Inevitably, with a new year there are new resolutions. Many will be broken. However, for those employees who are both motivated and willing, I offer my top employment law resolutions to help employees.
1. Don’t set a precedent. With the recent proliferation of sites such as YouTube, 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 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, I expect a precedent decision shortly as cases make their way through the judicial system.
2. Don’t abuse e-mail. By now, most employees have commingled their personal e-mails with their workplace account. I know of few who abstain from any personal tête-à-tête via their work e-mail. While the convenience is unquestioned, exercise caution with what is written. E-mails are incontrovertible proof of what was 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 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 used confidential information to their own benefit. Whether there is a signed agreement or not, employees owe a duty of fidelity, which includes keeping confidential information 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, 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 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 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 filled 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.