Fantastic. Employment law is critical work. There's no question. And I remember when I met you initially, Amy, when you were at your last firm, I was doing some work for a couple of your firm's clients, in the area of career transition. And over that time, because I worked with these customers or these clients actually for a number of years, I learned, you know, really the importance of legal counsel for two things—to protect the interest of the business while ensuring employees are fairly treated, because obviously how employees are treated impacts the business's reputation and their brand, if you will. And also, you know, employers want to support their employees who may be exiting the business. And I know this sounds obvious, but in my own work in HR consulting, I've witnessed CEOs and their teams treading into some tricky areas. So with that sort of lead in what employment trends are you currently seeing from your clients and what's impacting your business?

Amy Bradbury

Um, I think, leaving aside the most recent challenges that we've had with the COVID-19 pandemic—a lot of employers have been struggling with that. One of the largest issues my clients face is attracting and retaining good employees—particularly employees at the executive level. They struggle to find employees with the right skillset who will fit well within their business. A lot of my clients invest a lot of money in recruiting, again, especially at the executive level. Um, and it's disappointing for them when, when the hiring doesn't work out. And then there are lots having to spend that money again. So I think it's really important for employers and employees to start the employment relationship off on the right foot and make sure that both parties understand the nature of the employment and what the employer is looking for, and that the employment will be a right fit for both parties.

Maureen Farmer

Absolutely. I mean, we want it to be a win-win outcome for both the employer and the employee and there is a significant investment that organizations make while recruiting, selecting, onboarding, and training, and some estimates, according to the society of human resources management is anywhere between 90 and 200% of the person's annual salary. So that's a huge investment that organizations are making, you know, to bring on the right type of talent. And I myself have worked in large corporations where we had undergone a national search for example, and brought in an executive from another part of the country. And on two occasions, in fact, and within two years we lost both of those individuals. So it has a huge impact, not only on the employer, but also on the employee as well, because both of these uprooted their families to move like literally from the west coast to the east coast. And, you know, it's just a huge loss for, for everybody overall, because at the end of two years, there's very little to account for it, especially at the executive level. So given that in your experience, Amy, what do you think both organizations and candidates can do to ensure that there's a right fit?

Amy Bradbury

Well I think that both the employer and the candidate should spend a fair bit of time getting to know the other side and making sure that it is going to be a good fit. And that includes things from an employer's perspective, like having more than one interview with the candidates, having the candidate interviewed by different members of the management team and getting the feedback from those different interviews, um, everybody has a different perspective and I think the more people who meet with the candidate and can get an assessment of what they think is a good thing and then if everything is going well, bring the candidate into the workplace and have them sort of see the operation, what goes on, you know, during the course of a day and see how that interaction goes.

But also I think candidates often focus on salary or benefits. But I think they should be looking for information about the workplace itself and how the employer approaches work, what their culture is, um, how the employees interact and work together and what the employer does to help an employee grow in their career and in their professional development. I think the more the candidate knows about the workplace culture, the better they'll be able to assess whether it is a place where they can be long-term and it can help the employer get a better idea about the fit as well

Maureen Farmer

Really interesting advice because one of the individuals I was working with, it was a senior level employee. What he did—he was invited to a team dinner with the then CEO of the company. It was a large company and they were recruiting this individual. And during dinner, the CEO kept looking down at his iPhone and answering or sending texts throughout the entire dinner. And so my client took note of that and it wasn't the exclusive reason, or the only reason he turned down the job offer, but it was part of it because he felt that if the CEO was going to be on his phone during the dinner, what would it be like, you know, trying to get access to this person on a daily basis. So there's these little things that both employers and employees can do to sort of test culture.

Would you agree?

Amy Bradbury

Yeah. Yeah. And as I say, those things are little red flags that should give the employee pause and it makes them think about whether this is somewhere where they really want to be and does it work with their life and what they're looking for? And as you say, one of those things all by itself, probably isn't going to cause an employee to turn down a job offer, but if they start to see more of them and there are several things, then all of the things can come together and keep the employee from taking a job offer. And I think that's quite appropriate. I think, you know, as I say, people are looking for a longterm relationship on both sides. Um, most people are looking for that place where they will spend a fair number of years working in growing and developing. And so it's important to take that time and make sure that it is the right environment and the right fit for you no matter how attractive it looks.

Maureen Farmer

Exactly. Yeah. So, I mean, in terms of the due diligence process, what would you say is the single biggest mistake that employers make when they're completing their due diligence for hiring a new employee? So, you know, the due diligence process works differently for more senior level employees, say at the executive or board level.

Amy Bradbury

I think that there are some differences at the executive level, but there are a couple of mistakes I see employers make all the time and it's true for almost every employee they hire. Um, the first is not providing for a probationary period, for the employee that they're bringing on. And this, I think a lot of times people are focused on, again, the terms and conditions of the employment, the salary, the vacation, you know, the bonuses rather than focusing on what happens if this doesn't work out. And so it's surprising to me how many times I see that an employer has not provided for any probationary period at all, or they provide for a probationary period that's just inadequate. A lot of employment contracts I see have a probationary period of three months, and that might be sufficient for a frontline type of employment. But when you're getting into executive and board level positions, you need a lot more time to assess whether that senior level employee is doing a good job. Um, the tasks that they do often take several months to even see them perform them all and make sure that they are doing a good job on all of them. And it can take several months to determine whether they are respected by the people who work with them or whether they're a good fit. Of course, I do see as well though, and this goes back to the difficulty with recruiting, uh, that some employees are not prepared to sign a contract that's got a probationary period in it. Uh, they may be leaving another job where they have fairly secure employment and they don't want to risk being terminated during a probationary period with little or no compensation for that termination when they have other employment already.

And so sometimes employers will make that decision to waive their probationary period to secure a really good candidate, but that's risky. Uh, but I do see it happen. And then apart from the probationary period, it's really amazing to me, how many employees get hired without any comment in the employment contract or letter of offer about what happens if the employee has to be terminated and quite often the contract doesn't contemplate that at all. Um, and so you are less than with common law reasonable notice, which can be very expensive, particularly again, when dealing with a higher level executive employee. And there's a third area that I think comes up particularly with these executive level employees and that relates to restrictive covenants and whether the employee is coming to them with some restrictions on the work they might be able to do.

And so restrictive covenants are things like non-solicit and non-compete agreements. Um, and so a non-solicit of course, is it can prevent the employee from working with former clients with their old employer or recruiting former clients or recruiting former employees. You know, they may have a coworker who they work very well with and a non-solicit may prevent them from soliciting that employee to join them as well. Um, and then, whereas a non-compete is even more restrictive. It can prevent an employee from working at all in a particular area or a particular business. Um, and that's usually for a set period of time, both of those types of provisions usually have a time limit on them. And so, you know, an employer may find a very attractive candidate and then find out that they are bound by these restrictive covenants that would prevent them from working in the area, or it might prevent them from trying to bring clients in as they were clients at their old employer.

Now, these types of provisions, um, courts don't like to enforce them, they're seen as a restraint of trade, particularly the non-competition provision because it keeps an employee from working in the area where they have expertise and prevents them from earning a living. But the courts do look at whether those types are needed to protect legitimate business interests. And so that depends on the type of work that the employee was doing and the type of information they had access to. So they can be upheld, um, in certain situations. And, uh, particularly if the old employer needs that kind of protection, they are more enforceable generally against those higher level executives, because they have more knowledge of, uh, the plans of the business of their former employer. Uh, they have insight information about pricing or business plans, which, you know, can make those clauses necessary to protect those legitimate business interests. And so employers or the new employer that's looking to hire quite often, doesn't ask the questions about those types of restrictions or commitments that might exist, you know, that doesn't necessarily prevent the employer from hiring that employee. But I think that the employer needs to have a look at the language and assess its enforceability and make a decision about whether they want to hire the employee and risk having litigation started over those provisions or be involved in that type of litigation.

Maureen Farmer

These things tend to come up later on, you know, in the process. So, basically, is it up to the the candidate to disclose these covenants to the new prospective employer?

I'm currently working with an individual who has a non-compete however, he was recruited by that organization where he signed the non-compete and was only employed there for 90 days. And then he and his entire team were terminated without cause. So within a 90 day tenure and a non-compete clause, he's concerned that the new employer he's being interviewed by this new organization may not consider his candidacy. So now he's in that situation where, you know, he has to disclose the fact that he has the non-compete, but after, you know, 90 days, he's had it reviewed by a lawyer and so forth, but it's just that difficult, delicate Texas two-step that employers and candidates need to think about and do their due diligence, you know, in that moment.

Amy Bradbury

Yeah. I'm seeing more and more that, that is part of the employment contract that employers are asking—requiring employees to disclose that, but if the employer doesn't do that, I think that employees risk really starting the relationship off on the wrong foot if they don't disclose it and they can, you know, the employee can explain the situation, they can provide the language to the employer. Um, and the employer can then, as we said before, make a decisions about whether they want to take that risk. I'm often contacted by employers when they're in the final stages of hiring and asking me to look at a non-solicit or a non-compete and comment on what I think about its enforceability and in the case of the client, you're working with, uh, you know, to have such short tenure of employment, and then expect that the employee can't work for a competitor, you know, for probably a longer period of time than they were actually employed, would really affect the enforceability of that provision. Um, but I think, you know, advising employers on that situation ahead of the hiring is really the way to go. And, you know, I see situations where an employer receives a cease and desist letter from the council for the employee's old employer. And, you know, that really doesn't set a very good tone for this new employment relationship. Uh, quite often the employer is more than willing to, you know, defend against that and to support the employee, but it really does affect the employment relationship starting out.

Maureen Farmer

Oh, I agree. 100% percent. So on the employer side, what would you recommend to an executive job candidate? Um, what is the biggest oversight that you see these individuals make when considering a drop-off or negotiating that contract?

Amy Bradbury

I think a lot of times, the candidate is really anxious about getting the job and starting that new chapter of their life. Um, and so they don't take the time to really look at the offer that's being made and reviewing all of its terms. Um, employees are often focused on things like benefits and salary and they don't think about, uh, looking at those termination provisions that we talked about earlier or looking at whether there could be restrictive covenants that could affect their ability to find other employment if they move on.

But apart from those sort of contractual things, and again, I think this goes back to what we were talking about earlier—I don't think candidates ask enough questions about professional development and corporate culture, how the employer handles issues and concerns that might come up in the workplace, how they handle conflict and so employees often accept a job offer and then find themselves working in an environment that's really unpleasant or doesn't allow them to develop their career the way they thought. Again, I think, you know, employees or candidates—when they're trying to be agreeable with this new employee, or they're trying to show the employer that, you know, they're easy to work with and there's not going to be any pushback on things, but ultimately they may be doing themselves a real disservice and not pushing on those issues again, where they see those red flags. I think there is room for employees to do that. I think particularly at the executive level, um, employers have put a lot of time and effort into the recruiting. There is room for those employees to discuss those issues and to negotiate terms that work better for them. I think ultimately it will be a better relationship and both sides will be a lot happier.

Maureen Farmer

Absolutely. And I think that it is expected at that level, that candidates will negotiate, although depending on what situation the employee is in. And here's an example, a really interesting example, I once worked with an individual who had accepted a senior level role in Toronto. He is originally from Europe and, uh, because of where he was from, he was not a Canadian citizen, he was sponsored by the company. Anyway, he was thrilled to come to Canada. He settled in with his wife and three children, found a great job. Um, and his wife found a great job. He already had the job. And soon after he started, during the onboarding, he discovered that  30% of his job would be business development. And he was hired to do operations. And so given that he had no business development experience or training and had no network in Toronto, you know, it puts him in a pretty tight bind. And, uh, he was quite upset about the discovery. He had already signed the contract. And, you know, he was stuck in a hard spot. And of course we all learn from our own clients and from our own experiences. And, you know, based on his experience, I'm always weary of when the candidate doesn't ask any of those questions.

I always recommend that the candidate asks questions such as (you have to find your own way of saying this, of course) is there anything required in the role that's not included in the job description or the employment contract? And I think that's a pretty fair question. You know, I think a lot, as you just said, many people don't think to ask these types of questions because they're eager to start the job and get caught up in the excitement of it and want to start off on the right foot.

So, I always recommend that the candidates ask a series of questions almost as though to test the culture as you're moving along in the process. So for example, if you are concerned that you may not get access to your CEO or whoever the decision maker is, you can always test that by asking for another meeting before you sign the contract, there's all kinds of things you can do. As you mentioned before on the employer side, where we bring the candidate in to be interviewed by sales, by finance, by legal, by all the different areas, functional areas of the organization, the candidate can actually do the very same thing as well.

Amy Bradbury

Yeah, no, and I think that's a great approach. Um, you know, and if the candidate doesn't like what the employer is saying in response to those sorts of inquiries, it's probably a really good indicator of what the employment relationship will be like. Employers should be willing to provide the information being asked for and try to make the employee feel very comfortable with the situation they're coming into and with what the employment is going to look like. And if they're not prepared to do that, that's again, probably another red flag.

Maureen Farmer

Oh, red flag. I mean, even, you know, in midst the excitement and sort of, the desire, you know, to join this organization, because we all have sort of an idealistic expectation of what the employment relationship is going to be like. And I think that the more we can test those red flags, the more both parties are going to be happy with the long-term. So Amy, as you know, at the time of this recording, um, for the benefit of the listener here, we're experiencing the challenges of the COVID-19 pandemic...what are you seeing in employment law trends today relative to the pandemic?

Amy Bradbury

Well, yeah, the COVID-19 pandemic has really raised a lot of new and unique issues in employment law. Uh, I've spent a fair bit of time in the last few months thinking about different solutions for problems and thinking about things in a completely different way, because there are so many additional considerations that you have to add into your normal approach to things. Um, and when this all began, obviously employers were laying off employees, businesses were shutting down. So, I was dealing a lot with those sort of issues and what that looked like. Um, other employers were scrambling to set up employees to work from home and making sure they had all the equipment they needed to do that. Um, or they were trying to ensure the proper social distancing in their workplaces if they were going to stay open. And so I had a lot of phone calls about having employees work from home and how you can ensure those employees are being productive and making sure the work is getting done.

As well as a lot of home calls about constantly changing requirements that were coming out in terms of social distancing and cleaning and things for employers who are staying in their workplace. Um, but you know, after that sort of initial wave of problems and everybody kind of settled into what they were doing, there was some support coming forward from the government for payroll. And some of the employees were looking to recall their employees back to work and a lot of them have had issues with getting those employees to come back. And for employees that are at the lower end of a pay scale, uh, a lot of them are happier and in some cases feel safer, staying home and getting the third benefit that the government has provided for. So, you know, an employer recalls the employee back to work, the employee refuses to come, and the employer is left in a situation where they are having to terminate those employees. Um, I think this is pretty short-sighted on the part of the employee. Um, those Cerb benefits will not go on forever. Um, and I think employees may be a little naive to think that work will be there when they're Cerb benefits run out. Um, but I think the larger issue, you know, as we move forward and everybody's realizing that this is something that we are going to have to continue to live and work with for a long time, you know, how are we going to reopen our businesses and work with social distancing and all the other requirements of increased cleaning? Um, a lot of workplaces are not set up to have employees six feet apart all day long. And employers have to look at their workplaces and try to figure out how they can maintain that social distancing.

Some employers are looking at having staggered work hours so that all the employees are not in the workplace at the same time, but I think the one really big thing that has come out of this is that employers have learned that the technology is there and available to have employees work from home and that employees can be trusted to do that work from home and be productive. Um, so I expect that a number of employers will actually move to having some work done at home on a permanent basis. Um, either having employees report to work on a rotating basis...maybe be in one week and out another week or they may just be home permanently. The other thing that I think we will see is that some employers may decide that they're going to reduce the size of their workplaces—reduce the amount of office space they have as employees work from home.

Now working from home has its own issues, and we could probably do another one of these calls, just talking about all the things that could come up in that. Um, but I think seeing them the last few weeks that there are a lot of options available for people to carry on business without meeting face-to-face. And I think as people become more comfortable working that way, there will be fewer and fewer workplaces that are operating Monday to Friday, nine to five, with the full workforce in them. So I think, you know, these changes may have been sort of slowly coming anyway, but I think, you know, this pandemic has forced us to make the changes. And now we realize that we can operate and change our businesses and work in a different way. So I think that this pandemic will have a long lasting effect that goes beyond the pandemic itself. And when there is a vaccine found, I think some of these changes will continue to exist.

Maureen Farmer

I agree. It certainly has been a renaissance in terms of the employment trends in the labor market. There's no question organizations who had strict policies around working from home, not working from home and meeting clients face to face have been forced to do that. So, it's been a transformation for sure.

And so Amy, it's been an absolute pleasure to have you here today. I've enjoyed the conversation and what's the best way for individuals to get in touch with you if they would like to contact you directly?

Amy Bradbury

Probably the best place for people to contact me would be at my email, which is a Bradbury, uh, B R A D B U R Y @wickwireholm.com.

Or they can call my direct line at work, which is 902.482.7010.

They can also visit our website, which is wickwireholm.com to see my profile and the other lawyers in the office who work in our labor and employment group.

Maureen Farmer

That's fantastic. Thank you so much.

And if the listener wants to get in touch with Maureen at Westgate, I can be reached at maureen@westgatecareercoaching.com and our website is westgatecareercoaching.com.

So that's all for today, Amy. Again, it's been a pleasure and I hope to get to do this again sometime.

Amy Bradbury

Thank you, Maureen. It's been a real pleasure speaking with you as well. Take care.

Maddison Shears (producer)

Thank you for tuning in everybody. Just a little disclaimer that we wanted to share. This recording is intended to keep our clients and friends informed of developments in the law and emerging issues. It is intended for general information purposes only and in preparing and circulating this recording, Amy Bradbury is not providing legal or other professional advice. We invite you to reach out to Amy or Maureen. If you have questions about any issues raised in this recording, you can contact amy@wickwireholm.com or call her at area code 902.429.4111. You can contact maureen at maureen@westgatecareercoaching.com. Thanks again for listening everybody.