Let your inner employment lawyer out

By Stuart Rudner

“Let your inner employment lawyer out”: That became the theme of my presentation at the Employer Council conference put on last week by the Workforce Planning Board of York Region and Bradford, West Gwillimbury.

This impressive conference took place in Woodbridge, Ont., and featured a number of excellent speakers. I was honoured to be one of them and as I thought about how to package my presentation on “Employment Law: From Hiring to Firing,” I looked back to the original email I received from an organizer asking if I would be interested in participating.

He described the plan for the day and, in the context of inviting me, added "What would an employer conference be without a lawyer's perspective?"

I extrapolated from this and encouraged the audience to remember that just as every employer conference should have a lawyer's perspective, every employer should also adopt a lawyer's perspective.

Employers have many roles and functions, and I encouraged the audience, as I have encouraged many clients, to take a step back whenever they are engaging in something that will have repercussions on an employment relationship and consider how an employment lawyer might advise them to proceed.

Another way to think about it is to consider how their decision, and their conduct, would be viewed by a court or tribunal a year or so down the road.

In many cases, while the employer will have perfectly legitimate intentions, an employment lawyer will be able to explain that a different approach would be preferable because the desired approach, while perhaps best for many purposes, will expose the organization to unnecessary risk.

Hiring challenges

I provided a few examples. In the hiring context, I discussed what often happens in an interview. When a candidate is brought into a meeting room, it is normal for people to engage in friendly chitchat before getting down to business. This chitchat can extend from civil questions such as "How are you?" to "How was your summer — did you have some time to spend with your family?" and then, it is not much of a leap to questions such as "Are you married?" or "Do you have any kids?" Other "natural" questions can include asking where the person is from or, in January, whether she celebrated the holidays with family.

These questions, while typically innocent and innocuous, can elicit information that relates directly to grounds that are protected by human rights legislation. An unsuccessful applicant might think back to the interview and recall mentioning, in response to a question about kids, that she is hoping to have kids soon. She might conclude this was a factor in the decision not to hire her since the employer may not have wanted to deal with pregnancy and parental leaves.

This will leave the employer with the obligation to prove a negative — that it did not make its decision based upon prohibited grounds. This can be quite expensive, even if you win.

Unfortunately, human rights claims are becoming more and more common. I say unfortunately because many of them are without merit and they clog the system and cause valid claims to be delayed.

In the context of the interview, as an employer you may want to ask such questions in order to get to know the applicant. However, an employment lawyer would caution you to avoid any questions that relate to protected grounds and potential exposure to liability.

Poor performance

The second example relates to documenting poor performance. Unfortunately, managers and business owners are typically not well-trained in the area of managing employee performance and documenting concerns. As an employment lawyer, I rarely see negative comments in performance reviews or documentation of performance related concerns in an employee's file.

Even when I am told by an employer that the employee in question has been "a disaster since day one", his annual reviews are typically average, with no indications of concern.

It's much easier to not engage in awkward conversations about performance concerns and many employers will choose to avoid those difficult conversations, partially because it will be easier for them and partially because they fear upsetting the individual. However, from an employment lawyer's perspective, it is important to document all concerns so that if the situation does not improve, the employer will have documentation to support a dismissal for cause if it is otherwise appropriate. At the very least, it should be considered.

Dismissals

Another example I gave was the dismissal of the above-mentioned chronically underperforming employee. Assuming that the performance concerns have not been documented and the company has been advised by an employment lawyer that dismissal for cause is not a viable option, it may decide to simply proceed with a dismissal on a without-cause basis.

In the course of the termination meeting, the individual might ask why he is being let go or ask for another chance, and many employers, trying to be nice, will offer the employment equivalent of "it's not you, it's me" by saying the reason for dismissal was that the position had been eliminated.

However, when the individual is replaced and, inevitably, finds out about it, he will then be upset he was lied to and at least consider a claim based upon a breach of the employer's duty of good faith in the course of dismissal, since dishonesty is considered to be bad faith.

In this context, an employment lawyer would strongly advise you not to say anything about the elimination of the position if it's not true, since it can expose the employer to liability just for attempting to spare the individual's feelings.

Intern dilemmas

Another example that came up as a result of discussions prior to my presentation was the issue of unpaid interns. I have written about this in a past blog post, Calling a worker an 'intern' is not a magic bullet but, in summary, unpaid internships have come under substantial scrutiny in recent times and Ontario’s Ministry of Labour has clamped down upon supposed internships that were really ways to get free labour.

Days after I was quoted in the Toronto Star on this subject, explaining that only true internships can be unpaid, I received an unsolicited email from an individual offering to "intern" in our law firm for free.

As an employer, it was quite tempting to accept this offer. However, my own inner employment lawyer reminded me this would expose our firm to potential liability and, frankly, substantial embarrassment if it became known our employment law firm had been convicted, or even accused, of a breach of the Employment Standards Act, 2000.

The bottom line is most employers are not lawyers. It is critical to partner with a lawyer who specializes in employment law and develop an ongoing relationship in which the employment lawyer can help you not only to avoid liability but maximize your rights as an employer.

Employers that routinely work with employment lawyers will develop a sense of what the lawyer will recommend, so I encourage them to let that "inner employment lawyer" out and take her perspective into account when doing anything that might impact the employment relationship. Even if you don’t follow the advice of the lawyer, she should at least be part of the discussion.