Can you think of one way in which the COVID-19 pandemic changed the way you practice Employment Law, whether you represent employees, employers or both?
I am sure you can think of more than one example. After all, the pandemic brought several changes to employment laws, time and time again, keeping all of us employment lawyers on our toes, as we navigated unfamiliar terrain and ensured our clients make informed decisions.
In this article, I outline some strategic and practical considerations when drafting and implementing employment contracts, especially in light of the COVID-19 pandemic.
This is not meant to be exhaustive. If you have any comments or questions, feel free to reach out to me directly.
While it goes without saying, I would be remiss if I did not start with a general principle of contract law: there must be an offer, acceptance, and consideration in order to form a binding contract.
For new employees, the consideration offered at the outset of the employment relationship is typically the offer of employment itself. However, once an offer has been made and accepted, the employer must provide fresh consideration in order to change the terms of the relationship. Accordingly, if an existing employee is asked to sign a new employment agreement, they must be provided with fresh consideration (e.g., a signing bonus, a raise, more vacation days, or some other greater benefit) in exchange for signing the new contract. Otherwise, the agreement will not be enforceable.
In addition, the terms of the contract cannot be unlawful (e.g., in violation of the employment standards legislation) or unconscionable.
So what are some strategic considerations when preparing contracts in light of the pandemic?