Here Come the Robots

Is your workplace about to be automated? A recent study by McKinsey & Company suggests that about half of the activities (not jobs) carried out by workers could be automated right now with currently available technologies. The study assessed 2000 work activities across more than 800 occupations, including mortgage brokers and CEOs. Those are a lot of activities affecting a wide range of occupations.

Not even lawyers are immune from the rise of the machines! Researchers have shown that algorithms can significantly outperform human judges in predicting whether an accused person will behave, or flee and/or commit a crime while on bail.

Does this mean that all workers are on the verge of being replaced by robots? Not yet at least. But it does mean that in nearly every industry, human workers should get comfortable working alongside machines.

But what are some legal implications for employers and employees?

They Took Our Jobs!

One of the results of automation of job tasks is the changing nature of the job itself. In some jobs, the automation of administrative or technical tasks can free up workers to focus on the uniquely human and strategic tasks which are most fundamental to the job itself. For example, at SpringLaw, our lawyers leverage state of the art AI and predictive analytics to conduct legal research, which frees up time to focus on advising clients and devising file and negotiation strategy. In this sense, the use of technology has changed some of our day to day tasks, but the essential character and essence of our jobs as lawyers have been enhanced.

On the other hand, consider the job of a school bus driver, whose job tasks include driving a school bus, but also include supervising a large group of children. Suppose the operation of the school bus becomes fully automated, but a trustworthy adult is still required to supervise the children and ensure they do not interfere with the safe operation of the bus. In this case, the essential character of the job has arguably been changed from driving a bus to supervising children.

When is Automation Constructive Dismissal?

If an employer does not specifically reserve the right to alter an employee’s essential job duties, an employee could argue that there was a fundamental breach of the employment contract and make a claim for constructive dismissal. If the new role is beyond, below or so completely unrelated to their current role, an employer may be inadvertently setting an employee up for failure in the name of progress.

Jobs and workplaces evolve and employees should expect the inevitable journey of change in today’s workplace. Employers should expect to have to continuously invest in skills training. If, however, there is a contractual agreement to perform a certain role and that role is fundamentally changed, employers are at risk of a constructive dismissal lawsuit.

The simple (but not easy) solution is to terminate the employee without cause and offer up a reasonable termination package. The problem arises when employers try to prove someone is not performing their role or is now incompetent. The threshold for a “with cause” termination is very high in Canada, and odds are it will be cheaper (and certainly more decent) to offer a package and look for a different skill set.

There will no doubt be a long, messy period between the investments in new software and technology to upgrade the workplace systems, the skill set misalignment, the discussions about what the role should look like, and then the hard questions asked about what next steps should look like.

Simply automating a task is sometimes not so simple. Employers will need to remain mindful of the impact of tech on people and while we don’t think that should stop progress, we do think there are employment law risks that face employers along the way.

Automation is in full swing and is here to stay.