In my January 15 column, I had discussed the death of employment law, but, as Mark Twain put it, “the reports of (its) death are greatly exaggerated.”
Whether my comments were prescient or premature, employment lawyers have now been resuscitated by COVID-19.
There has long been a delicate dance in my field perpetrated by its bar. The small, plaintiff focused, usually contingency-based law firms brought claims, which they never intended to take to trial. Few members of these firms have ever darkened a trial room door, hoping to settle cases swiftly and obtain a quick return for little work.
Their overtures were met by a mutual embrace from many members of the big law firms, equally quick to settle their cases at essentially market value. The firms’ moneyed clients were quick to open their wallets to avoid the distraction of employment litigation, often even paying more than required just to put the case behind them.
Those days will not be resuscitated, as employers will no longer have the extra income to settle cases. They will only be able to pay what they can now afford, especially with the legions of dismissal claims which unfortunately lie ahead.
There will always be room for serious plaintiff cases. But employers must appreciate the difference between a shakedown and a genuine merit-based case.
The new model will now require a certain level of judgement and skill to triage cases that have legs, as opposed to the “sausage factory” cases where the employees or their lawyers lack the skill, knowledge and stomach to see them through to a successful result. Without that judgement, exercised on behalf of both employers and employees, counsel will not be successful in protecting their clients.
Both employers and employees require experienced counsel able to adjudge the merits of their case and be prepared to provide clients a seasoned evaluation of their prospects. I have seen too many cases, on both sides, where parties have an entirely unrealistic view of the merit of their case, only to have it crack in the crucible of litigation.
There was a case last week where my employer client had made an offer of $100,000 to an employee before discovery but admissions obtained at discovery led me to withdraw that offer and make one for $5,000 instead.
Another example was a takeover of a business in the Maritimes by a client. The company dismissed about 100 employees and received about 25 lawyers’ letters, which led to 12 lawsuits.
The acquiring company’s offers were fair. We continued to hold tough, leading to all but one to drop their cases along the way without any additional money being offered. That one case went to trial and, three years after its dismissal, this $85,000-a-year employee recovered less than was originally offered — an amount under $10,000.
Furthermore, we found what we believed to be an error in the trial judge’s decision and appealed to that province’s Court of Appeal. The employee cross-appealed on the basis that the amount awarded was insufficient.
In a 2-1 split decision, the majority left the judgement as is but awarded no costs in part because my legal argument was not unreasonable. The dissenting judge would have reduced the award by several thousand dollars more leading to a judgement just over $5,000. Imagine what this employee must have spent in legal fees to obtain less than $10,000 through two levels of courts after five years.
My client understood that it was fighting each case to make the point that it would not be sued by others. And it worked. Shortly after the last court decision was handed down, my client sold the company to another client, which followed the same playbook and achieved the same successful result.
Not one employee sued. Why? Because word spread quickly that this new company was represented by the same lawyer as the last one. No one wanted to be in the same position as any of the 12 employees who had sued the first company, particularly the last one who had to pay legal fees through two levels of courts.
An employer must act in litigation in a manner consistent with its corporate culture and values as other employees are always watching. But their close observation means that they cannot be seen to be an easy target and too quick to pay out for cases that are not meritorious or in amounts that overcompensate. They simply cant afford to anymore.
And now on to questions I received recently.
Q: My employer called me back to work but I have two kids to look after and I don’t want to send them to daycare. Can I just refuse to return to work and collect the CERB instead?
A: No. If daycare is available, you cannot refuse to go back to work and collect the CERB. It’s only available to those unable to work as a result of COVID-19, not those who have stopped working by choice.
If there was no other option for childcare and you were unable to work remotely, then you would qualify for the CERB, but you cannot choose to stay home based on preference.
Q: My company said the office will be closed on certain Fridays and is forcing us to use our vacation days. Can they do that? I want to save my vacation days in case I need them for childcare, and I am concerned that I will run out.
A: The scheduling and use of vacation time is regulated by provincial employment standards laws, so what your employer is allowed to do will depend on what province you are in.
In Ontario, the Employment Standards Act requires employees to take their vacation in blocks of one or more weeks, depending on how long the employee has worked there, unless the employer and employee agree. However, in all provinces the employer has the final right to schedule vacation days. This means that you do not have a right to pick what days are used or not used for your vacation.
Human rights laws require employers to accommodate legitimate and unavoidable childcare obligations up to the point of undue hardship. Unfortunately, simply being concerned that childcare may be a problem in the future does not require accommodation.
Q: I have worked remotely for my employer for seven weeks with no issues. Recently my employer started talking about requiring everyone to return to the office, but I have children and a high-risk relative at home that I must take care of. Can they force me to return?
A: Employers are required to accommodate an employee’s legitimate and unavoidable family obligations up to the point of undue hardship.
In this case, the employee has worked from home for seven weeks without any problem, which shows that it would not be an undue hardship for the employer if he or she continued doing so.
This means that the employer cannot force the employee to return to work. As long as it remains necessary for the employee to stay at home to care for their family and it’s not a problem for the employer, the employee will have to be accommodated.
However, if circumstances change and staying at home to care for family becomes simply the employee’s preference, then the employer can require them to return to the office.