Alternative Dispute Resolution in Employment Law – Part 1

The practice of law has changed.  The days of the gun-slinging Harvey Specter-esque litigator, sipping single malt scotch whiskey and ready to obliterate his opponent at a moment’s notice, has given way to a new breed of tech-savvy, collaborative and cost-conscious lawyers who are more concerned with serving their clients’ personal and business needs than delivering memorable zingers in the courtroom.  

There is still a time and a place for the Harvey Specters.  Certain conflicts are unresolvable and require the full arsenal of “bet the company” legal mercenaries.  But business, technology and work culture have evolved. Employment lawyers know that it often is not worth the cost, uncertainty and effort involved to demoralize an adversary in the courtroom.  Working towards collaborative solutions and front-loading the risk of litigation are often in everyone’s best interests. In this post and next week we will explore Alternative Dispute Resolution in Employment law.

First, we’ll take a look at some of the formal ways of resolving workplace disputes.

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Whose device is it anyway?

Technology continues to blur the lines between our personal and work lives.  How often have you answered a client email on your work laptop, only to receive a follow-up question via text message on your personal phone?  

Many workplaces have adapted to the fluid use of technology and encourage their employees to use their own technology at work through bring your own device (BYOD) policies.

BYOD can provide many benefits to workplaces and employees. It has been shown to improve efficiencies and worker engagement while powering a more innovative, productive and collaborative workforce.  

As the use of mobile devices increases relative to personal computers, and as organizations continue to embrace the benefits of remote working arrangements, we believe that BYOD will continue to trend upwards.

But what are some of the legal risks and best practices surrounding BYOD which organizations should be aware of?

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When employees revolt!

Microsoft employees recently made the news protesting the company’s $479 million contract with the U.S. Military to create mixed reality headsets using the HoloLens platform for use in war. Click on the link if you have no clue what we are talking about, but these are basically headsets that blend reality and virtual reality into the wearer’s experience. Anyway, whatever it is Microsoft is working on something for the U.S. Military that, using this technology, “provides increased lethality, mobility, and situational awareness necessary to achieve overmatch against our current and future adversaries.”

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The price of workplace harassment

Valentine’s Day has us thinking about romance. In the mind of an employment lawyer, the leap from romance to harassment is a short one, and so that is what our post is about today. Harassment is not a new topic for us. You can read our past posts on sexual harassment, employer obligations regarding harassment and the time we waste on sexual harassment for a primer on the subject.

Today we are going to take a look at what comes after the harassment has been reported, investigated and substantiated. What are the consequences of harassment?

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Rise of the machines in the workplace

Here Come the Robots

Is your workplace about to be automated? A recent study by McKinsey & Company suggests that about half of the activities (not jobs) carried out by workers could be automated right now with currently available technologies.  The study assessed 2000 work activities across more than 800 occupations, including mortgage brokers and CEOs.  Those are a lot of activities affecting a wide range of occupations.

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References: Is honesty the best policy?

As kids, we learned that telling the truth was the right thing to do, but ask a lawyer and this golden rule is likely to become a little bit tarnished! However, a recent decision about honesty when providing a former employee with a reference might make us all feel a little better about telling the truth.

Kanak v. Riggin

On January 17, 2019, the Supreme Court of Canada denied leave to appeal in the case of Kanak v. Riggin. In 2018, the Ontario Court of Appeal upheld the 2017 trial judge’s decision which gave the thumbs up to honesty when it comes to giving employee references.

In this case, Ms. Kanak, a former employee of Mr. Riggin, was offered a job conditional upon a positive reference check. Ms. Kanak gave Mr. Riggin as her reference. When contacted by the new employer, Mr. Riggin was honest with his feedback, which led the new employer to rescind the job offer. Ms. Kanak then sued Mr. Riggin for defamation. She plead that he was motivated to make unflattering statements about her by malice, spite and a desire for revenge.

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