Workplace Law as Information Law, Part III – Job Stability, Departing Employees and Information Theft

This is the third of three posts on how information and privacy issues are shaping the future of employment law. Two weeks ago, I posted on the impending clash between information governance and personal use of corporate IT systems. Last week, I posted about internet use and the “virtualization” of workplace harms. This post is on labour stability, departing employees and information-related harms.

“Job stability, departing employees and information theft” is such a good heading for this “big picture” look at workplace law. I’ve long had a theory that departing employee litigation is on the rise because of declining job stability and the increasing opportunity to steal valuable employer information.[1] I’m writing now to say that this theory could be flawed.

First, at least one basis for my perception appears to be flawed. According to economist Andrew Heisz, Canadian job stability rates have been flat, at least since 1977.[2]

Second, I have not found any Canadian evidence that departing employee litigation is actually on the rise.

Using QuickLaw, I conducted the following searches on an all-Canada and year-by-year basis: (1) <departing/4 employee>; (2) <“restrictive covenant” /10 employ!>; (3) <elsley /7 collins>; and (4) <“anton piller” and employ!>. Here are the results.

We ought to be very careful drawing conclusions based on these numbers. Aside from search term validity issues, the statistics above (a) only measure matters that were the subject of a judicial decision and (b) don’t account for changes in QuickLaw coverage over time.

One might argue that the 1990 and 1980 numbers illustrate some positive trend, but the QuickLaw coverage limitation precludes such a conclusion. In fact, I am more inclined to very cautiously conclude that there is no upward trend in departing employee litigation. Can anyone identify data or a resource that speaks to this issue?

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