If a business is sold and the new owner keeps the employees, have they entered into a new contract of employment? This is a question that we are asked all the time and the answer, as it often is, is that “it depends”. The primary factor in the analysis will be the nature of the sale; was it a share purchase or an asset purchase.
It’s now 2019, and while Me Too is part of our vocabulary now, you may not hear it every day. But that doesn’t mean that it isn’t still making news.
Last Fall we wrote an article about what happens when those accused of sexual harassment try to make a comeback. At the time, comedian Louis CK was starting to perform stand up again, and Jian Ghomeshi had just published an essay only mildly accounting for his actions. We wondered what would happen when, on a larger scale, those publicly known to be accused of harassment try to return to the workplace.
Well now we have a better idea.
In 2017, John Lasseter, the Chief Creative Officer of Pixar and head of Disney Animation Studios, took a leave of absence after what he called a number of “mis-steps”. Lasseter, best known as the director of Toy Story, didn’t specify those missteps but they did reference ‘unwanted hugs’ and other gestures that ‘crossed the line.’ Lasseter left Pixar at the end of 2018, but chose not to spend too much time in exile.
In January of this year, he was hired on as the new head of Skydance Animation, with an employment contract that certainly raised eyebrows. The head of Skydance said Lasster “has given his assurance that he will comport himself in a wholly professional manner”. Lasseter’s contract ensured that he would be responsible for paying the legal costs that arose from any future misbehaviours. It also included a clause indemnifying Skydance from any of his past behaviours that they didn’t know about when they hired him. Skydance claims that their contract is “iron clad”
But it wasn’t strong enough to protect against the scrutiny of Lasseter’s conduct.
Recently, Oscar winner Emma Thompson, who was scheduled to lend her voice to an upcoming animated film called Luck, very publicly pulled out of the project because she refused to work with Lasseter.
In a letter published in the LA Times, Thompson said, quote, “If a man has been touching women inappropriately for decades, why would a woman want to work for him if the only reason he’s not touching them inappropriately now is that it says in his contract that he must behave ‘professionally’?”.
Thompson closed her letter by stating: “I am well aware that centuries of entitlement to women’s bodies whether they like it or not is not going to change overnight. Or in a year. But I am also aware that if people who have spoken out — like me — do not take this sort of a stand then things are very unlikely to change at anything like the pace required to protect my daughter’s generation.”
Thompson’s stance may appear bold, but the story raises some interesting questions about where employers go from here. While Skydance’s contract with Lasseter may have been “iron clad,” it wasn’t enough to shield the Company from bad publicity, with its hiring choice severely criticized.
This asks the question – what should happen to those #MeToo accused looking to come back to a workplace?
Ontario employers cannot discriminate based on an applicant’s record of offences, such as criminal convictions they have been pardoned, but they can make hiring decisions based on fit. There is no legal obligation to hire an individual if they simply are not the right fit for the company.
If an employer does want to be an individual’s second chance, they are responsible for monitoring that individual just like they are any employee, to ensure that they are creating a safe workplace.
For employers questioning your next hire, call us before you make that offer. We can help you review the agreement you’re about to put forth, and make sure proper policies are in place to protect your business.
For employees about to accept that next offer, we would be happy to review it for you and help you understand what you’re signing. That contract determines one of the most important relationships in your life, so it’s always best to know what you’re signing up for.