Legal advice can gallop off in all directions
The road to perdition is not paved with good intentions alone. There is also a healthy dose of recklessness.
It’s like foreign travel. You ask for directions and receive a specific, detailed response. The problem is that you are sent in entirely the wrong direction.
It is not malevolent. As the host, they want to be helpful, and in macho cultures particularly, not appear ignorant. So they guess. Legal advice is often like that.
I am often sent employment law periodicals and attend seminars at which various lawyers participate. What I hear, even from those who purport to be specialists, can be surprising. Let’s learn from their mistakes:
• One recent legal publication recommended that employers advise job applicants during their interview that the company will be conducting social network searches.
That’s like shutting the barn door after the horses have bolted. Such a warning will ensure that they clean up their profiles before you have a chance to review them. You should check those profiles before you even invite them for the interview.
Whether it’s slamming their previous employer, telling their friends that they are “not morning people” or indulging in some moronic stunt, you want to find out about it before you hire them. Contrary to this advice, there has not been a single case of a Canadian employer being successfully sued for conducting a social media search.
• Lawyers have recommended that, if the employer’s severance offer is not accepted, the employer should pay it to them anyway.
Virtuous but ridiculous. By following that advice, you have taken away employees’ incentive to accept your offer, funded their litigation and removed the possibility of the employee receiving, and your paying, less.
• I read one legal column in a free newspaper that advised that you can “get away with firing” pregnant women and the disabled as long as you call it something else, such as a reorganization.
Following this advice guarantees an embarrassing lawsuit that you assuredly will lose. There are entire bodies of bureaucracy whose primary job is to expose just such subterfuge. The human rights commissions’ predilection is to believe that even legitimate discharges of these groups are pregnant retaliatory shams.
• I have heard lawyers pronounce that you can’t fire employees on leave.
Actually, you can. If they misconduct themselves, being on leave does not protect them from the consequences. Similarly, if you lay off an entire department, employees on leave have no superseding rights.