These are the 10 biggest mistakes employees make

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Last week I wrote about 10 common employer mistakes. When I asked my team what they thought about employee blunders, I got 10 columns worth of material. That makes some sense, since employers have the advantage of legal counsel and are less likely to be swayed by emotions.

Here are 10 common mistakes employees make:

1) Thinking that HR is your friend, or at least a neutral interlocutor

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With apologies to all of my HR clients, let’s be clear: HR is hired to help the company, not its employees. And when it comes to employment law issues, that means making sure the company doesn’t get sued and defending against any existing lawsuits and severance offers. About 90 percent of the time, HR’s role in the severance process is to settle cases for as little money as possible, and part of that is earning the trust of employees. But their loyalty and legal obligation is to the employer, not its employees.

2) Believing that a workplace investigator is neutral or “just wants to get to the truth”

If HR representatives favor employers, investigators do so with rabid devotion. Their appointment depends on them making the recommendations the employer wants, and if they don’t, they will never receive a report from that employer again, let alone referrals to others. Their job, in most cases, is to help the employer build a justified case.

I recently had a rather tragic case where the investigator obtained evidence from the employee under investigation and then continued to seek refutable evidence until the employer’s case was irrefutable. Meanwhile, the employee was told, under penalty of dismissal, that he could not speak to anyone about the problems.

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In contrast, in the litigation process, both sides can examine each other and you only have one chance to do something. — No ongoing meetings are held until the employee calls his uncle. None of the procedural protections of a lawsuit exist in the context of an investigation. Investigations have become the modern equivalent of a corporate lynching.

If you are investigated, be careful what you say. Find a lawyer and know that the investigator is there to build a solid case. Few employees under investigation ever return to work, and the investigator guarantees that outcome.

3) Not contacting a lawyer when you are under investigation

Despite the procedural disadvantages of the investigation process, a lawyer can at least ensure that the proceedings are fairly honest and ensure that the investigator knows that a certain level of impartiality will be required. A lawyer can also be there to help when it is almost inevitable that you will be fired at the end of the process. The existence of a lawyer makes it more likely that the employer will not argue the case or at least offer severance pay.

4) Request a contract from the employer

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This is one of the most calamitous mistakes employees make. Unless you are in senior management and have unusual bargaining power – and often not even then – employment contracts are written for the sole purpose of eliminating rights that courts grant employees. Very few employees have the bargaining power to negotiate a contract that provides them with as many legal rights as they would have without a contract. In fact, employers approach contracts by considering what rights employees have legally that they would like to take away from them. — and their contracts do exactly that, whether in terms of severance pay, non-compete, right to terminate, and more.

5) Relying on severance pay calculators or any algorithm

There is no formula that accurately predicts what you will receive in court, and such formulas either underestimate the amount, causing you to accept less than you are entitled to, or, more commonly, overestimate it, leading to unnecessary expectations and litigation. Talk to an experienced employment attorney to find out the range of what you might receive and use that as a basis for settlements.

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6) Negotiating your own severance pay

There are too many mistakes and potential confessions that an employee can make during the conciliation process that will come back to haunt them if litigation becomes necessary. Also, when an employee negotiates on their own, the employer assumes that they are not willing to pay for the litigation, which leads them to offer a very low price. If an employee threatens to go to a lawyer if the offer is not high enough, the employer will not fully believe them.

If the employee goes to a lawyer later, the employer will have already taken a position on how far it will go and, for reasons of credibility, will be reluctant to increase its offer relative to what it would have done if it had dealt with a lawyer from the beginning. Furthermore, there are many things that an experienced lawyer could ask for that would not occur to the employee.

There is little difference from acting on your own, whether by hiring an inexperienced solicitor, a GP or a friend who is a solicitor. The same applies to not taking advice before filing a claim for constructive dismissal, as many employees’ views on harassment or mistreatment do not meet the legal requirements.

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7) Not listening to advice

This can take many forms, but includes doing things that unnecessarily offend your former employer so that it becomes difficult to reach a settlement. This includes listening to friends who tell you that your case is worth more than the lawyer advises, so that a settlement will not be reached.

8) Waiting too long to act after problems arise

If conduct occurs that negatively affects your work and could, for example, lead to constructive dismissal, you must act on it. If you do not, you will have tolerated the conduct and lost the opportunity to file a claim. This may include changes to your duties, position, work schedule, or even toxic treatment. You should raise issues soon after they occur so that you can be confident of your legal rights.

9) Signing an employment contract when you are already employed

For a contract to be enforceable, it must have what is called “consideration.” This means that the employee must receive something in return for what he or she is giving up under the contract. A contract signed by an existing employee without any new provisions is unenforceable, and for that reason employers offer something in return, such as an annual raise or bonus. But what is offered in return never comes close to what the employee just gave up.

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If an employer asks an employee to sign a contract, it is almost always better for the employee to refuse to do so. And if the employer fires the employee in response, that will be grounds for wrongful termination. – which It is much better than signing a contract that reduces your severance pay to the minimum set by labor standards (say, a quarter of what you would have received without a contract) and then being fired.

10) Not documenting workplace concerns when they occur

If you are going to complain about harassment or events that led to constructive dismissal, you can assume that the employer’s witnesses will deny your allegations. You are much more likely to succeed if you have contemporaneous recordings of what happened, so that you can be very specific and much more credible in your allegations.

Howard Levitt is a senior partner at Levitt LLP, an employment law firm with offices in Ontario, Alberta and British Columbia. He practices employment law in eight provinces and is the author of six books, including Law of Dismissal in Canada.

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