WHY EMPLOYEES SUE (AND WHY PHYSICIANS SHOULD CARE)

Transcription

1 WHY EMPLOYEES SUE (AND WHY PHYSICIANS SHOULD CARE) A discussion with members of the Occupational and Environmental Medicine Association of Canada June 9 th, 2017, St. John s Newfoundland Dr. Kelly VanBuskirk, Partner Lawson Creamer

2 EMPLOYMENT-RELATED LITIGATION IS ON THE RISE A study of 535 Canadian human resources professionals suggests that 70% of employers believe that employee litigiousness is increasing. Balthazard, C. Are employees becoming more litigious?, Canadian Human Resources Association, 2010.

3 EMPLOYMENT-RELATED LITIGATION IS ON THE RISE In the United States of America, it is predicted that a two-year trend in increased employment discrimination cases will continue, and Federal Court claims under the Fair Labor Standards Act are also expected to continue steady growth. -Seyfarth Shaw, 11 th Annual Workplace Class Action Litigation Report, 2015.

4 EMPLOYMENT-RELATED LITIGATION COSTS ARE ON THE RISE A majority of Canadian human resources professionals saw their corporate employmentrelated litigation expenses increase by at least 10% between 2005 and Balthazard, C. Are employees becoming more litigious?, Canadian Human Resources Association, 2010.

5 WHY IS EMPLOYMENT-RELATED LITIGATION ON THE RISE?

6 EMPLOYMENT IS IMPORTANT TO PEOPLE [Some people] see work at least, their work as the main source of life-satisfaction, deeply rewarding, important for the community, and hard to relinquish. Fryers, Tom. Work, identity and health. Clinical Practice & Epidemiology in Mental Health. 2 (2006): 12.

7 EMPLOYMENT IS IMPORTANT TO PEOPLE Work is one of the most fundamental aspects in a person s life, providing the individual with a means of financial support and, as importantly, a contributory role in society. A person s employment is an essential component of his or her sense of identity, self-worth and emotional well-being. Reference Re Public Service Employee Relations Act (Alta.), 1987 CanLII 88 (SCC)

8 EMPLOYMENT IS IMPORTANT TO PEOPLE, BUT LITIGATION IS A BRUTAL ARENA 79% of respondents in an Ontario study believe that the legal system works better for rich people than for poor people. McMurtry, Roy, Lorne Sossin et al. Listening to Ontarians. Report of the Ontario Civil Justice Needs Project, 2010.

9 EMPLOYMENT IS IMPORTANT TO PEOPLE, BUT LITIGATION IS A BRUTAL ARENA There is a widespread perception that legal proceedings involve uncertainty, expense and potential long-term disturbance and that only the most serious could justify enduring those conditions. Genn, H. Paths to Justice: What People Do and Think about Going to Law. Hart Publishing: Oxford, 1999 at 254.

10 IF LITIGATION IS BRUTAL (AND IT IS), WHY DO PEOPLE DO IT? LESSONS FROM THE MEDICAL FIELD: Investigation of non-economic motives for legal claiming in some non-employment contexts, has suggested that interactional and informational justice considerations are more prevalent than retributive justice impacts. Gallagher, T.H. et al. Patients and Physicians Attitudes Regarding the Disclosure of Medical Errors. Journal of the American Medical Association (2003): ; see also Relis, T. It s not about the money!: a theory on misconceptions of plaintiffs litigation aims. University of Pittsburgh Law Review (2007): 341.

11 IF LITIGATION IS BRUTAL (AND IT IS), WHY DO PEOPLE DO IT? LESSONS FROM THE LAND OF LITIGATION: the decision to initiate litigation is not viewed solely in fairness terms or in response to a specific experience; rather, the decision is also considered in the context of one`s satisfaction with the overall job situation. It may be that workers who feel unfairly treated will refrain from suing their company if they generally feel satisfied with their job. Bies, R. and T. Tyler. The Litigation Mentality in Organizations: a Test of Alternative Psychological Explanations. Organizational Science, 4.3 (1993):

12 IF LITIGATION IS BRUTAL (AND IT IS), WHY DO PEOPLE DO IT? The first set of motives are social psychological, turning on feelings of injustice and poor treatment.the second set of motives involves feelings of financial harm and expectations of turning around these conditions by winning a wrongfultermination award. These economic concerns appear both to induce people to think about claiming and to increase their willingness to take action on these thoughts, but their net effects are not as strong as the effects of the psychological variables. Lind, E.A., J. Greenberg, K.S. Scott, and T.D. Welchans. The Winding Road from Employee to Complainant: Situational and Psychological Determinants of Wrongful-Termination Claims. Administrative Science Quarterly (2000):

13 IF LITIGATION IS BRUTAL (AND IT IS), WHY DO CANADIANS DO IT? Employee Reasons for Work Problems % No reason given by employer 16.4% Shortage of work 14.5% Restructuring of workplace 16.4% Incompetence of Employee 12.7% Misconduct of Employee 12.7% Employee disability 2.0% Other reasons 25.4%

14 IF LITIGATION IS BRUTAL (AND IT IS), WHY DO CANADIANS DO IT? Employee motives for taking action in respect of Work Problem I felt that my employer had been unfair to me, and I wanted to be treated fairly % 68.7% I wanted financial compensation 13.4% I wanted to retaliate, or get back at my employer 0% Someone suggested it 0% Other 11.9% Not applicable 6.0%

15 IF LITIGATION IS BRUTAL (AND IT IS), WHY DO CANADIANS DO IT? Employees most important motives for considering legal action against employer in respect of Work Problem % Perceived unfairness by employer 60.0% Financial compensation for Employee 34.3% Unanswered 5.7%

16 IF LITIGATION IS BRUTAL (AND IT IS), WHY DO CANADIANS DO IT?

17 IF LITIGATION IS BRUTAL (AND IT IS), WHY DO CANADIANS DO IT? Earnings Category % of Employees who considered taking legal action $ 0 - $19,000 86% $20,000-$39,000 81% $40,000-$59,000 84% $60,000-$99,000 67% $100, %

18 IF LITIGATION IS BRUTAL (AND IT IS), WHY DO CANADIANS DO IT?

19 IF LITIGATION IS BRUTAL (AND IT IS), WHY DO CANADIANS DO IT?

20 WHAT DOES THE LAW AIM TO DO? The obligation of our profession [ ]is to serve as healers of human conflict. To fulfill our traditional obligation means that we should provide mechanisms that can produce as acceptable result in the shortest possible time, with the least possible expense and with the minimum stress on the participants. That is what justice is all about. - U.S. Chief Justice Burger

21 WE RE THE PROBLEM, NOT THE SOLUTION You re giving a speech about lawyers and conflict resolution? Huh? I don t usually connect lawyers with conflict resolution. - A Vancouver waiter speaking with Dr. Julie Macfarlane Markovits suggests that the law and its administrators penetrate and transform the attitudes of disputants, and that the legal system reconstitutes the issues between the parties to a dispute). Additionally, Markovits submits that lawyers objectify their clients concerns and separate them from the interests that they represent in order to make the concerns of the litigants fit within legal structures. Markovits, Daniel. A Modern Legal Ethics: Adversary Advocacy in a Democratic Age. 2008, Princeton University Press: Princeton, 188