Law Times

Law Times • may 9, 2016 Page 13 www.lawtimesnews.com Could raise demand for employment boutiques More investigations after new laws on harassment? BY MICHAEL MCKIERNAN For Law Times N ew provincial legisla- tion on sexual harass- ment could accelerate the growth of work- place investigations as a practice area for employment boutiques, according to lawyers in the field. Ontario's Bill 132, the Sexual Violence and Harassment Ac- tion Plan Act, which received Royal assent in March, creates a statutory duty for employers to conduct investigations into "in- cidents and complaints of work- place harassment." The bill explicitly expands the definition of workplace harass- ment to include sexual harass- ment, and it even provides pro- vincial inspectors with the power to order an impartial investiga- tion in certain circumstances, at the employer's expense. Janice Rubin, co-founder and co-managing partner of Toronto employment law boutique Ru- bin Thomlinson LLP, says the changes will bump investiga- tions up the priority list of man- agement at employers across the province. "There is going to be a lot more emphasis on making sure that investigations are conduct- ed in the first place, and also that they are done in a way that is defensible and doesn't raise questions about their quality. That's going to be a challenge," says Rubin, who literally wrote the book on this issue, as co- author of the Human Resources Guide to Workplace Investiga- tions with law partner Christine Thomlinson. "I know that some of the reports that we have seen when we review investigations would not pass muster if scruti- nized by an inspector." Rubin predicts the higher stakes will prompt more em- ployers to look outside their own ranks for help getting investiga- tions right. But even then, she warns an external appointment is no guarantee of quality. "You can see good internal reports and bad external ones. In the world of external inves- tigators, it's caveat emptor; there's no certification or licens- ing. It's a bit like the Wild West right now, so you have to be re- ally thoughtful about who you retain," Rubin says. According to Rubin, Bill 132 is part of a long-term legislative trend that has increased the im- portance of workplace investiga- tions. Ontario's Human Rights Code imposes a duty on orga- nizations to investigate in cases where they receive a complaint of discrimination, while Bill 168, a 2009 predecessor to Bill 132, forced employers to come up with policies for dealing with harassment complaints. In tandem with legislative developments, Rubin says a cul- tural shift has made employers more aware of the reputational costs of failing to deal properly with complaints of discrimina- tion and harassment. The result for her firm has been a dramatic growth in investigations work ever since it started to become a significant part of her practice, around 15 years ago. "I think that there is an in- creased sensitivity among em- ployers and institutions to the potential legal costs of ignoring workplace harassment, which includes sexual harassment," Rubin says. "Quite apart from the legal consequences, that sensitivity has been fed by high- profile stories about the costs of that type of behaviour." In 2013, Jennifer MacKenzie sensed the same shift, and opened her own law firm, JMJ Workplace Investigations Law LLP, with her partner Monica Jeffrey. It special- izes entirely in third-party neutral workplace investigations, a con- cept MacKenzie had seen emerg- ing in the U.S. "California in particular has a lot of lawyers turned workplace investigators. Their laws seem to be a few years ahead of ours, and there are a lot of obligations in there on employers to conduct investigations," she says. Most of the firm's investiga- tions currently relate to allega- tions of bullying and harassment stemming from policies and pro- cedures developed by employers following the passage of Bill 168. "I think Bill 132 is going to expand the need for investiga- tions even further," she says. Despite the increasing num- ber of lawyers taking on work- place investigations, Howard Levitt, a senior partner at Levitt Grosman LLP, remains a skeptic. "In some ways, lawyers are the worst people to do workplace investigations, and certainly the most expensive," he says. Levitt says he has seen em- ployers spend more money on investigations in an attempt to justify firing someone for cause than it would have cost to just terminate them without cause and compensate them for the notice period. "It's been badly used by em- ployers, generally in the public sector, because they want to be seen to have done the right thing, regardless of the cost," he says. According to Levitt, an inves- tigation carried out by a lawyer for a regular client could also jeopardize the relationship, since in cases where the investigation results in litigation, the lawyer who investigated will be con- f licted out of acting for the em- ployer in the court case. MacKenzie says her firm side-steps conf lict concerns by confining its practice entirely to investigations, and has been the beneficiary of referrals from oth- er employment lawyers for that reason. LT labour and employment boutiques Janice Rubin says Bill 132 will bump inves- tigations up the priority list of manage- ment at employers across the province. mathewsdinsdale.com Leading local HR lawyers in one global group With 24% more HR lawyers ranked globally than any other legal services organization, Ius Laboris off ers exceptional HR legal services to corporate counsel and HR professionals. For 60 years, Mathews Dinsdale has been the law fi rm trusted by Canadian employers to manage workplace law issues. MathewsDinsdale_LT_May9_16.indd 1 2016-05-05 10:59 AM

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