HR Legal Improvisation Mistakes Hurt the Bottom Line in Business and at Work
I’ve been a Human Resources Practitioner for over 25 years. As much as I love working on HR legal issues, I’m not a lawyer (and I don’t play one on t.v.). Perhaps it was my early-HR-career training at General Electric – we were trained early and often when to pick up the phone and call the in-house labor counsel to loop them into tricky / potential HR legal issues. It’s also the reason why to this day, I love partnering with labor lawyers. Perhaps that’s why I know where the bright line is when a potential HR legal issue arises, and when it’s time to call an employer-side labor lawyer.
For example: several years ago, a well-meaning network contact referred a small-company office manager to me as a potential client. “We terminated this employee a year ago,” Office Manager told me during her call to me. “And we forgot to send them COBRA paperwork. Can you help me? Should I email you the details?” My response was swift and sure. “No. I can’t help you, and if you email me, you won’t have attorney-client privilege with me, because I’m not a lawyer – so please don’t email me. You need to call an employer-side labor lawyer, as this is now an HR legal issue. If you need a referral, please let me know.” Thankfully, Office Manager immediately called an employer-side labor attorney, and worked with that attorney to resolve the issue.
I know it’s hard for companies and organizations smaller than GE (probably a good portion of all employers!) to know where the bright-line-trigger is to pick up the phone and reach out to an employer-side labor lawyer – most employers don’t have in-house labor counsel and/or the benefit of learning like I did where that bright line is. This group of employers usually starts working with an employer-side labor lawyer when, unfortunately, they receive a state or federal wage-and-hour or discrimination complaint.
While it’s not possible to give you the entire benefit of that bright-line knowledge in a short blog post, a good place to start to see the bright line is that HR Practitioners (internal and external) are the (presumed) subject-matter experts on adherence to or violation of an organization’s HR policies (as one of my employer-side labor lawyer colleagues so eloquently explained it). When a potential HR legal issue arises, competent HR practitioners work with their operations partners to reach out to partner in turn with reputable employer-side labor counsel to confirm and resolve, or effectively rule out, an HR legal issue. And unless your general counsel / company lawyer spent several years as a labor lawyer with the accompanying track record and who has kept current on HR legal trends and case law, generally speaking, a general practitioner lawyer is not a good substitute for an employer-side labor lawyer.
Have a potential HR legal issue as an employer? Pick up the phone and call a reputable employer-side labor attorney. If you don’t know one, give me a call and I’d be happy to refer you to a great employer-side labor attorney. In my 25+ years of HR experience, that good counsel on the front end almost always saves you and your organization heartache and big hits to the bottom line on the back end.
How will you effectively handle (not improvise) HR legal issues in your organization, in business and at work?