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Who Ya Gonna Call?

Who Ya Gonna Call?


(January 11, 2011)

When to Talk to Your Employment Lawyer Instead of Your HR Consultant

Human resources consultants are often a great option for companies wanting to outsource services like compensation analysis, performance evaluations, employee training, organizational surveys, and/or benefi ts administration. But when faced with a specific situation in the workplace that could result in legal liability for your company, consider whether your fi rst telephone call should be to an experienced employment lawyer.

Both HR consultants and seasoned employment lawyers offer preventive services. Over the last several years—perhaps due to tough economic times—consultants have multiplied. Many are good, experienced HR veterans from companies that have downsized. Services are off ered at low rates, which is attractive in tight economic times. Certainly, employment lawyers are more expensive.

But look beyond the surface when comparing the value of the investment. An attorney-client relationship provides protections that do not exist when an HR consultant is your outside resource. If you become involved in litigation, communications with your lawyer are privileged; you can ask questions or off er comments that will not be disclosed to the employee and his attorney. On the other hand, what you ask a consultant and what a consultant says back will certainly be disclosed and may even become Exhibit A in an unhappy employee’s lawsuit. What your lawyer says to you is protected as legal advice; what your consultant says to you becomes commentary a plaintiff can use to prove his case.

Consider, for example, a simple phone call to a retained consultant asking for advice, and a reply email from him offering a few tips. From one brief act, a paper trail begins that labels an employee as a burden, reveals that the HR staff is not equipped to solve the matter alone, and outlines solutions that (perhaps) the employer did not fully implement. And those complications result from a well written and thoughtful response—think of the harm from a comment that suggests an actual violation of an employee’s rights might have occurred.

Beyond offering safe communications, from the beginning of the engagement an experienced employment litigator can see through to the endgame: what happens if this employee becomes a plaintiff ? A good employment lawyer knows how to develop evidence that will stand up to a jury’s scrutiny; knows how to manage the documents to meet the expectations of a judge who might later be deciding whether to allow or to dismiss a lawsuit; knows how a shift supervisor can be cross-examined for hours in a deposition over a few ill-chosen words in a performance evaluation or an incident report. This knowledge—of how facts need to unfold with litigation in mind—should be part of your process from the very beginning.

Of course, the end-game of litigation often involves legal issues that are not yet visible on the horizon. For example, when an employee complains that a health concern gives her rights under the Americans with Disabilities Act, the real legal problem may be something else entirely. It may be the company’s practice of docking the employee’s salary when she misses a few hours for treatment, or the different response given last month to a younger employee with a health issue, or the potential retaliation claim based on the medical leave the employee took, to name a few examples.

And, by the way:

  • What has the federal district court in this employee’s city recently said about the legal significance of job descriptions when evaluating ADA issues?
  • How does the state’s Industrial Commission view discharge if she has reached maximum medical improvement following her on-the-job injury but still cannot perform her essential job functions?
  • Is the Department of Labor likely to conduct an audit if it learns this one employee’s salary has been improperly docked?
  • What did the Court of Appeals conclude last week about how much of a lift ing restriction must exist before her bad back is a disability?
  • What do the new FMLA regulations say about your ability to ask her doctor if she really needs to be out of work?

These are not questions answered by HR experience, or even by using good, sound judgment. They are questions answered by knowing the law and applying it to the important facts—what lawyers do every day. Knowing precisely when to contact your attorney instead of your HR consultant makes all the difference when it comes to sound risk management. The costs associated with conferring with your employment attorney are far outweighed by the savings in litigation avoidance, something even good HR consultants are not trained to manage.

 

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Authors
Alexander L. Maultsby
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