The Future of Employment Law
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The Future of Employment Law

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This is a presentation I delivered to lawyers attending the Alberta Law Conference. It's was very conceptual in nature, focusing on some of the broader forces affecting employers and employees. The ...

This is a presentation I delivered to lawyers attending the Alberta Law Conference. It's was very conceptual in nature, focusing on some of the broader forces affecting employers and employees. The two topics of substance are "information governance" and social media misuse.

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The Future of Employment Law The Future of Employment Law Presentation Transcript

  • The Day After Tomorrow: the Future of Employment Law Dan Michaluk January 27, 2011 Alberta 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
  • Pressure to Govern Information Systems
    • 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
  • Pressure to Govern Information Systems
    • But control is made harder by a number of forces
      • The “cloud”
      • Mobile storage media
      • Mobile devices
  • Pressure to Govern Information Systems
    • 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
  • Pressure to Govern Information Systems
    • 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 Virtualization of Workplace Harms
    • 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?
  • The Virtualization of Workplace Harms
    • 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
  • The Virtualization of Workplace Harms
    • 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
  • The Virtualization of Workplace Harms
    • 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
  • The Virtualization of Workplace Harms
    • 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)
  • The Virtualization of Workplace Harms
    • 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
  • Departing Employee Litigation
  • Departing Employee Litigation
    • The conclusion – theory unproven
    • But…
  • The Day After Tomorrow: the Future of Employment Law Dan Michaluk January 27, 2011 Alberta Law Conference