AMA: Employment lawyers

[Jaggers]

Most people around here know me, but I did 5 years at a big firm, followed by some in house experience doing labour, employment, human rights, health & safety, etc. Ask me anything and I'll try to answer.

[Boris]

Hi Jaggers,

Thank you so much for taking the time to do this! As of now, labour and employment is the branch of law that attracts me the most and I have so many questions to ask.

1. What does your work routine look like? How often do you go to court? How much time do you spend with clients? Do lawyers in your field mostly do litigation, arbitration, or something else?
2. Are there any major differences between working for employers versus working for employees or unions? Do lawyers generally do a little bit of each or do they usually specialize in one type of clients?
3. You mentioned working in a big firm; were you doing labour/employment in that firm as well? If so, how does it compare to working in-house?
4. Are there any electives you would consider essential for someone who wants to pursue a labour/employment law career? Any extracurriculars?
5. Finally (I think that's more than enough for now), what would you say is the best aspect of your job? On the other hand, are there any aspects that you dislike?

Ultimately, I know that I have yet to start law school and that my interests are likely to shift before I graduate. However, I'm still eager to learn as much as I can beforehand. Obviously, feel free to share as much/little as you're comfortable with.

Thanks again! 🙂

bv 

[Zarathustra]

I heard it's fairly easy to go inhouse as an employment lawyer. Is this true from your experience?

[Jaggers]

On 11/25/2021 at 11:27 AM, borisviandu said:

Hi Jaggers,

Thank you so much for taking the time to do this! As of now, labour and employment is the branch of law that attracts me the most and I have so many questions to ask.

1. What does your work routine look like? How often do you go to court? How much time do you spend with clients? Do lawyers in your field mostly do litigation, arbitration, or something else?
2. Are there any major differences between working for employers versus working for employees or unions? Do lawyers generally do a little bit of each or do they usually specialize in one type of clients?
3. You mentioned working in a big firm; were you doing labour/employment in that firm as well? If so, how does it compare to working in-house?
4. Are there any electives you would consider essential for someone who wants to pursue a labour/employment law career? Any extracurriculars?
5. Finally (I think that's more than enough for now), what would you say is the best aspect of your job? On the other hand, are there any aspects that you dislike?

Ultimately, I know that I have yet to start law school and that my interests are likely to shift before I graduate. However, I'm still eager to learn as much as I can beforehand. Obviously, feel free to share as much/little as you're comfortable with.

Thanks again! 🙂

bv 

Sorry, I thought I had responded to this. I definitely typed out a response, but maybe never clicked submit and lost it in one of the endless restarts while upgrading my computer.

1. Right now, I never go to court or any sort of tribunal. I farm out everything that results in any form of litigation. In my last job I mostly did labour arbitrations - 50-60 a year - as well as unjust dismissal arbitrations and human rights hearings. It depends on your employer's model. There are some who let their lawyers do a lot of litigation, but in most cases you wouldn't do your own. I spend time with some business leaders, but our company is big enough that most things are funneled to me through HR rather than from the businesses directly.

2. I have only worked for employers. Most people pretty much specialize, although there are some small firms with small clients who do both. It's hard in the world of big companies and big unions because of conflicts (and just general views on employment law).

3. I did exclusively labour/employment (and human rights, which is a big part of that) at the firm. I did partner with the litigation people on some files, such as complex commercial disputes that involved equity-type employment arrangements, or injunctions or things like that.

4. Obviously any course that touches on labour/employment directly. Anything that deals with human rights. A negotiation seminar. Maybe advanced contracts, or remedies, things like that. Tax is very useful (tax is a huge driver in employment settlements because of the high rate of tax on income).

5. It is a very human area of law considering it is still essentially business law. You deal with all kinds of crazy situations, because anything you can imagine someone doing, someone is probably doing right now at work. And they will be caught eventually. It also isn't huge stress because you're not normally dealing with huge money issues. Some can be, if you're helping the business make a decision that will impact 50,000 employees. And there are occasional class actions. But the money that passes through the employment group in settlements is always dwarfed by the money passing through the general litigation group.

1 hour ago, Zarathustra said:

I heard it's fairly easy to go inhouse as an employment lawyer. Is this true from your experience?

I don't know if it's easier or harder than other exit opens from big firms. It was easy for me. My client just called me and asked if I was looking for a new job. I wasn't, but heard her out and took it anyways. For my current job I was basically headhunted by a company looking for my particular niche of expertise, which it was finding hard to find.

[Boris]

4 hours ago, Jaggers said:

Sorry, I thought I had responded to this.

Not a problem at all!

Thank you so much for the insight, I really appreciate it! 🙂

[Dragon123]

Jaggers I am an associate with more than five years labour and employment experience and work at a big firm. Just wondering from a client service perspective what you look for in external counsel? 

My approach when working with an in-house lawyer experienced in the area is different than HR folks who may not be nuanced in the law because you would likely already know what the issues are and why I would be recommending a certain approach.

I find one of the things that clients appreciate is responsiveness. Usually in house counsel is reaching out because they don't have the time or resources for something and need it done ASAP. I focus on being able to either address it immediately myself or if I am in a hearing, connecting with another person at the firm who can take it on right away.

Edited December 3, 2021 by Dragon123

[Jaggers]

Responsiveness is key, though I don't necessarily need *the answer* right away as long as I know when I'll get it. I don't often have things that are truly urgent, as long as I have enough information to manage expectations.

Obviously at this point I am fairly sophisticated and knowledgeable about the applicable law, so when I'm going to outside counsel I need someone who understands what exactly is the wrinkle that's causing me to need outside expertise, and how to creatively solve it. 

Most of the lawyers I hire now are either former mentors I used to work for at the firm, or former associates I used to work with. 

[PalomaBlanca]

I have one if you're still open for questions, Jaggers. 

What was the hardest part of establishing yourself as an L&E lawyer at your firm and why? Could be anything - substantive law/litigation, client relationships, meeting targets, difficult partners, particular type of cases. What did you do to fix it and did it work out?

I understand that your response is anecdotal but I figured it's worth hearing from someone who managed to rise through the ranks and make a career for oneself in this area of law. 

[Jaggers]

I didn't really find anything hard at the firm. I found it annoying to be micromanaged and have partners make stylistic changes to my writing that I didn't agree with (I was always open to substantive changes, of course). I found the short term emergencies that shouldn't have been emergencies annoying. There were difficult partners, but I just avoided working for them by saying I was too busy. All of this is why although I was a (very, even, I like to think) good lawyer, but never partner material 🙂

In house, the biggest challenge is being torn in all directions with almost no administrative support.

[Pendragon]

What are the steps to being a General Counsel? Like I have seen Legal Counsel, Senior Legal Counsel, Vice-President, Corporate Secretary, and General Counsel. Just wanted to get your thoughts on the order and how many years of experience you typically need. And are there certain areas of law that are more conducive to becoming a GC than others?

[Jaggers]

It really all depends on the size and complexity of the organization.

[Byzantine]

When did you figure out that employment/labour law was for you? I’m a 1L and have been enjoying an employment file I’ve been working on for a clinic, but still not sure where I want to end up when I graduate. 

Edited December 17, 2021 by Byzantine

[Jaggers]

I lost my first job out of undergrad because a bunch of people decided to unionize. Then I got a new job where a lot of my work was dealing with the collective agreement for unionized people. I was in a union and we went on strike and it was illegal for me to cross the picket line. So I became a management-side labour lawyer.

[Ben]

2 hours ago, Jaggers said:

I lost my first job out of undergrad because a bunch of people decided to unionize. Then I got a new job where a lot of my work was dealing with the collective agreement for unionized people. I was in a union and we went on strike and it was illegal for me to cross the picket line. So I became a management-side labour lawyer.

You were the victim of what sounds like an unfair labour practice, and then wanted to be a scab, so you became a management-side labour lawyer? Nice 

[Jaggers]

According to the Supreme Court, the first is not an unfair labour practice. And then I just wanted to do my job and be left in peace, but due to heavy-handed government intervention, I was not allowed to. So yes.

And I wasn't a "victim" of anything. Businesses close all the time. I just got a new job.

[AllanC]

2 hours ago, Ben said:

You were the victim of what sounds like an unfair labour practice, and then wanted to be a scab, so you became a management-side labour lawyer? Nice 

In summary: a business that clearly does not believe a newly unionized workforce is consistent with their ability to return an appropriate weighted average cost of capital is unfair for not putting capital to work in such circumstances, and a person that wants to do their job is a “scab”?

[Ben]

Haha yeah, businesses that close in the face of labour organization are "unfair." Either they don't have the capital to function without taking advantage of the unequal bargaining position of individual workers, or they are closing to prevent the organization of their workforce, which is at least possibly an unfair labour practice. And yeah, people who want to return to their jobs during a lawful strike are scabs. 

[Jaggers]

Yeah, I would have been a scab for sure. I had a great deal from my employer and was way overpaid for what I did, and had no interest in going on strike.

But being a scab is illegal in the particular circumstances I found myself in.

[Ben]

That's fair enough, I was at least partially teasing you about that path to management-side work. I wouldn't deny that work stoppages can be awful for individual workers.

[Jaggers]

I'm not touchy about this. I think that the way I practice management-side labour/employment law is informed by my experience as a worker in those situations. The partners at the firm when I worked there always told me I had to be less critical of our clients, but what even is the point of being a lawyer if you are not going to be clear about what the law is?

[soundofconfusion]

To @Jaggers, if you're still open for questions:

-Are there any skills/personality traits you think are particularly important for in-house labour/employment in a way that isn't true for other roles and specialties in law? How about the converse?

-Were there any misconceptions you had going in?

-If you're involved with hiring, what do you look for? What do you look to avoid?

-What's the biggest mistake you've seen someone recover from, either in the moment or over time? Is there any slip-up you've seen that's outright doomed someone?

-You say that a big challenge for you is being "torn in all directions with almost no administrative support". To the best of your knowledge, is this a quirk of your employer or is it true of management-side more generally/in-house L&E as a whole?

Also, thank you for what you've written so far! I've found it very informative.

 

To anyone else that might want to chime in, especially people who worked union-side, I'm interested in all of the above for you as well if you feel comfortable talking about it, but I have a few more questions:

-What's the typical day like?

-What are some of the more challenging things you routinely do?

-How did you end up in-house? Did you go associate at a firm and switch after a few years? Did you article there and get hireback? If you articled somewhere else and didn't get hireback, how quickly/easily did you land where you are now?

-Was there anything you did in law school--curricular or otherwise--that was particularly helpful? Anything particularly unhelpful? Are there any courses you'd recommend to show interest? Are there any schools that are particularly good or bad at helping you break into the field?

-Do you feel good about the work you do in terms of ethics? Do you enjoy your work?

Please excuse any stupid questions above; I am but a foolish, lowly admit.

[CrimeAndPunishment]

On 11/30/2021 at 9:30 PM, Jaggers said:

 

4. Obviously any course that touches on labour/employment directly. Anything that deals with human rights. A negotiation seminar. Maybe advanced contracts, or remedies, things like that. Tax is very useful (tax is a huge driver in employment settlements because of the high rate of tax on income).

 

Can you please elaborate on the tax issues?

[CrimeAndPunishment]

On 12/17/2021 at 10:51 PM, Jaggers said:

I'm not touchy about this. I think that the way I practice management-side labour/employment law is informed by my experience as a worker in those situations. The partners at the firm when I worked there always told me I had to be less critical of our clients, but what even is the point of being a lawyer if you are not going to be clear about what the law is?

Can you please elaborate on the being critical of your clients part as well?

Edited December 28, 2021 by CrimeAndPunishment

[BlockedQuebecois]

15 minutes ago, CrimeAndPunishment said:

Can you please elaborate on the tax issues?

The CRA treats settlement agreements the same as damages awarded by a judge, and thus the surrogatum principle applies. That means amounts provided for in settlement agreements take on the character of the payment they are meant to replace, and thus are taxed or not taxed based on their proper classification. 

Income is taxable and subject to withholding at source. Many things included in an employment-related settlement agreement, such as payment in lieu of notice, are properly classified as income. General damages, legal fees, and amounts paid for re-employment counselling are tax free and not subject to withholding.

It is therefore in the interests of the employee to have as much of the settlement agreement classified as damages, legal fees, etc. as possible. There's no real difference for the (former) employer, except in so far as they may be subject to penalties from the CRA if they find the settlement classified monies actually properly classified as income as some type of tax-free payment, so the employer has an interest in ensuring all the monies paid via the settlement agreement are properly classified for tax purposes. 

There are also some employment-specific tax law quirks, such as the possibility of transferring settlement funds directly into an RRSP or classifying severance payments as a retiring allowance, which may be subject to a lower withholding amount at source depending on the specifics. That can confer a temporary tax advantage as the funds remain available for use during the year, although they will be taxed at the appropriate rate once the return is filed. 

I didn't take any tax or employment law courses in law school, so I'm sure I am missing some considerations and Jaggers may fill those in, but that's my general understanding. 

[Coffeecadet]

Hi @Jaggers, thanks for doing this. By way of an introduction, I'm a current articling student strongly considering join my firm's L&E group. However, I also recognize that I probably don't have the ambition to pursue partnership and am interested in learning about potential exit opportunities. 

I'm curious if you can touch on the kind of work you did in-house prior to COVID, and how that's changed during the pandemic? Further, and to the extent this makes sense, do you think the pandemic will have any lasting impact on the kinds of work in-house L&E lawyers will do going forward, post-COVID? 

Thanks! 

Edited April 3, 2022 by Coffeecadet