Beware free legal advice, because it’s probably wrong
Access to justice is such a problem that a lot of people are getting legal help from all the wrong places.
Friends, family, strangers and Google hand out legal advice that may not be actual or proper.
At the dinner table, in the lunch room or during your friendly Uber ride, the wrong “legal advice” is being disseminated and used to people’s detriment. That is dangerous.
Relying on incorrect legal advice can cost you. One can only obtain proper legal advice from a legal professional, someone who actually knows to apply the correct law to your particular circumstances. Why? Small details make a difference and answers never come without caveats or exceptions.
As an employment lawyer, I see people relying on incorrect legal advice every day for workplace issues. Information is right at our fingertips and people think they have the chops to interpret and digest complex legal information to produce an accurate, legal sound byte of perfectly sound advice.
Employees have become hypersensitive to pseudo rights. “It’s the law. Janet’s daughter had the same thing happen to her.” What?
The problem is that people are being led to believe they have rights they in fact do not have — or they do not have rights they actually do. Worse, people are acting on those wrong beliefs. Here are some common employment law misconceptions: 1. “You can be fired during your probation period and you get nothing.”
That is incorrect on many levels.
A probationary period isn’t a creature of statute or common law. If it exists, it exists in your employment agreement, if you have one. Whether that agreement is valid is another question. But it is unlikely your friend or family member would know this just by looking at your employment agreement.
Depending on the facts of your case, you may still receive termination entitlements, such as a notice period or other damages. It also matters how you were treated.
On the other hand, employers sometimes terminate people within the probation period (if it, in fact, exists) believing they owe the worker nothing. It depends. Employers have been dinged for human-rights violations, wrongful dismissal and bad-faith conduct even within the “probationary period.”
2. “You cannot be fired while on sick leave or pregnant.” This is also incorrect. Your employer cannot fire you for human-rights or health and safety reasons, but they could have legitimate reasons for firing you. So if you are pregnant or are on disability leave, you are not immune from being fired.
Don’t assure Cindy “they can’t fire you, you’re pregnant” — tell her to speak with an employment and human-rights lawyer instead.
There may have been performance issues that led to the termination. Con- versely, sometimes discrimination is hidden behind alleged performance issues.
3. “Noncompetition and nonsolicitation clauses are not enforceable.” Please don’t rely on this. You don’t know the law on competition clauses or how to interpret them. So why would you tell Frank to get another job and start his own company after finding that Excel sheet with all the clients’ information?
The law on competition and solicitation is complex and may not apply to two people similarly, especially in different geographical locations, or specific positions.
With employers scrounging for cheaper labour and employees desperate to earn a living, many are acting on false legal advice because it’s free. But it could cost them more down the road.
Solving access to justice problems cannot be accomplished by permitting the doling out of false information, particularly when you don’t have a good grasp of the relevant facts and the correct application of the law. After all, you don’t go to your friends or WebMD to diagnose a mole.
Why would you risk your employment with a friend, an anonymous internet user, your gut or even a lawyer who does not practise employment law?
For this holiday season, let’s not give each other the “gift” of free, incorrect legal advice. If you don’t know, then don’t say anything at all.
People are being led to believe they have rights they in fact do not have — or they do not have rights they actually do