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3Employment law trends to watch for in 2013

Posted by on Jan 1, 2013 in HR Issues, Legal, Moneyville | 0 comments

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   January 1, 2012

The blogs I post about employment law issues like wrongful dismissal and human rights in the workplace are often among the most read articles of the day on Moneyville.

This is not surprising because everyone knows someone who has lost their job over the last few years, and all of us are naturally curious about how we would be treated by the courts in similar circumstances.

While it is difficult to anticipate what the next important wrongful dismissal case will say, I asked several employment lawyers what they think are the top employment law trends to watch out for in 2013.

Here are a few of the interesting things on their radar:

Stuart Rudner, a partner in the Toronto firm of Miller Thomson sees a number of potential issues arising out of the use of new technology in the workplace. For example, employers that provide smartphones without guidelines on usage may see more threats of claims for overtime from non-managerial staff who feel they are expected to read and respond to email messages while off-duty.

Required: $250m overtime suit against Scotia can proceed

In addition, Rudner suggests that HR will continue to refine the processes by which they screen applicants using social media. They will also rely upon information from social media for disciplinary purposes and use social media to monitor dismissed employees’ efforts to find new employment.

He also notes that until recently, a fired employee’s position or type of employment has been a core factor in the assessment of the number of months of damages for wrongful dismissal awarded. However, he expects continuation of a trend revealed in recent court decisions to place less emphasis on whether a dismissed person with the same number of years of service was an executive or a rank and file employee.

Termination settlements with “clawback clauses” are becoming more common according to Arleen Huggins, a partner in the Toronto firm of Koskie Minsky. This means that employers will offer severance packages where salary continuation for a specified period stops if the fired employee gets another job. Then the employee will get a lump sum payout of a fixed percentage (usually 50 per cent) of the balance.

With the end to mandatory retirement, Huggins says quantifying severance pay for older employees entitled to a pension when they are fired has become a live issue. In 2010 the British Columbia Court of Appeal ruled that retirement benefits paid to an employee when he was dismissed after 40 years with the company should not be deducted from his 20 months of compensation for wrongful dismissal. In December, the Supreme Court of Canada heard an appeal of this case and the decision is expected in early 2013.

As a result of important 2012 privacy-related decisions in both the Ontario Court of Appeal andthe Supreme Court of Canada, Shibley Righton partner Deborah Howden expects to see more breach of privacy litigation in Ontario and the rest of Canada in 2013.

Related: Bank employee fined $10,000 for snooping on spouse’s ex

Howden also says that a jury verdict of over $1 million against WalMart (currently under appeal) for constructive dismissal of a bullied employee is likely to make employers pay closer attention to employee allegations of harassment and take all reasonable steps to ensure a harassment-free workplace.

Related: Mistreated WalMart employee gets $1.46 million

Sean Bawden, an associate  in the Ottawa firm of Kelly Santini, predicts that in 2013 we are all going to have to do more with less in both the public and private sectors. This could translate into an increase in claims for stress and burnout, an uptick in constructive dismissal cases and a greater use of temporary foreign workers.

Finally, if Ontario Bill 115 restricting the collective bargaining rights of teachers survives a constitutional challenge, Bawden believes the door will be opened wider in this province for U.S-style “right to work” legislation. The net result could be that unions will have to provide all of their professional services and benefits for free to employees who decide they don’t want to pay dues to finance the cost of providing those services.

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