the future of employment law

The Day After Tomorrow: the Future of Employment Law

Dan MichalukJanuary 27, 2011Alberta Law Conference

The Future of Employment Law


• Pressure to govern information on corporate systems

• The “virtualization” of workplace harms

• Job stability and departing employees


Pressure to Govern Information Systems

• What’s this issue about?

• There’s a tension between employees and IT

• Employees want choice and functionality

• IT wants uniformity and security

• If IT can’t compete with non-system options,

employees will go outside

• That results in a loss of control over information



• There’s an “information governance” movement afoot

• Growth in volume of stored information

• Post-Enron corporate governance

• E-discovery requires control of corporate information

• More privacy regulation



• But control is made harder by a number of forces

• The “cloud”

• Mobile storage media

• Mobile devices



• Implication for employment solicitors

• The acceptable use policy is not a sufficient

administrative control

• New policies and protocol• Internet publication policies• Mobile media policy• Personal device policy• Departing employee protcol



• Implications for employment litigators

• The “get it back” engagement

• Rests on detinue (and breach of confidence)

• Must make a clear and specific demand for “return”

• Should reckon with privacy implications of inspecting

a “mixed use” device

• Usually involves retaining a computer forensic

specialist


The Virtualization of Workplace Harms

Josie is a fire department member who has gone though some tough personal circumstances. One fall evening she’s caught driving 140km down a side road under the influence and is charged.



The story runs in the news, and is re-posted by a local citizens’ advocate. Over the next week about

50 others (all anonymous) post comments. The dialog degrades quickly to one about the members’ sexual reputation. Defamatory comments are made about her and other

members.

What’s a fire chief to do?



• Duty to provide a safe and harassment free workplace

• Under human rights legislation

• In some provinces under health and safety

legislation

• There must be a nexus to the workplace

• If there is, there is a duty to take reasonable steps to

provide a safe and harassment free workplace



• A defamation claim is about damage to reputation

• It is a very personal claim, about vindication of

reputation

• It is hard on plaintiffs because it invites a trial of their

reputation

• Injunctive relief is generally not available



• A defamation claim is about damage to reputation

• An employer may have duty to support an employee

who has been defamed (fact-specific)

• But it is highly questionable that supporting a

defamation lawsuit is part of that duty



• Advice for employers

• Consider the expression, don’t react to it

• Show support for the employee

• If you take steps to facilitate “takedown,” make clear

that you’re taking one step at a time

• Frame your engagement properly from the outset

• Tell the employee to get independent legal advice

(short limitation period for some defamation claims)



• Advice for employer counsel

• Do a rigorous assessment of the basis for entering a

joint retainer

• Circumstances in which full engagement is justified

will be rare

• Is half-engaging ever a good strategy?


Departing Employee Litigation

• The theory

• Job stability is down*

• Departing employees have greater opportunity to

take information they shouldn’t

• Therefore departing employee litigation should be

up

*Statistics Canada data shows otherwise



• The conclusion – theory unproven

• But…

The Day After Tomorrow: the Future of Employment Law

Dan MichalukJanuary 27, 2011Alberta Law Conference

the future of employment law

Documents

information systems

employee litigation

departing employees

harassment free workplace

corporate systems

employment solicitors

employment litigators

alberta law conference