It may be that the phrase “by providing you with only the minimum statutory amount of written notice required by the ESA” saved the clause, as it purports to provide the minimum required notice. However, that language is also in Baker.
Further, providing written notice of termination, while a requirement, is a different issue from the statutory limits on when employment can be terminated. Just because an employer provides the right amount of notice, in writing, does not necessarily mean that the termination did not breach the ESA.
For instance, providing proper notice for an employee on parental leave will not make the termination lawful. Finally, saving language has been found not to save a termination clause that breaches the ESA, so it can’t be said that that is what tipped the balance in Wayfair.
Ultimately, since the court did not provide reasons for its distinction between Wayfair and Dufault/Baker, we do not expect that it is a decision that will be followed. If anything, it creates unnecessary murkiness.
Uncertainty around enforceability
Given the uncertainty Wayfair created, and given that it is unlikely to be followed, employers are advised to continue avoiding extraneous language in their termination clauses. Even if Wayfair is followed, there is no reason to have language such as “at any time” and “sole discretion”.