COVID-19 and new judicial decisions are keeping employment lawyers busier than ever.
When I started practising law in 1979, employment law was not even a recognized area of law.
That landscape has changed dramatically. Employment and labour law is thriving, and lawyers practising within these areas, however serendipitous their initial decision to enter it, are the beneficiaries of a recession-proof area.
Back in January, I stated ( much to the dismay of my colleagues) that I would not recommend the legal profession, let alone employment law, to anyone. One of the reasons was the increased amount of employment contracts used by companies that appeared to extinguish so many employees’ entitlements.
Of course, that was before a combination of judicial decisions and COVID-19 changed everything. The law in my field over those 40 years has become ubiquitous, permeating many aspects of Canadians’ lives. Requests for advice on issues such as remote working arrangements, layoffs, constructive dismissals and sexual harassment have become as commonplace as reviewing employment contracts. When most areas of law, in line with the general economy, have slowed down, employment and labour law practitioners are busier than ever before.
This past Friday, the Supreme Court of Canada rendered asunder my earlier thoughts respecting employment contracts providing certainty. David Matthews, whom I represented, was a chemist. He was forced out of his job by Ocean Nutrition Canada Ltd. and sued for constructive dismissal. After Matthews’s departure, the company was sold. Had Matthews remained employed, he would have received more than a million dollars. The key question for the Supreme Court was whether a finding of constructive dismissal entitled Matthews to his $1.1-million bonus.
The Supreme Court stated the starting point is he was entitled and that, absent unambiguous contractual language clearly applicable to the situation, and which most existing contracts in this country are not, an employee is entitled to their bonus (or commission, stock option, carry long- term incentive plan, etc.) during the notice period.
In Matthews’s case, pursuing his case to the country’s highest arbiter was certainly worthwhile. The broad takeaway is that employers should have their bonus and other plans reviewed immediately and employees should not take anything stipulated in these plans as being enforceable, before having a lawyer review them. Employees should never assume their employment contracts are enforceable as the vast majority of them, because of Matthews and other cases, no longer are. The court made other comments about the obligation of employers to treat their employees in good faith during the employment relationship which, like the Supreme Court’s findings on bonuses, will also have a critical impact on employment litigation and further increase the demand for employment lawyers.
During COVID-19, many questions have been raised about the future of the legal profession and particularly which area of law upcoming lawyers should focus on. Law students who shy away from boutique firms often explain that they are concerned about being pigeonholed and wish to keep their options open.
In my experience, those willing to commit themselves to a specific niche early on end up thriving later. Employment and labour law ( like other areas) require full- time practitioners, not dabblers. I cannot begin to count the number of senior practitioners who are now trying to gain a foothold in employment law but simply lack the background or experience and end up charging their clients exorbitant fees for comparatively mediocre work.
Junior associates at general purpose firms are often provided work from a multitude of areas, prohibiting their ability to master any craft. The same is true for articling students who some firms view as another warm body to perform documentary review exercises (a meaningless and thankless task), without developing any subject matter expertise. During COVID-19, there have been more lower- in
come litigants, the product of layoffs and remuneration reductions, than ever before. They cannot afford to pay for lawyers’ learning time.
New lawyers have a year of articling before becoming lawyers and the articling interviews are all organized for the same day by city. This year’s articling applications will be different from any other. We cannot shake hands, meet, or wine and dine as had traditionally been the case. Nevertheless, students are soon to be lawyers and the future of the profession.
As such, firms should aim to ensure that students are provided with the most practical experience possible. Students should receive the opportunity to observe the profession they are entering, not be pigeonholed into ob
scure tasks. They should not be hidden from contentious dealings or difficult opposing counsel. When a student becomes an associate, do they write about high- profile cases from the sidelines or do they actually litigate them? Articling students should ask themselves one question: Will their articles prepare them to be the lawyer that clients will want and, indeed, deserve?
Financial Post Got a question about employment law during COVID-19? Write to me at levitt@levittllp.com