Thursday, October 26, 2017

When should HR call its lawyer?

Yesterday, I read When is an Employee Issue a Legal Issue (and When Is it HR)?, written by Dan Schwartz on his always excellent Connecticut Employment Law Blog. Dan posits that there are some instances when a business almost always should get legal involved with an employee issue, such as when it receives a “lawyer letter”, receives service of an agency charge or lawsuit, needs to conduct a privileged investigation, or confronts a complex or novel legal issue.

I’d like to address this same question from a more macro level.

Many companies choose to do it alone, and not involve their legal counsel on employee issues, out of a fear of the expense of engaging counsel.

Yes, lawyers can be expensive. And, yes, I usually do not charge my clients for the five-minute phone call to talk through a quick issue.

Moreover, what these cost-conscious businesses fail to realize is—
  1. They are experts in their businesses, not the laws that govern them. 
  2. They don’t always recognize the (fuzzy) line between a business issue and a legal issue. 
  3. When the line from business issue to legal issue has been crossed, the longer you wait to involve counsel, the more expensive you make your problem. 
I know what you’re thinking. “Jon, you are advocating for your own self-interest and bottom line.”

Wrong. In fact, the opposite is true. My bottom line increase when you ignore the above wisdom. Litigation is a profit center. Compliance is not. Yet, most companies ignore the latter, cross their fingers, and pray that the former does not catch up with them.

I’m not suggesting that every fly needs a sledgehammer, but some flies are baby dragons. Don’t let that dragon grow, especially if you’re not trained to recognize the difference between the fly and the dragon.

HR can handle many problems on their own, but if there is any doubt or grayness at all, I prefer that my clients pick up the phone (if for nothing other than a sanity check).