agreement. Your previous company may notify your new company of the agreement, creating a potentially awkward and uncomfortable situation if you have not disclosed it.

Depending on your agreement, you may not have a duty to notify your previous employer of your new job. However, if your agreement specifically calls for notification, follow through. As with your new company, do this in writing, assuring them that their confidential information will be protected per your agreement.

Finally, once you join your new company, follow through with your commitments and do not share proprietary information as the non-compete will still be in effect. Handling the situation in this manner allows you to maintain a high ethical standard. Also, your new company will likely appreciate your honesty, as you will now be entrusted with their proprietary information.

https://beta.theglobeandmail.com/report-on-business/careers/management/i-signed-a-non-compete-clause-can-i-take-job-at-a-similar-firm/article36367576/?ref=http://www.theglobeandmail.com&

Oct. 2, 2017 "I'm part-time working 40 hrs.  Should I get benefits?": Today I found this article in the Globe and Mail


THE QUESTION

I was hired part-time in November, 2016. Since then, I have never worked fewer than 40 hours a week. Am I supposed to be designated as a full-time employee and be given benefits as such?

THE FIRST ANSWER



Natalie MacDonald
Founder, MacDonald & Associates, Toronto

First, there is no legal requirement to hire a person on as a full-time employee.

Second, provincial employment standards legislation allows employees to work up to a maximum of 44 hours a week, regardless of whether the employee is full-time, part-time, a student or casual employee.

If, however, you find yourself working more than 44 hours a week, you are entitled to receive overtime pay in the amount of one and a half times your regular rate of pay for each hour of work over 44 hours a week, regardless of your part-time status.

Third, provincial employment-standards legislation provides most employees the basic minimum rights at work, and treats full-time and part-time employees equally. All employees are entitled to receive a regular pay period, wages, regular half-hour breaks after five hours of continuous work, vacation time and pay and all other benefits conferred upon them by statute.

If your employer has placed you on a part-time contract as an independent contractor of some sort, but treats you as though you are an employee, then it might be that you are being denied significant entitlements. In that case, you need to address this with your employer to rectify your situation, or alternatively consult with your Ministry of Labour or seek employment legal counsel.

THE SECOND ANSWER

Bruce Sandy
Principal, Pathfinder Coaching & Consulting, Vancouver

I hear that you are frustrated that you have not been made a full-time employee after working for your current company for about 10 months. It sounds like you were hired on a part-time basis likely through an employment agreement.

Many private small and medium-sized companies hire staff on contractual agreements or on a casual basis so that they do not have to incur the additional cost of paying full-time wages as well as for other benefits for a number of months. Full benefit packages can add as much as 30 per cent to labour costs for companies.

You will want to get the advice of an employment lawyer about your rights under the Canada Labour Code and appropriate provincial employment legislation. Under the Canada Labour Code, you should be entitled to all the rights of a full-time worker if you have completed 12 uninterrupted months of work. This includes vacation pay, severance, and protection from unjust firing.

Have a discussion with your boss or the HR official for your company and indicate how many months and hours that you have worked so far and indicate how much you like the job and that you would like to be made a full-time employee. Ask if and when they are willing to do this. If they say "No," then you should seek the advice of an employment lawyer, update your resumé and start to look for a new full-time position.

Recognize that this may compromise the relationship with your current employer and they may want you gone sooner rather than later – i.e. before the 12-month period when they will be required under law to change your employments status to full time.

Alceste
2 days ago

The best way to deal with your employer on getting 'benefits' for part-time or full-time employees is collective bargaining. Talk to your fellow employees and contact a union.
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