Author: Daniel A. Lublin
My top employment law resolutions to help assist employees inspired to change.
1. DON’T SET A PRECEDENT
With the recent proliferation of online broadcasting sites such as Utube, Myspace and Facebook, more employees will be faced with dismissal based on a web posting in the coming year. Many believe in the fallacious notion that off duty conduct cannot justify discipline. They are mistaken. Off duty conduct that, in one way or another, demonstrates a revelation of poor character or is injurious to the employer’s interests can result in a supportable termination. While I am unaware of a Canadian case yet to set the tone, I expect a precedent decision shortly as cases make their way through the judicial system.
2. DON’T ABUSE EMAIL
By now, most employees have successfully commingled their personal emails with their workplace account. I know of few who entirely abstain from any personal tête-à-tête via their workplace email. While the convenience is unquestioned, exercise caution with what is written or received. Emails are incontrovertible proof of what was actually said and accordingly, they make excellent evidence in a lawsuit.
3. DON’T BELIEVE IT JUST BECAUSE IT IS IN WRITING
Frequently, I negotiate successful severance packages for employees who improvidently signed away their entitlement to severance. Many species of agreements in the workplace are not infallible simply because they are both in writing and executed. Courts are cognizant of the inequality of bargaining power between employer and employee and have developed a series of legal ‘tests’ to invalidate an otherwise valid accord.
4. DON’T MISUSE CONFIDENTIAL INFORMATION
Employment law texts are replete with examples of employers suing ex-employees who knowingly or unknowingly used confidential information to their own benefit, or to the benefit of their new employer. Whether there is a signed agreement or not, employees owe a duty of fidelity, which includes keeping confidential information, such as client lists and trade secrets, confidential.
5. DON’T ENGAGE IN OFFICE ROMANCE
Times have changed, and gone with them are the days when office romances are faux pas. Nevertheless, when a relationship in the workplace pervades the workplace relationship, employers still end up in court and employees still complain to the Human Rights Commission. While some companies prohibit office romance through policy and others by practice, relationships at work are always a recipe for disaster.
6. DON’T NEGLECT POLICY MANUALS
Most organizations have some form of policy manual, prohibiting a gamut of behaviour. For many, the manual simply collects dust. For others, the rules are rigidly applied and the proof is in the pudding. Despite this, in situations of discipline, I typically review the manual’s language prior to opining on the merits, as judges would prefer to rely on clear and unequivocal language when the facts or arguments of each side’s case are otherwise proportionate.
7. DON’T CONDONE SERIOUS CHANGES
An employee’s lassitude is an employer’s ally when implementing serious changes. Fundamental changes not contemplated by contract or given with insufficient notice can give rise to damages, but only where the employee properly rejects the change. Don’t take this to mean that any change should result in registering a complaint. Rather, in the employment law world, a predilection to condone changes is a prescription for losing the case.
8. DON’T TOLERATE ABUSE
Now more than ever, the Court’s docket is full with employees complaining about their alleged workplace harasser, typically a former boss. Harassment based on immutable characteristics such as race, sex and religion is discriminatory and illegal. Non-discriminatory harassment is equally perverse. Unfortunately, there are more non-meritorious claims than otherwise. Employees with a legitimate grievance should, however, remain undeterred.