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The Day After Tomorrow: the Future of Employment Law
Dan MichalukJanuary 27, 2011Alberta Law Conference
The Future of Employment Law
The Future of Employment Law
• Pressure to govern information on corporate systems
• The “virtualization” of workplace harms
• Job stability and departing employees
The Future of Employment Law
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
The Future of Employment Law
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
The Future of Employment Law
Pressure to Govern Information Systems
• But control is made harder by a number of forces
• The “cloud”
• Mobile storage media
• Mobile devices
The Future of Employment Law
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
The Future of Employment Law
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 Future of Employment Law
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 Future of Employment Law
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 Future of Employment Law
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 Future of Employment Law
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 Future of Employment Law
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 Future of Employment Law
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 Future of Employment Law
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?
The Future of Employment Law
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 Future of Employment Law
Departing Employee Litigation
The Future of Employment Law
Departing Employee Litigation
• The conclusion – theory unproven
• But…
The Day After Tomorrow: the Future of Employment Law
Dan MichalukJanuary 27, 2011Alberta Law Conference