00:00 Rich: The biggest concern that I hear from employees who are involved in a restructuring — whether it’s a layoff, an acquisition, or merger — the biggest concern that I hear is about a lack of transparency in communication.

00:25 Joe: Welcome to the Next Moves. My name is Joe Diubaldo and for the past 25 years I’ve been helping people build careers and build amazing companies. The truth I’ve learned is that we all get stuck at different times and I want to help you get unstuck, plan your next move, and the move after that. I think the best way to do that is to look at the choices that some of our guests had in front of them and the moves that they made. Hey everyone, welcome to the Next Moves. I’m Joe Diabaldo and this is my friend Rich Appiah — a well-known employment lawyer and someone who’s given me counsel a few times on some of the moves that I had to make. Welcome Rich.

01:02 Rich: Thanks for having me Joe.

01:02 Joe: For me, dealing with people that are going through some of the most vulnerable moments in their lives as they’re selecting a job, and companies that are trying to balance their interests while attracting and retaining the right employees — they find themselves at a crossroad making tough decisions all the time. And I’ve, aside from knowing you for years, I’ve watched you speak on some interesting issues on CBC and I thought it’d be good for the audience to know your background and where you’ve come from before we get into our broader discussion about work, the meaning of work, employment law, all of it. So why don’t you tell us the origin story of Rich.

01:43 Rich: Are you asking for my origin story?

01:43 Joe: I do want to hear it. Let’s hear it.

01:48 Rich: I feel like such a superhero. Well, thanks for having me Joe. I grew up in Hamilton — steel city — and it was at a time when it was a very white-dominant town. There were not a lot of people who looked like me or who were non-white in the city. I say that because that experience did kind of influence my ability to relate with people from other backgrounds, including the majority background — a dominant background that was different from my own. So I grew up in Hamilton, I went to high school in Hamilton, and as part of my origin story I always like highlighting the fact that while I was in high school I was mentored by some incredible teachers who really believed in me and pulled me out of my shell. Threw me into situations of discomfort and leadership roles and taught me to take a risk on myself, to always bet on myself. That was an important lesson for me to learn because at a young age I was able to accomplish enough that I got a very prestigious scholarship to the University of Guelph, which is where my next move was. I went to the University of Guelph on a President’s Scholarship, which at the time was the highest scholarship that the university gave to students for leadership and academic excellence. I was there for five years — I did my four-year degree in five years, so I had a little bit too much fun — but did finish with my degree in political science as well as some awards in student leadership. I always wanted to go to law school. I often get the question of when did you decide to be a lawyer? Thankfully for me, I was blessed that it had always been a dream of mine to be a lawyer for as long as I could remember. So there was no real confusion on my part as to where I would land next. I went to law school, I went to Osgoode Hall Law School in Toronto right after graduating from U of G. Then became a lawyer, worked at a couple firms — one firm for a very long time — and then in 2017 started my own practice. And now I’m a superhero.

04:25 Joe: So the story goes. The way you describe Hamilton is 100% accurate. I would guess, since we’re in and around the same age, that was the demographic in Hamilton. For you articulating what the ethnic mix was and how it looked — I agree 100%. Did you grow up in Hamilton?

04:44 Rich: Yes, I grew up in Hamilton.

04:44 Joe: Stony Creek. I went— oh my gosh. So what school did you go to in Hamilton?

04:50 Rich: I went to Cathedral.

04:50 Joe: You went to Cathedral? Yeah. Do you remember in 1990 when Degrassi came out?

05:04 Rich: Yeah. I never watched that show.

05:04 Joe: What? Never did? No? Never?

05:10 Rich: So we’re going to end this interview now.

05:10 Joe: Yeah, I’d like to. You said something earlier to me which I found really interesting when I said — what do people get wrong when they have to restructure their companies, when they have to make these changes? And I thought your answer was amazing. So can you break it down — what do people get wrong?

05:28 Rich: Well, I assume you’re talking from the business side of things. So the biggest concern that I hear from employees who are involved in a restructuring — whether it’s a layoff, an acquisition, or merger — the biggest concern that I hear is about a lack of transparency and communication. Including from people who aren’t ultimately affected — whose jobs aren’t ultimately affected by the restructuring. Their concern is that they don’t know. They live with this insecurity of not knowing what is going to happen to them, what’s going to happen to their jobs, their roles — from a job security perspective or from a perspective of what are they actually going to be doing day-to-day after the restructuring takes place, from a compensation perspective. So I have a friend who is an employee — I was going to say a victim but an employee — at a company that’s being restructured. The company is changing the benefits plan of some of the employees who are moving onto one of the other divisions. He’s concerned that there’s going to be a change to his benefit plan and what that will look like, what loss he’ll incur as a result. And of course the insecurity is even greater when a group of employees knows that it’s going to be the main target of the restructuring. If you’ve got a business that’s being acquired by another business, often in those acquisitions, shared services like human resources and finance — those divisions get downsized. Because they’re bringing together two groups of human resources experts or two groups of financial experts or two groups of IT experts — and they’re generally the first group of people to be targeted in a restructuring. So the insecurity for those people is even greater. I think the biggest problem that organizations encounter when they’re enacting restructuring is figuring out how transparent they can be, how well they can communicate, and managing the insecurity of the employees who are going to be subject to the transition.

08:14 Joe: I find within that a second question — which is why are they unsure of how transparent they can be? And I think that you would have insight into this.

08:25 Rich: I don’t think employees understand how challenging it can be for employers to navigate through their insecurities in a way that is transparent and empathetic and communicative without scaring them even more. If I know that my business needs to let go of 50 people in three weeks, and I also know that there’s a good chance six months from now I’m going to need to do this again — how transparent do you want me to be about that? As an employee, how transparent can I be? Do I want you to live with the next six months of insecurity and concern, or do I keep that to myself? Do I worry — will my rockstar employees, knowing that I’m going to be letting go of more people, just leave? And really leave my business a skeleton? Should I give more information or not? It’s such a tricky thing to navigate. I see it from both perspectives and it’s really hard from both perspectives.

09:46 Joe: I think the other insight I would bring is I don’t think employees understand how challenging it is to manage a business of any size when they’re not the ultimate decision makers. I say this as a small business owner — you’re smiling — you know what that is. It’s across the board, it doesn’t matter how big you are. It’s a challenging thing to do. I also don’t think it’s for business owners or business managers to expect employees to know how hard it is. Like I don’t know if it’s necessarily a given that employees think “wow, this is such a hard thing to do.” That’s not how you motivate and challenge employees to do their best — by telling them “I’ve got a harder job than you.” So it’s a challenge across the board. The work that we do is what gets us paid, which allows us to fund our life and do the things we need to do. We have obligations sitting on the other side that we are worried about. And there’s a sense of powerlessness — this is just happening to an individual. The broader context is you aren’t just stopping what someone does when they go to work each day — you’re actually stopping the interaction that they have with their colleagues, which is the in-group, out-group concern. You’re no longer in the in-group. And for me, observing that disconnection is fairly brutal for people. I want to ask you a question — what is the first thing you need to do with an individual when they call you? What state of mind are they in? And that’s separate and distinct — we’re going to address the company side in a moment. But when someone is restructured, what do you find the common thread is or the common conversation that you need to have with people?

11:50 Rich: I think it is — “is my employer being fair to me?” That’s ultimately the question that everyone comes to me and asks on the employee side. Is my employer being fair? The understanding of what is fair differs from person to person. I was dealing with a situation a couple weeks ago on the employer side of things where an employee who had been working for three years suggested she’d been constructively dismissed. Wrote to the business owner — he offered her six months’ severance — and she wrote back and said “I’m entitled to two years because it’s going to take me a long time to find a job. Come back to me with something better.” It’s like — what world are you living in? You think as a 32-year-old that you should get a severance package of two years when you’ve only been with the company for three years? So some people’s understandings of what is fair differs. My job obviously is to provide objective advice as to what is appropriate given the legal framework that we operate in. But ultimately the question I’m asked is — is my employer doing right by me?

13:14 Joe: Are there categories of individuals when they come to you in terms of their state of mind?

13:21 Rich: Yeah, there are. I can break down the state of mind of my clients into two categories on the employee side. The first is the employee who is absolutely devastated by the loss of their job and completely unsure how they’re going to manage through it. That’s on one extreme end in terms of how I’ve characterized it. There is that category of employee who is just quite devastated by what took place. That devastation arises from a number of things — primarily financial insecurity. That’s probably the number one source of the devastation. I often deal with — especially given my length of practice, I’m now an intermediate-senior employment lawyer — employees who’ve invested quite a bit of time into one business. Long service employees, 20-30 year employees, are still out there working and being let go. And that’s where the sense of identity really comes into play. Often I’ll hear from employees of any length of service, but particularly the long service ones — they’ll tell me how great their performance was, how they participated in company functions and committees, how they had great connections with colleagues and clients, and they just cannot understand why they’ve been let go. That’s where the identity, as I said, really comes into play. It’s kind of my job to tell them that unfortunately you don’t have to make mistakes for an employer to decide to let you go — that’s just a part of working life. Financial insecurity, long service employees, connections to work through identity — the devastation also comes from employees who have endured prolonged or acute periods of abuse at work and it finally comes to an end. With that, very frequently I’m managing the emotional impact of that, including from employees who loved their job but for the abuse they were subjected to. I dealt with an employee a few years back who lost her job after experiencing a long period of sexual harassment at work. One of the challenges she had was she really loved her job — loved what she was doing — but found it obviously difficult to manage through the abuse she was experiencing.

So there’s that category of employees who feel quite devastated about their job loss. And then there’s a category of employees who I wouldn’t say are nonchalant about it but who are emotionally better equipped to manage through it. Those are employees who have the financial security to manage their affairs without being dependent on the job. Employees who knew it was coming — I meet with employees on a fairly frequent basis who were able to predict they were going to lose their job, just from how they were being treated by their managers, or how their departments were being ignored, or just general restructuring — nothing nefarious. They knew it was coming and sometimes they’ve already been looking. They’re just wanting to know — is this severance package fair? And then there are employees who wanted to be let go. There are a lot of employees out there who are not really liking their job — not liking the work they’re doing, the people they’re working with, the mission of the organization — and are just waiting to be packaged out. And they do, and they’re like “hooray, I got out with a package.”

17:47 Joe: So you actually have three clusters of people. When you’re looking at the individual who is devastated — and that can be because of the obligation, the identity, and the attachment — you have to play one role with them and have a certain approach. The second group, which is they love their job but didn’t like what they were dealing with on a daily basis. Then you have the other person who is like “this is fantastic.” The idea of knowing it’s coming must give you a very different approach when dealing with them — like they knew it was coming, and then it’s more of a conversation of they’re happy about it and “let’s just get the best deal possible.”

18:34 Joe: On a certain level, people in that circumstance must want to be punitive with their employer. And how do you help them make that switch? I assume there are moments where you understand they want to be punitive — I just don’t know if that’s a valuable activity.

18:52 Rich: They don’t want to be punitive in the sense of being mean or going for the jugular. They feel really hurt, betrayed, devastated. There are always two sides to a story — and on the employer and employee side, there are often instances where a court sees it differently than my clients do. There’s no guarantee that if you go before a court — no matter how strong a case you think you have — a court will look to the employer or to the employee and say “you were wrong.” So my approach with clients who want to use the legal system to punish or find satisfaction — my advice is it’s not the right place to be. You’ve got to let go of that desire. If what you want is to be treated fairly under the justice system and fairly within a legal framework — that’s what I’ve explained to clients in terms of their legal entitlements — then yeah, we can talk about that. But my role is not to use the justice system as an engine to punish bad employers or bad employees.

20:27 Joe: I think it’s really important to double click on that — which is, look at you with the lingo. I feel like there’s a need to say that no matter how strong your case is and how much you’ve prepared, it can go either way when you’re sitting in front of — I would assume whether it’s going to be in a civil situation — you have a choice of a judge or a jury?

21:06 Rich: You don’t have a choice of judge in any context. Judge or jury — I don’t do jury trials. Employment law is not well built for jury trials and so there are few to none of them in the work that I do. I read a quote the other day — I can’t remember the exact quote but it was to the effect of — you can stand before a judge and have the greatest case in the world, but he may have just gotten into an argument with his wife that morning.

21:42 Joe: Well there was research — I don’t want to pull it now — but depending on what time of day it was, sentences or the granting of parole was moderated by whether someone was hungry or whether they had just come back from lunch.

21:55 Rich: I’m sure about it. We humans are processing information and our emotions get in the way.

22:00 Joe: Okay. So if I’m someone that gets restructured, I’m coming to you, I’m in a specific state — your job is to take me from the irrational potentially, or the emotional, and the struggle to think about what this could look like, what risks I’m taking, and what is fair under the justice system. What is reasonable to expect, what is fair, what is the allocation of resources. I think we all need to hear that because that intensity of “I was wronged” will overwhelm our logic and push us into a decision that may give us a terrible outcome. Is that accurate?

22:39 Rich: You know, I tell new staff — new lawyers who work for me — as a lawyer you are sticking up for someone who has no one else to stick up for them in a moment of trouble. And that’s the case in criminal law, family law, commercial litigation, employment law — all of those practices that have conflict embedded in them. A lawyer’s role is to stick up for someone who doesn’t have anyone else to stick up for them. But that doesn’t mean doing everything that the client wants you to do. It means giving them advice about what is fair, possible, probable, what the risks are — and giving them, with that advice, the empowerment to make their own decisions on their case. But if I hear one consideration that comes from my client — they tell me “they really hurt me” — then I say to them: this process will not make you feel better. There’s a good chance it won’t. Don’t let that be your primary consideration in your decision-making.

24:01 Joe: Let’s flip it to the company side. And I actually want to ask you — have you ever had a bomb go off, like a surprise, where you’ve been told something by one of your clients and when the curtain was pulled back in a discovery session it was exactly opposite to what you’d been told?

24:18 Rich: Oh yeah, I’ve had that a couple of times. I had that happen to me in a trial. There was one case where one witness contradicted my two other witnesses, and we had all gone through the evidence three or four times in preparation for the hearing.

24:41 Joe: So what happens in that moment? What is the next move?

24:41 Rich: You move on as quickly as you can to your next — you have to look like that’s exactly what you expected.

24:47 Joe: Sweep it under the rug. That’s exactly what you expected. What happened to make you start your own company?

24:54 Rich: I thought — and I was quite confident — I knew how to lead a team of people, how to build a business, how to set a mission or vision for an organization. Which I wasn’t feeling like I was getting an opportunity to do at work. And there was no opportunity for advancement. I was one of four partners — the two senior partners were equity partners and I was an income partner. While at some point I assume there was an idea that I would become an equity partner, during the course of my discussions with the equity partners, that was not on the horizon anytime soon. So I was just like — I’ve got to do this myself. I have to know what it’s like to start a business and run one. There were scary moments where I was like “how do I figure this problem out, what advice do I give?” But I underestimated myself. So if I were asked that question — what one piece of advice I’d give to someone starting their career — I would say don’t underestimate yourself. Always bet on yourself. If you’re a hard worker — and hard workers know that they are — if you’re a smart person, meaning you know stuff but you also listen really well — don’t underestimate yourself. Always bet on yourself.

26:22 Joe: Rich, there’s something I want to press on with this — you were 10 years, how far into your career were you at that point?

26:27 Rich: About 10 and a half years at that same firm. Still 11 years — a few months short of my 11 years of practice.

26:40 Joe: So you had spent 10 years building this skill set and these competencies and doing it at different levels with different people. It’s interesting because — having started a company myself — I knew there were things I didn’t know but I understood that the core competency required, because I had spent by that point the better part of 15 years doing it, I knew what I was good at and I knew that would be what would sustain me as I figured the other pieces out. But I also resourced quickly. I’m just curious — do you get hit with things that are not related to the legal profession but related to running a business that you find difficult to tackle?

27:32 Rich: The law isn’t the hardest part of my business. It’s the managing people. People management is the hardest thing I’ve ever done, to be honest. I thought — as I said a moment ago — I thought I had the skills to run a business. I was not outwardly or vocally, but I was often internally critical of how my old firm was managed and some of the decisions that were made. And I really want to write a note back to them — I never told them this — but I would want to write a note and say “I’m sorry that I was so harsh.” Managing people is the hardest thing that I do. We’re all just trying to figure out what we’re doing half the time.

28:37 Joe: And when you’re dealing with employment law and you’re running a company — I would guess it’s very different based on the size of companies that you deal with — but what do companies get wrong most often that you have to step in to address?

28:58 Rich: Not paying attention to small — what are perceived as small — grievances. I had an associate who left a couple years ago. She worked for my firm for a couple of years and then moved on to another firm. She and I are still in touch — and this is such a great learning experience for me. She had been asking for something around benefits, asking me to include it in our benefits plan, and I just kept kicking that can down the road. I wasn’t attentive to it. And in her exit interview with me she talked about that as being a huge source of frustration for her. I don’t know what the exact reasons were for it in terms of her personal connection to that particular benefit. But I also wouldn’t characterize it as trivial — it was really really important for her. And I didn’t pay attention to it. The mistake I made there was not paying attention to something that for someone else was really important but I perceived to be small.

30:19 Joe: So that’s actually from what we choose to do each day. But what are the things that we get wrong when we’re executing on the contracts, the agreements, the setup of the company? You must be running into consistent problems where you’re like — if we could just get this right, people do one, two, three, and you’re going to eliminate 80% of your pain.

30:47 Rich: Not having employment contracts is the number one problem that employers are making. Employment contracts set out — I say obviously, but actually they don’t obviously — the terms of compensation. I deal with employers and new businesses who have commission plans or bonus plans that are not clearly articulated and don’t provide the parameters in which employees will succeed and get the compensation they’re expecting. Sometimes they don’t have proper terms in them but they should have terms around compensation, policies around remote work, just the general expectations of what employees can expect at work. And then the biggest problem that these contracts have is they don’t have clear termination provisions that limit employer liability when they need to part ways.

31:47 Joe: Is that they’re being cheap? Are they being cute and trying to find a way around it? Do they keep it deliberately vague or do they just not want to pay for it and therefore don’t invest in it?

31:54 Rich: They don’t want to invest in it — I think that’s a big thing. New businesses don’t want to invest in it. And they think they know the law. Business owners will read the Employment Standards Act online or go to the Ministry of Labour website online and say “oh, if I need to let someone go, this is what I have to pay.” Well, that’s what you have to pay at minimum. And they’re shocked to find out that the law actually operates a little differently.

32:24 Joe: I feel like there’s — especially when companies start — there’s an idea of “let’s move fast and we will get to this.” And the problem is you can completely derail if not addressed early. So the contracts are one thing. I actually believe in what you’re saying — which is the biggest thing is to listen to employees. Listening to employees mitigates so much of this. And you’d be surprised — by the time you arrive at a termination with someone or a resignation from someone, the contract is what you go by. You are in a place now where what has been documented, what has been agreed to, is what is executed.

33:08 Rich: As long as it’s aligned with what is legal.

33:08 Joe: And where there is a lack of documentation and a lack of structure, there is room for interpretation and pain.

33:16 Rich: I think so. That’s at the outset. I think during the course of employment, the biggest mistake that employers are making when it comes to HR management is just not clearly communicating — communicating expectations, communicating when things are not going well and what employees need to do to improve, not mentoring well, and then also not providing positive feedback. “Hey, you’re doing really well.” Just the communication all around — poor communication all around is a source of pain points.

33:57 Joe: Okay, simple question. You’ve given me a couple of them — but where have things gone incredibly well? Almost where there doesn’t even need a footnote. You’ve stepped into things and you’ve seen that despite the fact it could be contentious, the separation between the two people works out incredibly well. What’s that ideal state and where have you seen it?

34:23 Rich: When you are fair. So I just recently helped an organization let go of — there must have been about 60 people — that was their first round of separations. They’ve been dealing with smaller groups since then. They put together a framework — they don’t have all the money in the world to give for severance — but they put together a framework of: here’s the baseline of what we’ll give to employees based on their years of service, then here’s what we’ll add if they were a manager of people, and here’s what we’ll add to that if they are older employees — their age matters. They put together a framework and gave out severance packages strictly adhering to that framework. What’s great about that is employees talk when they’re let go — especially in a mass termination. “What did you get, what did you get, what did you get?” And the worst thing that can happen is employees see that so-and-so got a huge severance package even though roughly speaking they may have had the same length of service. One might be older, one younger, but the severance package is so disparate in terms of its value to employees who themselves think they’re kind of equal. In this case, of the 60 they let go, maybe two or three had to come to me for advice on how to negotiate. And I think what went well there was — well communicated, managers were available and spoke to each employee individually, and they were equitable in terms of how they framed those termination packages and how they valued them. And I think those things really helped them succeed in that mass termination.

36:35 Joe: That’s incredibly helpful because you’re talking about two things — having a structured approach that allows you to make a good decision, which people don’t do often. And the second thing is that structure guides what people are given. And I hadn’t even thought about how prevalent the comparison of notes between individuals in a larger termination would be. And there’s the idea of treating fairly but not equally.

37:07 Rich: And I will say this Joe — it’s something else that I thought about when you asked me what insights I could bring. Most employers try to do the right thing. That has been my experience in 18 years of practicing employment law. Most — not all of them — but most employers do try to do the right thing. Do they always succeed at it? No. Does that lack of success come with malevolent intent? No.

37:40 Joe: Rich, thank you. This was awesome. And I think there’s a part two that will need to be done after we go through this. I appreciate the time. Is there anything you can tell us about where people should look for you and what they should call you for — since you’re a superhero?

37:58 Rich: I can be reached at rich@appiahlaw.com — Appiah is spelled A-P-P-I-A-H — law.com. I deal with businesses and people in terms of their employment law challenges. So if they’ve got a problem at work, I’m the guy they can be speaking to.

38:18 Joe: Awesome. Thanks man.

38:18 Rich: No problem. Thanks Joe.