Human resources executives work a lot with laws and lawyers. The relationship between a company and its employees is one of the most regulated and litigated.
Yet the goals and tools of human resources are often very different than those of the legal department. So you end up with the “HR answer” and the “legal answer” to the same problem. Knowing how to understand and evaluate what your legal department does is important in making the right decisions for the company.
Just like a cardiologist views everything as a heart problem, a lawyer sees everything as a legal problem. So you may want their opinion, but you may not always want to follow their advice.
Essentially the role of a company attorney is to minimize risk, ensure legal compliance and to draft and/or bless contracts. This role does not always lend itself well to helping and managing people in their jobs and lives.
What Lawyers Do Well
Employment lawyers tend to think about problems in one of two ways: 1) whether it violates the contract/rule or not; and 2) whether it could result in litigation or not.
If you ask a lawyer a question, you are usually going to get a legal answer—which may or may not be want you want.
Lawyers like to apply rules. They like things in writing. They want the contracts to cover all eventualities. When in doubt, a lawyer will always advise against doing something new, different, or unknown. Lawyers are trained to play it safe and avoid risk.
Know the Outcome You Want Before Consulting the Lawyers
Lawyers will tell you what you can and can’t do under the contract or the law. They are also very good at giving you the pros, cons, risks and benefits of various possibilities. If you want advice, expect the safest course of action that has the most support in the documents. So if you aren’t sure what you want, the conservative approach is usually what you will get from a lawyer.
However, if you go in asking how to achieve a particular outcome, lawyers are very good at figuring out how to make that happen. If you have an employee who needs to go to rehab or be terminated, let the attorney know which you would prefer and why. That will make both your jobs easier in evaluating the legal and policy protections involved, the risks and expense, and in formulating the plan of action.
If you don’t know what outcome you want, then ask for the options and an analysis of those options. Don’t ask for advice. Once “legal” takes a position on the best course of action, it will be harder to overcome if you believe an alternative is better.
It’s Always Easier to Prevent Something Than to Fix It.
Often people consult lawyers after the problem has become a crisis that either requires or has resulted in court action. Litigation is bad. It is time-consuming, expensive, exhausting and never solves anything. Litigation is a tool of economic leverage, not a path to truth or justice.
The best way to handle any problem is to prevent it or resolve it early. It is worth a month or two of severance to get a full release from a troublesome employee on his way out the door. If a mom repeatedly shows up late because of problems with dropping her toddler at preschool, figure out whether a temporary change of hours or other accommodation will prevent some sort of disciplinary procedures.
If you can come up with a solution that works for everyone, the lawyer will usually be happy to get on board and prepare the documents or determine if the resolution complies with law or company policy.
So before you consult with the attorneys, figure out if there is a creative solution to the issue, then ask for the lawyer’s help in implementing it.
If you wait until the issue becomes something that requires an attorney’s intervention, the outcome will almost always be more stressful, time consuming and less satisfactory for everyone. This is not because attorneys make it that way. It is because the situation has reached a place where positions are entrenched, each side has convinced themselves of the story, and everyone wants her way instead of a compromise or solution.
The best way to work with your employment lawyers or legal department is to develop a good relationship. Talk to them when issues come up, so that you can prevent problems together. And remember, not everything is a legal problem or requires a legal solution.