5 things your lawyer likes to see in an HR person

Not a word about this week's goings on. I promise!

I was having a hard time coming up with a blog topic this week that didn't involve the never-ending election of 2020. (I propose that voting in 2024 be done via SurveyMonkey, but that's a subject for another post.)

And then I found a nice post by Suzanne Lucas, aka "The Evil HR Lady," about how to tell whether your Human Resources Department is good or bad.

I agree with all of Suzanne's points. But she gave me the idea to write about what your employment lawyer likes to see in an HR professional. As you can imagine, I have tons of opinions on that.

I've been lucky. My law firm has a great HR team, so I'm a very happy "user." Moreover, the HR people I work with as clients are wonderful -- a real pleasure to work with.

But what makes all of these HR folks so great? Read on!

HR Virtue No. 1: They have "spider sense." By the time the lawyers get called in, the harm is often done already and all we can do is grab a mop. An HR person doesn't have to be a legal expert (although that certainly doesn't hurt), but at least they have the instincts to get a bad feeling when certain actions are proposed, and they know to check in with their employment lawyers. Getting ready to fire an employee who filed a discrimination charge? Hmm, that seems risky. We're doing a reduction in force, and it looks like almost everyone on the list is 50 or older? Hmm, I wonder if that might be a problem. The non-exempt employees in that department seem to be working 45-hour weeks but are putting only 40 hours a week on their timesheets? Hmm, maybe we should run this by our attorneys.

HR Virtue No. 2: They are not afraid to "push back." Many times, a manager will want to do something that is . . . how shall we say? . . . inadvisable. My favorite HR people are not afraid to challenge those proposed mistakes. It can be done in a nice way, and if one has to, one can even ask one's lawyer to write a letter advising against what the manager wants to do. (I've written a million of 'em, and they often do the trick. They are also attorney-client privileged.)

What makes me sad is when a manager makes a bad decision, and it turns out that the HR person knew about it in advance but didn't say a thing. However, sometimes that's because the HR person is inexperienced or is not empowered to speak up. 

HR Virtue No. 3: They have a sense of humor. It's almost impossible to deal with HR issues or employment law without noting the absurdity that occurs on a regular basis. For example, this guy who choked on a Zoom conference. Or this resignation. If we don't laugh, we'll cry.

HR Virtue No. 4: They want to do the right thing for employees. (This is a big one.) Of course, we all prefer the "good guys." But even if you don't care about that, there are good legal (and mercenary) reasons for being a person of integrity who wants to do right by employees. First, although this doesn't make you or your company immune from lawsuits, it will probably significantly reduce your chances of being in one. Second, even if you do get sued, you are likely to win. Third, even if you had the best of intentions but violated one of those technical, nitpicky employment laws (for example, forgetting to include a notification that you'll be requiring a fitness-for-duty exam upon the employee's return to work with your FMLA designation notice issued pursuant to 29 C.F.R. Section 825.300(d)(3)), your violations may be easily corrected and not even be noticed by the employee or the government, and if noticed, may not result in any serious exposure for your company.

Virtue No. 5: They want to do the right thing for the employer. (This is also a big one.) In the end, the duty of an HR person is to look out for the employer's best interests. HR people are frequently criticized for being all about the company and not caring about employees. A good HR person will care about both, and the interests are not usually mutually exclusive. As noted above, doing the right thing by employees helps to protect the employer against lawsuits or potentially devastating monetary liability. In the world we're in (can we have a new one? please?), a good HR person will allow the employer to do the business it was meant to do with a minimum of disruption caused by angry employees, government agencies, or the court system.     

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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