Many employees who are wrongfully dismissed have had few, if any, dealings with lawyers in the past, and usually their experience will be with their wills (hopefully) and real estate, which often involve fixed rates.
But when you've been dismissed, it's harder to anticipate what the cost will be. In this entry, I'll survey some of the issues that can affect the cost of hiring a lawyer, and some of the fee arrangements that some lawyers offer.
Before I get into details, let me say that I'm not going to publish figures here, and they vary from place to place, but many lawyers will offer free consultations. I do so in many dismissal cases, and encourage dismissed employees to contact me.
Fee Arrangements
Hourly Billing
For most lawyers, cost is fundamentally premised on the hourly billing model, even though there are alternative fee arrangements available in many cases. Fundamentally, a lawyer says, "I bill x dollars per hour, plus disbursements and HST, so it all depends on how many hours I have to put in."
It is understandable for a client to be dissatisfied with this explanation of fees. How many hours will it take? Surely the lawyer is in a far better position to anticipate that then the client, no? Well, that's kind of a "Yes and No", because while I may know how long a given task will take, to a large extent the number of hours required will depend on factors outside of my power or knowledge. If the parties approach negotiations reasonably and in good faith, I am often able to resolve the file in the single-digit hours. But if the employer plays hardball or takes unreasonable positions, and/or if litigation is necessary, then it gets a lot more expensive a lot more quickly.
When you hear about a lawyer charging hundreds of dollars per hour, the initial instinct is to be shocked, because when you measure it by contrast to usual hourly wages, it just seems sky-high. The point of this entry is not to justify hourly rates, but allow me to say that lawyers don't generally take home hundreds of dollars per hour. Lawyers have to pay rent, staff, office expenses, professional insurance and dues, and not all hours are billable. There's a lot of overhead.
Contingency Fees
Contingency fees used to be illegal in Ontario. They're permitted now, and have become par for the course on personal injury, and they're occasionally seen in employment law. In a nutshell, that's the "You don't pay me unless I win you money, in which case I'll take a percentage."
I don't usually do contingency fees. I have occasionally, but there are a lot of difficulties with them, not the least of which is that there are enough other percentages coming off the top of wrongful dismissal damages (such as taxes) that it makes the client's take-home pretty marginal. Sometimes I'd be undercompensated, if the matter goes to trial. Sometimes I'd be overcompensated, if it settled quickly. From a business perspective, this will ideally balance out. But from the perspective of a client who has to pay a sizeable portion of the package for a relatively small amount of work, it will seem unfair.
There are other formulations of contingency fees - percentages that vary depending on when the file settles, premiums for achieving a specific result, etc. - which I don't generally dabble in.
Other Alternatives
There are a few other variations, payment plans, etc. One which I like is the 'half-and-half' retainer, which provides that half of the fee is billable as the work progresses, and the other half is billable after the matter is complete. For a dismissed employee who has lost his source of income, this makes the legal fees more bearable until the damage award is achieved.
Some lawyers do flat fees on an a la carte basis - so x dollars for a statement of claim, y dollars for discoveries, etc.
But the reason I prefer hourly billing is this: The way that lawyers will calculated contingency fees or flat fees is with reference to the number of hours they generally expect the task to take, and the hourly billing rate they would charge. To the extent that they're giving their clients more fee certainty, there will generally be a premium paid for that certainty, simply because lawyers are rational business-people. They will pick a rate that will, more often than not, get the equivalent of hourly billing.
What factors affect cost?
Different lawyers charge different hourly rates. Expertise, area of law, geographical region (and local market conditions) have an impact, but the single most important factor which defines most lawyers' rates is the length of time 'at bar' - i.e. how long they've been lawyers.
However, I'd suggest that it is not necessarily the case that you will pay less to a junior lawyer than a more experienced lawyer. In theory, the junior lawyer's reduced rates reflect the reality that they may take more time to produce the same quality of work. But the key thing to remember is that specific experience is important. I practice a lot of employment law. I know the framework very well and keep on top of new developments in the law. In an initial meeting with the client I can explain the framework, explain entitlements and obligations, and even tell the client where the uncertainties are. A lawyer without a lot of employment law experience will have to figure out the framework, and have to do research into the specific issues raised in the fact pattern, to a much greater extent than a lawyer who is intimately familiar with the area of law. And that isn't necessarily a question of overall experience - I have dealt with senior and highly competent litigators, billing more than double my rate, who wouldn't know (without research) what factors are usually relevant to a common law reasonable notice period.
One thing that drives up costs really quickly is when parties start taking unreasonable positions. To be clear, there are cases where the parties can reasonably be far apart because of legitimate questions as to how a Court might apply the law (particularly when you're in the grey area cases for just cause, constructive dismissal, enforceability of written contracts, or a handful of other scenarios), but in the vast majority of cases, two reasonably experienced employment lawyers will come to pretty similar conclusions about likely entitlements, leaving relatively little to fight about. That's why most matters settle.
It's where you get a lawyer who doesn't know what's reasonable, or a client who doesn't act on what the lawyer says is reasonable, where you start getting into more difficult negotiations, requiring steps to be taken to litigate. And throughout litigation, that remains true. Two experienced employment litigators, if they want to, can often narrow the issues in such a way that the matter can be brought to trial with a minimum of expense. However, if you have to fight over what productions are reasonable, what questions should be answered on discovery, and myriad factual and legal questions of arguable importance, then you start getting into a lot of 'off-shoot' fights - motions, multiple examinations, etc. - all of which drive up fees significantly.
To be clear, this isn't to say that all expensive fights entail someone acting unreasonably. After all, the common law is developed by people bringing serious questions to be determined by a judge in a robust adversarial process. So that's the other thing that can require more money to be spent, or else more significant compromise: If there's an 'all-or-nothing' question, or something close to it, in serious contest, that makes it harder to settle. For instance, for a question as to whether or not an employee is tied to the terms of a written employment contract, the difference could be as stark, in the right case, as between 8 weeks of pay in lieu of notice and 104 weeks of pay in lieu of notice. "Just cause", likewise, is a high threshold, which is the difference between the employee getting nothing versus getting full common law entitlements...so there can often be a legitimate question as to whether or not misconduct quite meets the standard.
*****
This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
Thursday, June 27, 2013
Thursday, June 13, 2013
Court of Appeal Reverses Pieters Decision
Back in February 2012, I posted about the Divisional Court decision in Peel Law Association v. Pieters, which reversed a finding by the HRTO that Pieters had experienced discrimination, when a law librarian interrogated him in the law library, querying whether or not he was entitled to be there, where Pieters asserted that it was because of his race.
The Court of Appeal's decision is fairly lengthy and detailed, but I just want to touch on a couple of points:
Firstly, the Court of Appeal considers the Divisional Court to have misstated the test for a prima facie case of discrimination by requiring a "causal nexus" between the prohibited ground and disadvantage suffered, versus a "connection" to the prohibited ground, as the test is usually stated in the established jurisprudence. Requiring the nexus to be "causal" is what the Court of Appeal really considered to be a problem, because the established jurisprudence focuses on "the discriminatory effects of conduct, rather than on intention and direct cause".
Respectfully, I think the Court of Appeal is way off on this one. There are multiple differences between the test the Divisional Court applied and the traditional test, but they get to the same place:
The Divisional Court looked for four factors:
The usual test is this:
The Court of Appeal's decision is fairly lengthy and detailed, but I just want to touch on a couple of points:
Firstly, the Court of Appeal considers the Divisional Court to have misstated the test for a prima facie case of discrimination by requiring a "causal nexus" between the prohibited ground and disadvantage suffered, versus a "connection" to the prohibited ground, as the test is usually stated in the established jurisprudence. Requiring the nexus to be "causal" is what the Court of Appeal really considered to be a problem, because the established jurisprudence focuses on "the discriminatory effects of conduct, rather than on intention and direct cause".
Respectfully, I think the Court of Appeal is way off on this one. There are multiple differences between the test the Divisional Court applied and the traditional test, but they get to the same place:
The Divisional Court looked for four factors:
- A distinction or differential treatment;
- Arbitrariness based on a prohibited ground;
- A disadvantage; and
- A causal nexus between the arbitrary distinction based on a prohibited ground and the disadvantage suffered.
The usual test is this:
- That he or she is identified by a prohibited ground of discrimination;
- That he or she was subject to adverse treatment; and
- That the prohibited ground was a factor in the alleged adverse treatment.
"Factor" could be used interchangeably with language such as 'connection' or 'nexus', but the Court of Appeal thinks that a 'causal nexus' is different.
And they may be right about that, on a close reading: A causal nexus suggests that you have to find that you were treated in a certain way because of the prohibited ground, whereas simply requiring a nexus is a lower standard, requiring some connection that need not be directly causal. So the example would be Meiorin, where a female firefighter wasn't treated any differently for being a woman, but the standards set had the effect of discriminating against women.
However, on the overall framing by the Divisional Court, that concern doesn't exist, because the Divisional Court isn't looking for the cause of 'adverse treatment' but rather 'disadvantage'. Intent doesn't play into that.
Perhaps more importantly, while I'm not exactly a fan of the Divisional Court's test, I don't see the question of 'causal nexus' as being important on the facts of this case. Indeed, to be able to say that he was discriminated against based on race, even though there was no causal nexus between his race and the way he was treated...would be frankly absurd.
I'm not sure that's a critical element of the decision, either way, however. The decision largely turns on deference, a finding that there was reason to think that the law librarian acted as she did because of race - the reasons turning largely on other credibility issues, the fact that she lied at the time about why she picked them out, among other things...none of which specifically suggest that race was the reason, but might reasonably be interpreted as suggesting that she had a specific reason for picking them out which she didn't want to disclose.
I'm not entirely comfortable jumping from "she picked on them and doesn't want to tell us why" to "it must have been racism"...but in the reality of human rights, it would often be an insurmountable burden to require more than that, because we can't get at what's in the heads of others.
As I said before, it's a close case.
Recording of Proceedings
However, there's a bit of obiter at the end which I find quite remarkable:
Finally, I will comment about respondents’ counsel’s complaint that there was no record of the proceedings before the Vice-Chair. We were advised that the HRTO does not normally record or transcribe its proceedings. This is difficult to understand given the availability of modern and simple to operate digital recording equipment. It seems to me that the advantages of recording the proceedings to the parties, the reviewing courts and to the tribunal itself outweigh any perceived difficulties. Certainly equipment problems can arise, but the impossibility of guaranteeing a reliable, quality recording is hardly a good reason for not recording at all.
This is huge. At this point, very few proceedings other than Courts maintain records of proceedings. This is not an infrequent gripe that lawyers have towards administrative tribunals, and not surprising that the Peel Law Association would raise the concern. Labour Arbitrators, the HRTO, the OLRB...none of them record proceedings. The LTB sometimes records hearings. The Social Benefits Tribunal...well, I appeared before them quite a few times several years ago, and one of the adjudicators recorded proceedings...I am not entirely sure whether that was a pilot project, or if perhaps it was for the purpose of oversight over that particular adjudicator, because she had a bit of a reputation for always leaning one way...
The point, however, is that a lecture from the Court of Appeal for not having recorded proceedings is something that admin tribunals can't ignore.
*****
This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
Communicating with Employees in the 21st Century
I recently received a couple of text messages which I initially assumed to simply be bizarre spam. The first one started with "This message is to all", and then proceeded to set out the procedure for changing kegs. I didn't even read it - firstly because of my assumption that it was spam, and secondly because I don't generally throw keg parties...
When I received a second text from the same number a few evenings later, I realized that my initial assumption was wrong. The second text was, again, a "message to all", and then raised concerns that some of 'you new girls' were making mixed drinks from smartphone app recipes and not properly charging for the amount of alcohol involved. Not spam, just a wrong number, and intended for employees. I googled the phone number, and it's connected to a pub in downtown Toronto. Next question for me: Do I text back and say "wrong number"? Or do I go further and suggest that they need to adjust how they approach communicating their policies to their employees?
The text message went on to explain how a non-standard drink should be charged, highlighted the importance of them not losing money for the establishment, pointed out that their tips would presumably be higher on higher bills, and included a veiled threat of job loss if caught undercharging for drinks.
And it got me thinking: This is a clever way of communicating with employees, but is it good enough?
On its own, the answer is No, for reasons which should be obvious, especially given the context. If I'm mistakenly receiving these texts, then it stands to reason that there's probably an employee *not* receiving them. So she may not get the memo about how to charge for non-standard drinks, and therefore clearly shouldn't be subject to discipline for failing to comply with the direction.
As well, text messages are far more difficult to convert to hard copy (or even to other electronic formats) than other media, like emails. My phone only keeps about a month's worth of texts, and I'm not even sure how to preserve them beyond that, if I wanted to. In other words, if I sent a text message to an employee giving instructions on how his job was to be done moving forward, and a few weeks later I discovered that he still wasn't following my directions...that text, and any response he sent to it, might be gone.
Nonetheless, these issues are lawyer issues. As a lawyer, I am always asking how we can produce the best court-admissible evidence that the message was given and received. This is why lawyers put signature lines for the employee in policy memos and disciplinary notices - to get the employee to acknowledge that it was brought to their attention. And this can be very important in situations where litigation arises. (Some employers think that the acknowledgement field is overly cautious. It isn't. I have had to litigate the question of whether or not an employee actually received a disciplinary notice, in a situation where the employer came to me when he was already being sued in wrongful dismissal, and had a reasonably strong trail of progressive discipline, but the employee denied ever having received any such warnings.
As a practical 21st-century businessperson, however, I see this approach as being clever for an employer dealing with large numbers of young adults. Text messages and social media are the primary means of communication for average young people today. It's how they connect to their world. Memos and letters are archaic, and are half-likely to be ignored.
And particularly in a workplace like a pub, where employees don't have workstations nor uniform hours, it isn't always feasible to distribute a memo and require a signed acknowledgement to be returned: If you want to get a message to everyone, you step into their world of communications.
So how do you reconcile the practical need to communicate with young people in a dynamic workplace, with the legal need to generate court-admissible evidence of your directions to your employees? There's the rub. The easy answer is to simply duplicate, to use written memos to confirm the contents of text messages. But it kind of defeats the point, and one can imagine other challenges arising that way. (That being said, it certainly does *not* replace the need for a policy manual.)
Texting may not be completely impractical for non-disciplinary matters, but you need to do a few things to make it work:
(1) The paperwork: Having contact information forms for employees to fill out, at the start of employment and when they change information, is fairly common; adding to such a form a field regarding text messages, confirming that their cell phone receives text messages and consenting to communication via text message, would be prudent. (NB: You also need to make sure you're sending your texts to the right number.)
(2) Regular communications via text message: Whenever you're sending any significant number of messages to someone, by *any* means, you're looking for at least occasional responses. If you're talking to somebody in person, and they aren't looking at you or responding to you, chances are that they aren't hearing what you're saying. The same is true of letters, emails, text messages, Facebook messages, etc. Not every correspondence calls for a response, but there definitely comes a point where, if you aren't getting direct responses, you need to start asking if the messages are being received. Expanding the use of text messages into areas that *do* call for feedback, such as scheduling and availability, and operational queries, will cover most of this, but it's still something to be alive to. Relatedly, feedback is important in many contexts - very few areas of contemporary employee relations should entail a completely one-sided, top-down, communication structure.
(3) Record the conversation. There's probably a way of saving and printing text messages. I don't know what it is, but if you're relying on text messages to communicate with employees, you need to figure it out, and do it regularly enough so as to not lose any data.
(4) In serious and disciplinary matters, you still need to go to more direct communications. Firing someone by text message, for example, simply isn't okay, and there would be practical difficulties with disciplining somebody by text message that are very difficult to get around consistently.
While it's tempting to avoid difficult conversations, and it would be so much easier to fire off a text message saying, "I know you did x, don't do it again or you'll be fired", the reality is that there's often no substitute for an in-person meeting. An essential part of a meaningful disciplinary process includes investigation, which includes an opportunity for the person to respond to the allegations. Sometimes there are good explanations for apparent misconduct; the employee needs an opportunity to give such an explanation, before you render judgment. Besides, for a serious matter, a one- or two-line text message just...doesn't convey the message that this is something you take very seriously.
*****
This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
When I received a second text from the same number a few evenings later, I realized that my initial assumption was wrong. The second text was, again, a "message to all", and then raised concerns that some of 'you new girls' were making mixed drinks from smartphone app recipes and not properly charging for the amount of alcohol involved. Not spam, just a wrong number, and intended for employees. I googled the phone number, and it's connected to a pub in downtown Toronto. Next question for me: Do I text back and say "wrong number"? Or do I go further and suggest that they need to adjust how they approach communicating their policies to their employees?
The text message went on to explain how a non-standard drink should be charged, highlighted the importance of them not losing money for the establishment, pointed out that their tips would presumably be higher on higher bills, and included a veiled threat of job loss if caught undercharging for drinks.
And it got me thinking: This is a clever way of communicating with employees, but is it good enough?
On its own, the answer is No, for reasons which should be obvious, especially given the context. If I'm mistakenly receiving these texts, then it stands to reason that there's probably an employee *not* receiving them. So she may not get the memo about how to charge for non-standard drinks, and therefore clearly shouldn't be subject to discipline for failing to comply with the direction.
As well, text messages are far more difficult to convert to hard copy (or even to other electronic formats) than other media, like emails. My phone only keeps about a month's worth of texts, and I'm not even sure how to preserve them beyond that, if I wanted to. In other words, if I sent a text message to an employee giving instructions on how his job was to be done moving forward, and a few weeks later I discovered that he still wasn't following my directions...that text, and any response he sent to it, might be gone.
Nonetheless, these issues are lawyer issues. As a lawyer, I am always asking how we can produce the best court-admissible evidence that the message was given and received. This is why lawyers put signature lines for the employee in policy memos and disciplinary notices - to get the employee to acknowledge that it was brought to their attention. And this can be very important in situations where litigation arises. (Some employers think that the acknowledgement field is overly cautious. It isn't. I have had to litigate the question of whether or not an employee actually received a disciplinary notice, in a situation where the employer came to me when he was already being sued in wrongful dismissal, and had a reasonably strong trail of progressive discipline, but the employee denied ever having received any such warnings.
As a practical 21st-century businessperson, however, I see this approach as being clever for an employer dealing with large numbers of young adults. Text messages and social media are the primary means of communication for average young people today. It's how they connect to their world. Memos and letters are archaic, and are half-likely to be ignored.
And particularly in a workplace like a pub, where employees don't have workstations nor uniform hours, it isn't always feasible to distribute a memo and require a signed acknowledgement to be returned: If you want to get a message to everyone, you step into their world of communications.
So how do you reconcile the practical need to communicate with young people in a dynamic workplace, with the legal need to generate court-admissible evidence of your directions to your employees? There's the rub. The easy answer is to simply duplicate, to use written memos to confirm the contents of text messages. But it kind of defeats the point, and one can imagine other challenges arising that way. (That being said, it certainly does *not* replace the need for a policy manual.)
Texting may not be completely impractical for non-disciplinary matters, but you need to do a few things to make it work:
(1) The paperwork: Having contact information forms for employees to fill out, at the start of employment and when they change information, is fairly common; adding to such a form a field regarding text messages, confirming that their cell phone receives text messages and consenting to communication via text message, would be prudent. (NB: You also need to make sure you're sending your texts to the right number.)
(2) Regular communications via text message: Whenever you're sending any significant number of messages to someone, by *any* means, you're looking for at least occasional responses. If you're talking to somebody in person, and they aren't looking at you or responding to you, chances are that they aren't hearing what you're saying. The same is true of letters, emails, text messages, Facebook messages, etc. Not every correspondence calls for a response, but there definitely comes a point where, if you aren't getting direct responses, you need to start asking if the messages are being received. Expanding the use of text messages into areas that *do* call for feedback, such as scheduling and availability, and operational queries, will cover most of this, but it's still something to be alive to. Relatedly, feedback is important in many contexts - very few areas of contemporary employee relations should entail a completely one-sided, top-down, communication structure.
(3) Record the conversation. There's probably a way of saving and printing text messages. I don't know what it is, but if you're relying on text messages to communicate with employees, you need to figure it out, and do it regularly enough so as to not lose any data.
(4) In serious and disciplinary matters, you still need to go to more direct communications. Firing someone by text message, for example, simply isn't okay, and there would be practical difficulties with disciplining somebody by text message that are very difficult to get around consistently.
While it's tempting to avoid difficult conversations, and it would be so much easier to fire off a text message saying, "I know you did x, don't do it again or you'll be fired", the reality is that there's often no substitute for an in-person meeting. An essential part of a meaningful disciplinary process includes investigation, which includes an opportunity for the person to respond to the allegations. Sometimes there are good explanations for apparent misconduct; the employee needs an opportunity to give such an explanation, before you render judgment. Besides, for a serious matter, a one- or two-line text message just...doesn't convey the message that this is something you take very seriously.
*****
This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
Monday, June 10, 2013
Progressive Employee Relations
I just watched the new movie, "The Internship", featuring Vince Vaughn and Owen Wilson as two middle-aged salespeople with no tech experience going through a Google internship in Mountain View with a group of 21-year-olds. In many ways, the movie felt like an attempt to advertise Google. And it worked. Hey Google, hiring any lawyers?
But Google's philosophy pushes the envelope of progressive employee relations, and it's worth some attention.
Google is well-reputed as among the best, if not the very best, companies to work for. Remarkable features in the movie include free food, a slide from floor to floor, sleep pods where employees can take a nap to recharge, a Quidditch pitch - I'm fairly familiar with the various perks available to Google employees, though the Quidditch pitch was previously unknown to me. Other perks are compensation based, with various bonuses available, including the 'peer bonus', where one employee may nominate a peer for a bonus based on exemplary performance on a project, etc. This is great for workplace dynamics, encouraging achievement, and encouraging recognition of achievement by your peers.
It's largely about making the workplace attractive, to attract and retain the best talent. The slide's a bit of a gimmick, to play up the 'cool' factor, but many of these aspects are of real value to employees.
On the flip side, however, there's value to the employer as well. A space for employees to take a nap isn't strictly unheard of; 'sleep pods' are a new and modern twist, but it helps with productivity. Free food keeps employees happy, but it also keeps them at work. Extending the free food to family means that you can invite your family to join you for lunch: End result - you get to spend time with your family and stay at work. Other recreation, and particularly resources for sports and physical fitness, are a natural extension of the fitness rooms offered by so many employers, to keep their employees physically and psychologically healthy.
Fundamentally, there seems to be a recognition that what's good for the employee, in the workplace, is good for the employer as well. At least, when the working relationship is healthy.
But what can other employers, in other industries, take from this? Most employers hesitate to offer too much freedom to employees, for fear of abuse. (In Scott Adams' Dilbert comic, the Wally character comes to mind, who is always portrayed with coffee in hand, and who works very hard and intelligently to avoid doing any productive work. One could easily imagine him hiding out in the sleep pod all day.) After all, not only is Google a business which hires professionals for salaried positions with high quality productivity-based expectations, but they pick from the best of the best. They can expect a great deal of their employees, and it is unlikely that abuse would be a significant problem. Is the same true of unskilled employees? Administrative and clerical workers?
One could certainly argue that the average office environment that models a workplace after Google would quickly develop its own ability to select only top candidates, but my question runs deeper: If Google's employment practices were adopted widely, would the cost and risk of abuse outweigh the gains?
I would argue that, with certain exceptions, the answer is No. What employers have generally found when providing fitness facilities to employees is that there's a maximum use level. Exceptionally few people would 'abuse' a workplace gym, simply because most people don't have the endurance to spend too much time using the gym. Would there be those who hide out at the gym as a way to avoid work? Maybe some, but that would be pretty overt to bystanders, and such people probably aren't working at their desks anyways. The average Wally doesn't need something like a gym, or a sleep pod, to avoid work. Similarly, people can only eat so much free food. Naps, for all but the overt abusers, will be limited propositions.
Bottom line: Someone who would abuse the system will not be a 'good employee' just because you don't provide these perks open to abuse.
Indeed, the opposite may well be true in some cases. If you give an employee ownership of his or her own productivity, the natural inclination is to rise to the challenge. If I tell an employee exactly how and when to do his job, he will most likely do what he's told - no more, no less. If the end quality of the work is inferior, that's my fault. On the other hand, if I tell an employee that a project has to be completed by a particular date, and convey clear expectations on the quality of the work to be performed, then he will feel invested in the project, understanding that the end quality (and timeliness) of the work reflects on him.
There's a kneejerk reaction among some employers that employees will try to exploit them. Give them an inch, they'll take a mile . This, by and large, is an unfair reaction. Wally is a very rare phenomenon - most people derive a sense of self-value from their work, and they want to do worthwhile work. Most people want to produce for their employers, and make their employers happy.
What about the cost? The reality is that, from a cost perspective, some of these perks would not represent a significant increase to the cost of labour for many employers. If you're supplying large numbers with simple foods, you can probably do it for something to the tune of ten bucks per person per meal, give or take. If we're talking about one meal per day on average, then for an employee with a salary of $50,000, you've added about 5% to the cost of labour. It's a pretty huge perk, considering that figure. (Let's face it: For your average Google software engineer, the percentage figure will be much lower.) If employees are getting more meals, it will presumably be because they're working longer hours, and producing more.
It is practically difficult to offer such perks in many workplaces. Where having bodies on the floor is the primary staffing goal, you can't necessarily afford freedom to go the gym, or nap in the sleep pod. Likewise, for employers whose staffing is all minimum wage front-line employees, it will neither be cost efficient nor practically prudent.
For most employers, however, I would suggest that the kneejerk expectation of employee exploitation needs to be overcome, and that there's a real cost-benefit analysis to be applied. Excellent employee relations need not be limited to the top-level high tech companies, and can be an asset in many workplaces.
*****
This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
But Google's philosophy pushes the envelope of progressive employee relations, and it's worth some attention.
Google is well-reputed as among the best, if not the very best, companies to work for. Remarkable features in the movie include free food, a slide from floor to floor, sleep pods where employees can take a nap to recharge, a Quidditch pitch - I'm fairly familiar with the various perks available to Google employees, though the Quidditch pitch was previously unknown to me. Other perks are compensation based, with various bonuses available, including the 'peer bonus', where one employee may nominate a peer for a bonus based on exemplary performance on a project, etc. This is great for workplace dynamics, encouraging achievement, and encouraging recognition of achievement by your peers.
It's largely about making the workplace attractive, to attract and retain the best talent. The slide's a bit of a gimmick, to play up the 'cool' factor, but many of these aspects are of real value to employees.
On the flip side, however, there's value to the employer as well. A space for employees to take a nap isn't strictly unheard of; 'sleep pods' are a new and modern twist, but it helps with productivity. Free food keeps employees happy, but it also keeps them at work. Extending the free food to family means that you can invite your family to join you for lunch: End result - you get to spend time with your family and stay at work. Other recreation, and particularly resources for sports and physical fitness, are a natural extension of the fitness rooms offered by so many employers, to keep their employees physically and psychologically healthy.
Fundamentally, there seems to be a recognition that what's good for the employee, in the workplace, is good for the employer as well. At least, when the working relationship is healthy.
But what can other employers, in other industries, take from this? Most employers hesitate to offer too much freedom to employees, for fear of abuse. (In Scott Adams' Dilbert comic, the Wally character comes to mind, who is always portrayed with coffee in hand, and who works very hard and intelligently to avoid doing any productive work. One could easily imagine him hiding out in the sleep pod all day.) After all, not only is Google a business which hires professionals for salaried positions with high quality productivity-based expectations, but they pick from the best of the best. They can expect a great deal of their employees, and it is unlikely that abuse would be a significant problem. Is the same true of unskilled employees? Administrative and clerical workers?
One could certainly argue that the average office environment that models a workplace after Google would quickly develop its own ability to select only top candidates, but my question runs deeper: If Google's employment practices were adopted widely, would the cost and risk of abuse outweigh the gains?
I would argue that, with certain exceptions, the answer is No. What employers have generally found when providing fitness facilities to employees is that there's a maximum use level. Exceptionally few people would 'abuse' a workplace gym, simply because most people don't have the endurance to spend too much time using the gym. Would there be those who hide out at the gym as a way to avoid work? Maybe some, but that would be pretty overt to bystanders, and such people probably aren't working at their desks anyways. The average Wally doesn't need something like a gym, or a sleep pod, to avoid work. Similarly, people can only eat so much free food. Naps, for all but the overt abusers, will be limited propositions.
Bottom line: Someone who would abuse the system will not be a 'good employee' just because you don't provide these perks open to abuse.
Indeed, the opposite may well be true in some cases. If you give an employee ownership of his or her own productivity, the natural inclination is to rise to the challenge. If I tell an employee exactly how and when to do his job, he will most likely do what he's told - no more, no less. If the end quality of the work is inferior, that's my fault. On the other hand, if I tell an employee that a project has to be completed by a particular date, and convey clear expectations on the quality of the work to be performed, then he will feel invested in the project, understanding that the end quality (and timeliness) of the work reflects on him.
There's a kneejerk reaction among some employers that employees will try to exploit them. Give them an inch, they'll take a mile . This, by and large, is an unfair reaction. Wally is a very rare phenomenon - most people derive a sense of self-value from their work, and they want to do worthwhile work. Most people want to produce for their employers, and make their employers happy.
What about the cost? The reality is that, from a cost perspective, some of these perks would not represent a significant increase to the cost of labour for many employers. If you're supplying large numbers with simple foods, you can probably do it for something to the tune of ten bucks per person per meal, give or take. If we're talking about one meal per day on average, then for an employee with a salary of $50,000, you've added about 5% to the cost of labour. It's a pretty huge perk, considering that figure. (Let's face it: For your average Google software engineer, the percentage figure will be much lower.) If employees are getting more meals, it will presumably be because they're working longer hours, and producing more.
It is practically difficult to offer such perks in many workplaces. Where having bodies on the floor is the primary staffing goal, you can't necessarily afford freedom to go the gym, or nap in the sleep pod. Likewise, for employers whose staffing is all minimum wage front-line employees, it will neither be cost efficient nor practically prudent.
For most employers, however, I would suggest that the kneejerk expectation of employee exploitation needs to be overcome, and that there's a real cost-benefit analysis to be applied. Excellent employee relations need not be limited to the top-level high tech companies, and can be an asset in many workplaces.
*****
This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
Monday, June 3, 2013
Masters, Servants, and Insubordination
Employment law takes its roots from the old common law governing the relationship between master and servant. Some of those roots still exist, and I've heard a number of people speak pejoratively about the law of 'master and servant' - the terminology is at minimum demeaning to employees in today's workplace.
The area where this criticism most often arises is in issues of insubordination, of employees getting in trouble for failing to comply with instructions from the employer.
Hat tip to Professor Doorey for posting about the case of Gichuru v. Smith, involving a B.C. lawyer who fired an articling student for insubordination.
Articling students seldom get fired, and I'm not sure I've heard of any fired for cause. Unless you're doing something akin to stealing from your employer, it's really hard to generate just cause in a short period of time, and most articling principals would rather just finish the articling term and send you on your way. Getting fired during your articles would generally delay a person becoming a lawyer, and the Provincial Law Society would take an interest as well. It's a big deal.
Mr. Guchuru was fired after only approximately 3 months of articling, however. In that time, a number of issues had arisen which fundamentally boil down to two philosophical differences: Firstly, Mr. Guchuru appears to be of the view that he was there to put in an 8-hour day, and then he was done and off the clock; Mr. Smith expected longer hours, and more importantly expected Mr. Guchuru to be available by telephone "24/7". Secondly, Mr. Guchuru appears to have been of the belief that menial tasks were beneath his expertise, and he should not be expected to do such things.
These became major points of contention very quickly, with Guchuru insisting on inflexible 60-minute lunch daily, during which he was incommunicado (which was often a problem as Smith, when at Court, would call the office during lunch and require work done), and argued with other lawyers and staff when they assigned him work, requiring them to justify why he should do the work. There were a number of incidents of varying seriousness.
These topics were discussed on a number of occasions, and the Court found that Smith made his expectations very clear and that Guchuru failed and refused to modify his own behaviour. Accordingly, Mr. Guchuru was insubordinate, and this constituted just cause.
Observations on the Facts
Some of Mr. Guchuru's attitudes were clearly inappropriate for an articling student - a busy law practice requires flexibility in terms of meeting the requirements of the firm, and the very point of articling is to gain exposure to various aspects of working in a legal environment. An articling student should want to learn as much from as many lawyers as possible, and not just lawyers, either; admin staff and law clerks play essential roles in legal practice, and a lawyer has to understand those roles...so an articling student has a lot to learn from them. As for the hours of work, Smith is not wrong to assert that articling traditionally involves long hours, at least periodically if not consistently. (Outside of the big city firms, it's not unusual to have more of a 9-5 workday...but if there's work that needs to be done for the next morning, as a lawyer or articling student, you get it done, however late that means staying.) There is certainly a time and a place to ask people why certain work needs to get done, or to engage in a discussion about whether or not an alternate approach might be called for, but that's different from challenging them to prove that the work is necessary.
On the other hand, Smith's expectations were also a bit towards the other extreme. Expecting 24/7 availability, as a matter of course, is somewhat exceptional. When I was a junior associate in a small firm (which was largely 9-5), I had senior lawyers call me at home after hours asking me for research on short notice, and I dropped what I was doing to get it done (once even prepared and delivered a research memo, with case law in triplicate, to another lawyer's house in the late evening)...but I wouldn't expect that, by default, that would be the natural expectation. Had I been unavailable, or not answered the phone (call display being what it is), I'm really doubtful that I could reasonably have been subject to discipline for it. Might have factored into my bonus, but that's different.
Indeed, increasing numbers of lawyers are looking for work-life balance. It's a combination of cultural factors, but it stems from the fact that lawyers increasingly want and need to play a role in the home. Some articling students, for example, are single parents with child care obligations; it's simply not feasible for them - among others - to drop everything at a moment's notice to go to work, or to be available to the boss "24/7".
But, more importantly, the fact that Smith and Guchuru didn't realize that they had very different philosophies relating to hours of work and reporting structure until after the employment relationship was established...well, that speaks to a very significant human resources failure. Such expectations should be made clear at the recruitment stage. If I expect 24/7 availability from an articling student, that should be explained to that articling student up front, in the interview, and again in the offer letter. Prior to accepting an offer, an articling student should be told who will be giving them their marching orders, if only for the purpose of knowing what to expect.
The Law of Doing What You're Told
The language of master/servant, as noted above, is pretty demeaning. But I don't think that the language really captures the real principles today.
Let me start with the proposition that I am a lawyer operating my own practice. I have tasks which need to be completed, and not enough time in the day to do them. So I hire somebody else to assist with those tasks. Ultimately, they are still my tasks to complete, my clients being served, my reputation on the line, and my responsibility. So I supervise the work of my new employee, and make sure that it is completed in a way which is consistent with my brand. This is partly about quality control, but not entirely - sometimes, my way of completing a task may not be better or worse than an alternative, but there are plenty of good reasons to streamline.
I'm paying the employee to do the work, but moreover I'm paying the employee to complete the work in a fashion which adds to my practice. Which means that I dictate the expectations. This is the power that the law of insubordination affirms.
That doesn't mean that I can't accept input. If an employee has constructive suggestions for how my practice can be improved, I'm all ears. Nor does it mean that I can't delegate authority in the right circumstances. If I hire another lawyer, then I would hope and expect to quickly satisfy myself that he or she is competent and doesn't require micromanaging. However, I don't have to do either. It is a poor manager who fails to delegate and who doesn't listen to the ideas of his or her reports, but poor management doesn't generally attract the scrutiny of the Courts.
Nonetheless, there are reasonable limits to a manager's power. If I hire another lawyer and assign him menial tasks of a non-legal nature (say, cleaning the toilets), that may quickly rise to the level of constructive dismissal. A lawyer's refusal to clean toilets would probably not qualify as insubordination.
In other words, insubordination isn't simply a manner of not doing what you're told; insubordination means not doing what you are told when the direction is within your duties or reasonably appropriate to your position. And that's the crux of it: The law of master and servant doesn't give an employer limitless power, but rather it says that an employee is expected to do what he is being paid to do, and if he chooses not to do so, then the employer need not continue to pay him. Pretty simple, when put in that light.
Other Interesting Points in this Case
Smith paid Guchuru two weeks' notice when dismissing him. This could have been a mistake. Provision of notice has often been seen as condoning known misconduct (i.e. as waiving the right to fire for cause). Consider the 1964 decision in Tracey v. Swansea Construction Co. Ltd., affirmed by the Court of Appeal:
This isn't consistently applied, and certainly has a number of exceptions, but there are compelling policy reasons to discourage employers from backing an insufficient offer of pay in lieu of notice with a threat of just cause. Just cause is a high threshold, and not something to be alleged lightly. It's highly improper, and a violation of an employer's duty of good faith and fair dealing, to raise tenuous allegations of just cause as a way of leveraging a better settlement. That doesn't appear to have been going on in this case, however, and the trial judge here seemed unconcerned about the fact that Smith had provided some notice.
*****
This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
The area where this criticism most often arises is in issues of insubordination, of employees getting in trouble for failing to comply with instructions from the employer.
Hat tip to Professor Doorey for posting about the case of Gichuru v. Smith, involving a B.C. lawyer who fired an articling student for insubordination.
Articling students seldom get fired, and I'm not sure I've heard of any fired for cause. Unless you're doing something akin to stealing from your employer, it's really hard to generate just cause in a short period of time, and most articling principals would rather just finish the articling term and send you on your way. Getting fired during your articles would generally delay a person becoming a lawyer, and the Provincial Law Society would take an interest as well. It's a big deal.
Mr. Guchuru was fired after only approximately 3 months of articling, however. In that time, a number of issues had arisen which fundamentally boil down to two philosophical differences: Firstly, Mr. Guchuru appears to be of the view that he was there to put in an 8-hour day, and then he was done and off the clock; Mr. Smith expected longer hours, and more importantly expected Mr. Guchuru to be available by telephone "24/7". Secondly, Mr. Guchuru appears to have been of the belief that menial tasks were beneath his expertise, and he should not be expected to do such things.
These became major points of contention very quickly, with Guchuru insisting on inflexible 60-minute lunch daily, during which he was incommunicado (which was often a problem as Smith, when at Court, would call the office during lunch and require work done), and argued with other lawyers and staff when they assigned him work, requiring them to justify why he should do the work. There were a number of incidents of varying seriousness.
These topics were discussed on a number of occasions, and the Court found that Smith made his expectations very clear and that Guchuru failed and refused to modify his own behaviour. Accordingly, Mr. Guchuru was insubordinate, and this constituted just cause.
Observations on the Facts
Some of Mr. Guchuru's attitudes were clearly inappropriate for an articling student - a busy law practice requires flexibility in terms of meeting the requirements of the firm, and the very point of articling is to gain exposure to various aspects of working in a legal environment. An articling student should want to learn as much from as many lawyers as possible, and not just lawyers, either; admin staff and law clerks play essential roles in legal practice, and a lawyer has to understand those roles...so an articling student has a lot to learn from them. As for the hours of work, Smith is not wrong to assert that articling traditionally involves long hours, at least periodically if not consistently. (Outside of the big city firms, it's not unusual to have more of a 9-5 workday...but if there's work that needs to be done for the next morning, as a lawyer or articling student, you get it done, however late that means staying.) There is certainly a time and a place to ask people why certain work needs to get done, or to engage in a discussion about whether or not an alternate approach might be called for, but that's different from challenging them to prove that the work is necessary.
On the other hand, Smith's expectations were also a bit towards the other extreme. Expecting 24/7 availability, as a matter of course, is somewhat exceptional. When I was a junior associate in a small firm (which was largely 9-5), I had senior lawyers call me at home after hours asking me for research on short notice, and I dropped what I was doing to get it done (once even prepared and delivered a research memo, with case law in triplicate, to another lawyer's house in the late evening)...but I wouldn't expect that, by default, that would be the natural expectation. Had I been unavailable, or not answered the phone (call display being what it is), I'm really doubtful that I could reasonably have been subject to discipline for it. Might have factored into my bonus, but that's different.
Indeed, increasing numbers of lawyers are looking for work-life balance. It's a combination of cultural factors, but it stems from the fact that lawyers increasingly want and need to play a role in the home. Some articling students, for example, are single parents with child care obligations; it's simply not feasible for them - among others - to drop everything at a moment's notice to go to work, or to be available to the boss "24/7".
But, more importantly, the fact that Smith and Guchuru didn't realize that they had very different philosophies relating to hours of work and reporting structure until after the employment relationship was established...well, that speaks to a very significant human resources failure. Such expectations should be made clear at the recruitment stage. If I expect 24/7 availability from an articling student, that should be explained to that articling student up front, in the interview, and again in the offer letter. Prior to accepting an offer, an articling student should be told who will be giving them their marching orders, if only for the purpose of knowing what to expect.
The Law of Doing What You're Told
The language of master/servant, as noted above, is pretty demeaning. But I don't think that the language really captures the real principles today.
Let me start with the proposition that I am a lawyer operating my own practice. I have tasks which need to be completed, and not enough time in the day to do them. So I hire somebody else to assist with those tasks. Ultimately, they are still my tasks to complete, my clients being served, my reputation on the line, and my responsibility. So I supervise the work of my new employee, and make sure that it is completed in a way which is consistent with my brand. This is partly about quality control, but not entirely - sometimes, my way of completing a task may not be better or worse than an alternative, but there are plenty of good reasons to streamline.
I'm paying the employee to do the work, but moreover I'm paying the employee to complete the work in a fashion which adds to my practice. Which means that I dictate the expectations. This is the power that the law of insubordination affirms.
That doesn't mean that I can't accept input. If an employee has constructive suggestions for how my practice can be improved, I'm all ears. Nor does it mean that I can't delegate authority in the right circumstances. If I hire another lawyer, then I would hope and expect to quickly satisfy myself that he or she is competent and doesn't require micromanaging. However, I don't have to do either. It is a poor manager who fails to delegate and who doesn't listen to the ideas of his or her reports, but poor management doesn't generally attract the scrutiny of the Courts.
Nonetheless, there are reasonable limits to a manager's power. If I hire another lawyer and assign him menial tasks of a non-legal nature (say, cleaning the toilets), that may quickly rise to the level of constructive dismissal. A lawyer's refusal to clean toilets would probably not qualify as insubordination.
In other words, insubordination isn't simply a manner of not doing what you're told; insubordination means not doing what you are told when the direction is within your duties or reasonably appropriate to your position. And that's the crux of it: The law of master and servant doesn't give an employer limitless power, but rather it says that an employee is expected to do what he is being paid to do, and if he chooses not to do so, then the employer need not continue to pay him. Pretty simple, when put in that light.
Other Interesting Points in this Case
Smith paid Guchuru two weeks' notice when dismissing him. This could have been a mistake. Provision of notice has often been seen as condoning known misconduct (i.e. as waiving the right to fire for cause). Consider the 1964 decision in Tracey v. Swansea Construction Co. Ltd., affirmed by the Court of Appeal:
The simple position appears to me to be this. The defendant desired to dismiss the plaintiff. If there was misconduct or default sufficient to justify discharge it had one of two courses open to it. It could have summarily dismissed for cause or it could have decided to overlook, waive or condone the misconduct and terminate upon notice, or payment in lieu of notice, in accordance with the provision of the contract for termination implied by law. It could not do both, for one would operate as a repudiation of the contract for a breach thereof, and the other, conversely, would operate as an affirmation of the contract and the adoption of its provisions for termination. The fact that the defendant was in error as to the length of, or sufficiency of, the notice given could in no way alter the effect of its intention as expressed by its conduct.
This isn't consistently applied, and certainly has a number of exceptions, but there are compelling policy reasons to discourage employers from backing an insufficient offer of pay in lieu of notice with a threat of just cause. Just cause is a high threshold, and not something to be alleged lightly. It's highly improper, and a violation of an employer's duty of good faith and fair dealing, to raise tenuous allegations of just cause as a way of leveraging a better settlement. That doesn't appear to have been going on in this case, however, and the trial judge here seemed unconcerned about the fact that Smith had provided some notice.
*****
This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
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