Beware of False Prophets in Employment Law

Employers must ask themselves a few questions
Wednesday, September 23, 2009 – National Post
Howard Levitt

Flipping through a free commuter newspaper last month, I came across a workplace law column describing various changes to employment law. A misstatement in that column of a critical issue in human rights law raised an alarm as to the public's vulnerability in relying on the advice of lawyers who falsely claim expertise in employment law, as well as the liability the newspaper could face for incorrect legal advice.

Recently more lawyers are claiming to be employment law specialists. Websites brandish exaggerated qualifications and records. Novices, referring to themselves as workplace law experts, are called upon by the unsuspecting media for their opinions, however ill-informed. Others trumpet "solutions" or "investigations" that often are charades that effectively surrender to employees' whims or bulk up employer clients' legal bills.

With so many competing claims and brands, it is difficult for employers to choose effective counsel. Here are some questions to consider:

Does my lawyer know the law? Beware of flash and exaggerated claims as to the state of the law. In that column I mentioned, the lawyer claimed drug and alcohol abuse may no longer constitute a disability. This would indeed be a dramatic development in human rights jurisprudence -- except that it is wrong.

Not only is alcohol and drug dependency specifically included in the definition of disability under the Canadian Human Rights Act, the Ontario Court of Appeal, as recently as last May, reaffirmed the obligations of employers to accommodate alcohol and drug dependent employees.

Is my lawyer advocating my interest? When my clients turn to me as counsel, they are not only looking for the law, they also are seeking creative strategies to deal with their issues and, if they wish to take a chance, the risks and costs of being wrong. Some lawyers contend this means coddling employees. My view is no resolution is satisfactory if it does not advance the employers' legitimate interests. Sometimes the consequence of that is some unhappy employees or former employees.

Is my lawyer a leader in his or her field? The employment law bar has many journeymen: lawyers content to work within conventional wisdom and not test the bounds of the law on behalf of their clients. Ascertain whether your counsel has pressed cases to Courts of Appeal and the Supreme Court of Canada. How many trials have they done? Every litigant wants to settle but, if the other side believes your lawyer won't go to trial, it will be reflected in your settlement.

Does my lawyer have a winning strategy? I have seen many lawyers rack up legal bills, spinning their wheels without any sense of direction. If the client does not know where the litigation is headed, chances are neither does the lawyer. Your lawyer must have clear objectives and a plan to execute them before entering the legal battleground.

Is my lawyer intelligently aggressive? Inexperienced lawyers level spurious allegations and inflated demands without any relationship to reality. They take a "kitchen sink" approach to litigation with scant regard to the possible disastrous cost sanctions from the court. If your lawyer is promising you an unreasonable outcome, think twice about retaining them.

Does my lawyer have national scope? If you have operations in different provinces, a national scope to the practice of law gives employers the ability to apply a consistent strategy across the country.

How accessible is my lawyer? If your messages are left unreturned and your emails seem to disappear into the ether there may be an overemphasis on work/life balance at the firm. I take exception to the notion a lawyer should go home at the same time as his assistant. I require my team to be accessible at all hours to their clients.

Howard Levitt, counsel to Lang Michener LLP, is an employment lawyer who practises in eight provinces and is author of The Law of Dismissal for Human Resources Professionals. He can be reached at hlevitt@langmichener.ca

© National Post 2009

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