The term “compliance” in the employment context means satisfaction of whatever is required by those laws and regulations applicable to the employment relationship. It cannot be accomplished without an expert-level understanding of not just employment law, but the basic skills that underlie any practice of law. This means understanding the rules of statutory interpretation; the capacity to distinguish between differing legal authorities and identify which is controlling; an ability to read and understand case law and then—this may sound familiar—apply the legal precepts to a new and unique set of facts. The legal field is fiercely competitive, and the quality of an attorney’s services will always be judged first and foremost in these respects.
The Critical Distinction Between Legal Compliance and HR Practice
So-called “HR professionals” have none of the necessary training to apply these skills properly, and are likely unaware that they are even implicated in the practice of law. It is unsurprising and predictable that “HR compliance” regularly leads to disastrous results.
Real-World Examples of HR Compliance Failures
Here are just a few examples I have seen, with the details just specific enough to be useful:
- An employee with a non-physical disability demonstrates a verbal tic to a customer during a sales interaction. The customer is disturbed and offended, and promptly complains to management. The complaint reaches “HR,” who reviews the employee’s conduct as described by the customer and immediately terminates the employee. The employee brings a lawsuit under state and federal law against the employer for disability discrimination and retaliation, which the employer is compelled to settle for a large sum.
- A manager makes a discriminatory remark to a recently hired employee, who contacts HR to complain. At the same time, the manager, knowing that they exposed themselves to potential discipline or termination by the company, reaches out to HR to seek the termination of the employee instead. HR, seeking to please company management, arranges for the summary termination of the employee before a complaint is filed. The company now faces a lawsuit for discrimination as well as retaliation and public embarrassment once the case reaches federal court.
- An employee requests FMLA leave for a minor injury she claims she sustained at home after failing to show up for work for several days. The employee refuses to present documentation of the injury other than verification of an emergency room visit. The company’s HR staffer grants the employee leave, and the employee takes the full 12 weeks. The employee, who would have been ineligible for FMLA leave, is in fact working a second job. The company eventually terminates the employee and is met with a lawsuit for FMLA retaliation and interference. Their inability to contest her eligibility after granting her leave limits the employer’s ability to have the suit dismissed, increasing the pressure to settle.
- A pregnant employee working as a hotel room cleaner requests accommodation. Human Resources makes strenuous efforts to meet the employee’s accommodation demands, including by interfering with the work of other employees. None of these measures satisfy the employee, and, out of frustration, HR takes steps to terminate without explanation during the interactive process. The company faces a lawsuit under state and federal law applicable to pregnant workers.
- An employee engages in sexual harassment of another employee. The accused employee is a member of a protected class. The employee subject to the alleged harassment eventually complains to Human Resources, and the HR staff involved quickly terminate the accused employee after a cursory investigation. The now-terminated employee threatens legal action after identifying another employee accused of sexual harassment who still works for the company and is not a member of a protected class. HR responds to the terminated employee in writing with seemingly inconsistent explanations for their termination of employment and failure to conduct a thorough investigation. The company is now vulnerable to a “pretext” argument in a lawsuit by the former employee, as the now-terminated employee’s plaintiff-side attorney quickly discovers and leverages in settlement discussions.
- An HR professional withholds an employee’s cash benefits on the belief that the employee was not using them, and believes the benefits are available on a “use it or lose it” basis. This policy is not reflected in the company’s handbook and the HR employee turns out to be mistaken over the employee’s use of the benefit. The employee brings a wage complaint with the state department of labor and the employer is subject to liability for up to twice the amount of withheld payment.
The Importance of Early Legal Consultation
As illustrated by the examples above, by the time you are in litigation, the die is already cast; whether you have complete or partial defeneses available or can succeed on a motion to dismiss are determined by your decisions well before the complaint is served. The scenarios I describe are anything but an exception; they are the rule. Non-legal professionals necessarily lack the abillity to view the long-term impact of their actions and legal exposure that may result down-the-line.
The common thread in all of these real-world scenarios is that an employment lawyer is not consulted until after the lawsuit, or threat of one, is made. At that point, the damage is done. The HR employee’s sheer incompetence is exposed by the fact that involvement of an employment attorney would have counseled precisely against the actions taken by so-called “HR professionals” in each instance. Because HR acted on its own and chose not to involve legal counsel, their employer is exposed to legal liability as a direct result.
Problematic HR-Crafted Employee Handbooks
No less irresponsible is entrusting “HR compliance” supposed experts with the preparation of materials such as handbooks or individual employer policies. A handbook is often “Exhibit A” in any litigation; it is something that may be reviewed by administrative investigative agencies when a complaint is made, and, under certain statutes, can provide grounds to infer policies that the employer never intended, based on what it does or does not include. I have prepared and revised handbooks for national, regional, and local companies of all sorts. The difference between one that has previously been reviewed by legal professionals and one coming from one of many “HR compliance vendors” is night and day.
Even a handbook prepared by an employment attorney may include some statements that might not reflect recent changes to the law, if it was prepared some time ago. These handbooks usually require minimal updates. “HR handbooks” are often chock-full of boilerplate, meaningless regurgitations of something that once came from a lawyer. They are often prepared without regard to controlling state law, omit mandatory provisions, and are unspecific where a lack of detail is necessary to avoid unintended inferences.
The Accountability Difference: Attorneys vs. HR Professionals
Well, what about incompetent attorneys, one might ask? Aren’t these anecdotal examples unfairly selective? Lawyers are expensive, and not everyone can afford to hire employment counsel! If a business is running just fine as is, that’s evidence enough that we don’t need to talk to employment counsel!
These refrains reflect an easy-to-spot ignorance of the role of an attorney versus that of an “HR professional” that can only be the fault of the lawyers and licensing bodies that permitted it to flourish.
In the first instance—as the ABA’s proposed definition made explicit—attorneys are subject to mechanisms of accountability that are virtually unheard of in their severity and strictness across other professions. An attorney who commits an egregious error is subject to professional discipline, which may result in the revocation of his or her license to practice, and is liable to the client for malpractice and may be responsible for damages as determined by a court of law. Complaints against attorneys for misconduct are public, and anyone interested in hiring an attorney will be able to review his or her disciplinary history or civil history lack thereof. Moreover, the very fact of holding a bar license is a sign that an attorney has satisfied rigorous educational requirements, testing, investigations of character and fitness to practice, and is held to those standards on an ongoing basis.
There is no equivalent system of accountability for “HR professionals.” The certifications are meaningless in that they are easily obtained with little cost or time investment, do not require any educational attainment, and do not imply satisfaction of any uniform or objective standard that means anything. You have no right to sue an HR professional who leads you into a legal pothole any more than you can sue your gardener for his or her legal advice. And the HR professional has no obligation of confidentiality. Finally, there is no body that can preclude someone from the “practice” of HR compliance for repeated misconduct. If a human resources professional hired by a company were responsible for one or more of the scenarios I described a few paragraphs above, the company hiring them would likely never know of it.
The ABA’s Missed Opportunity
Increased legal exposure and enlargened liability are the consequences of engaging a non-legal professional or other generalist to perform services for which they are not qualified and lack any certification or accountability. The basic premise that the practice of law should require a law degree is one that should have been enforced by the ABA two decades ago. Their failure to do so has harmed the public interest and served neither employees nor clients. HR professionals eager to justify their positions (and high rates—often higher than many small law firms)—by taking a heavy-handed approach to personnel management. As a result, employees’ rights are frequently violated in obvious ways by HR administrators that would be spotted and prevented by an employment attorney. In turn, employers that depend on “HR compliance” are left with enormous, unrecoverable costs when faced with litigation fees and settlements.
In short, “HR compliance,” to the extent it goes beyond mere administrative implementation, is a misnomer and a fraud, and one the ABA had the exclusive opportunity to call out two decades ago. To call the ABA resolution that was adopted as a punt to the legislatures is to understate the degree to which the ABA failed its role as a professional licensing body. Indeed, the contemplated rule was a “Model Rule” that is, in of itself, a recommendation to legislatures suggesting how a statute might be articulated if the principle behind it is adopted. The ABA has no authority over state legislatures in the first instance, or state bar committees; the model rules are advisory. In the face of pressure from the HR industry, the ABA buckled and refused to even articulate a coherent model rule that would have threatened a widespread but improper practice.
The Proper Role of HR: A Bridge to Legal Counsel
Therefore, the proper role of HR is that of a two-way conveyor belt between the workforce and legal counsel. To shield employers from legal exposure, HR must implement the body of written policies and procedures that have been drafted by legal counsel and approved by management. Employment counsel should be apprised of employee interactions that implicate these policies on some level—including reports of misconduct, leave requests, disability accommodations, and wage issues—and HR must also ensure these records are readily available for attorney review.
Given that a single lawsuit can lead to hundreds of thousands of dollars in litigation fees, responsible HR staff will recognize and adhere to such a system. Any resistance to oversight by employment counsel from HR “professionals” is itself a red flag that employers would do well to heed. Those who bristle at legal oversight are precisely the ones most likely to create the very liability they were hired to prevent. HR professionals lack the certification, training, or qualifications to identify when to bring in an attorney and should not be given the discretion by their employers to do so in light of the stakes at play. It is on employers and businesses to set those boundaries; allowing others to set them for you will only lead to disaster.
Concluding Remarks:
Businesses should fail or succeed based upon their own judgment as to what the market demand for their product or service is, and how best to provide that product or service. Do not let your business be impeded by avoiding simple mistakes and landing yourself in legal and financial hot water after failing to consult the right (legal) professionals.