THE QUESTION

Is it illegal to record your conversations at work?

THE ANSWER

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It is not illegal to record your own conversations with others, even if you do not have the other party's consent. These records can be used as evidence in a lawsuit. However, it is illegal to record conversations that you are not participating in, such as a meeting between your boss and a colleague that you did not attend. This is contrary to the Criminal Code of Canada and you could be charged with an offence.

THE QUESTION

I was recently laid off from my job at an insurance company. I was told the sales in my department were low and therefore they were closing my department of four people. I was given seven weeks of severance pay. I worked for the company for three years and four months. I don't believe that the severance package is just. However, I'm not sure what my next steps should be and how I should negotiate a better severance package.

THE ANSWER

Fair severance packages take into account your age, tenure, position and the availability of other jobs at your level. The older you are and the longer you worked for the company, the greater your severance entitlement. Courts also place a great deal of weight on precedents – past cases – regarding employees with similar job characteristics.

Whether you should negotiate to try to improve your package is a function of how good (or bad) your package is to begin with, and whether you feel comfortable asking for more. Generally, most of the terms in a severance package can be negotiated and improved – if done correctly – without much risk that asking for more will result in getting less than you were initially offered.

You can negotiate a package directly with the company by speaking with someone in charge or, if you are not comfortable acting on your own, then you should hire an agent or lawyer to do it for you.

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THE QUESTION

I am currently employed with a small company and still on my probationary period. I have been offered a job with a much bigger company; however there is a non-compete clause in my current contract that specifically mentions this company. I want to make sure that I will be okay to leave my current position.

THE ANSWER

There is a belief in Canada that employers cannot prevent you from working in your industry. That view is mistaken. If there is a properly drafted written agreement that provides for a short-term restriction working within a certain industry, or group of companies, a judge may very well enforce it.

The key is whether the written agreement guards the company for the least amount of time necessary to protect a legitimate business interest. If not, it will probably be set aside.

The only way to be sure about the strength of this particular clause is to have it reviewed by someone with experience in this area. Otherwise, you are just guessing and, in this context, that is a very bad idea.

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Daniel A. Lublin is a partner at Whitten & Lublin, representing both employers and employees in workplace legal disputes.

E-mail: Dan@canadaemploymentlawyer.com

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