We Get The Laws We Deserve

When an employer calls the employment lawyer, it’s usually to say, “I want to [insert questionable hr behavior]. Can I?”

Of course, what they really mean is “may I do it?”, and what they are really asking is, “Is what I want to do legal?”

The employment lawyer usually answers, “it depends,” and then proceeds to ask the client a number of questions about the factual situation, and gives the client a brief discourse on the relevant law.

Given that attorneys and accountants are the most valuable business partners that many businesses (particularly small businesses)  have, I think that “it depends” is the wrong answer in a vast majority of cases. The better answer is asking the client “why do you want to do that?”

Let’s face it – we get the laws  we deserve. We have anti-discrimination employment laws against certain protected classes because of a history of employment discrimination against those classes. More classes will be added, and more laws created, because discrimination continues. We have laws against retaliatory discharge because too many employers fired people who squealed, instead of fixing the problem being squealed about. We have wage and hour laws because too many employers will undervalue and overwork people who are desperate to feed themselves and their families.

So the next time a client calls and asks, “I hate gay people, and I don’t want to ever hire one. Is that legal?”, I am begging employment lawyers to be good business partners and community citizens, and not give  a discourse about the state of anti-gay discrimination legislation in your jurisdiction. Instead, explain to the client why taking a stance against hiring an entire class of population is a poor business practice in general, and how that business practice is not in the best financial interest of the client.

Do this for every questionable employment practice you are asked about. It will save you, and the client, from having to deal with the law that will inevitably follow.

[Author’s note 07/21/11 – Congress introduced a bill on July 18, 2011 that would make the unemployed a protected class by preventing hiring discrimination against them. Don’t say I didn’t warn you. ;-)]

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THINGS I DON’T UNDERSTAND #1 – Where The Sidewalk Ends

Author‘s Note: This will be my last blog post until sometime in early July.  I am going on vacation and will be too busy drinking in new cultural experiences to blog.  Be very jealous.

Author’s Second Note: This is the first of a series – hence the #1 in the title. At least that’s the plan.

No, I am not talking about the 1950 Otto Preminger film, or the 1974 Shel Silverstein book of children’s poetry.  I’ve never seen the film, and I understood the book quite well, thank you.  It was one of my daughters’  favorites and I’ve read it many, many times.  Repetition can help foster understanding.

I have looked at this several times now, though, and I still don’t understand:

I first noticed this sign while driving my dog to the chiropractor.   As smart as my dog is (he is a border collie, after all), he isn’t much of a conversationalist, so I was forced to deal with the dilemma of sidewalk-ends signage by myself.

Now, being a lawyer, I think I have a pretty good understanding of ludicrous warnings that the legal establishment has forced upon a public that can’t be trusted to know that hot coffee is actually hot.  Having a background in law enforcement to boot, I also understand that people do really, really stupid things sometimes, and have to be saved from themselves.

So, imagine an extremely drunk person walking – or staggering – down this sidewalk on a moonless night.  The street is devoid of lighting.  The drunk reaches the end of the sidewalk, and then . . . wait . . .S/HE WALKS INTO THE SIGN.  Instead of falling onto a reasonably soft bed of untended grass and wildflowers.  Knocks him or herself out cold and suffers heat stroke (or hypothermia, if a different season).  Isn’t that person suing the subdivision development company that put the sign there?

So I don’t understand “sidewalk ends” signs in general, and I really don’t understand some company lawyers. Can you help me out here?

This sidewalk end is about 50 yards away from the one with the sign.  Different development company. Do you think they build better houses? Or are they less likely to listen to their lawyers and therefor take more risks with their construction? Inquiring minds really want to know. :-)

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HR and the LAW (Part 1)

(This blog first appeared as a guest post at Creative Chaos Consultant.  Thanks to VM for giving me the opportunity to post it there and inviting me to cross-post it here.)

Everyone who is a human resources practitioner in the United States has their professional life impacted by employment law.  In fact, the smaller your HR department and company, the larger your direct role in legal compliance probably is. Even VPs of HR, whose entire job may be to determine strategic initiatives, don’t move without considering if those initiatives are legal.

So how does HR learn the law and become the company employment law guru? How can HR use existing employment law – often seen as a liability – as a leveraging tool for positive change?

Each one of those questions require a lot of words to discuss and answer in any meaningful way, so there will be a full blog devoted to each topic.

HR and LAW – Part 1


People just don’t play together nicely sometimes. That’s why laws exist.  Think of your company’s internal “laws” – the rules, policies, and procedures.  Why do you even have them?  You have them because the long history of the human race shows us that people, as a species, can’t always be trusted to behave the way they should.  Laws and rules are based on evidence of bad behavior.  Back in the Industrial Age, when the USA was moving from an agrarian society into an industrial/commercial giant, employers were not playing fair. So state and federal legislators began requiring or prohibiting certain behavior from the employer.  And that legislative push is not stopping anytime soon, because people – and the companies they run – are still not always good sandbox buddies.  So my first rule for the HR practitioner who wants to be legally compliant (and keep their company out of expensive employment law trouble) is:


Change your behavior if you need to; don’t force lawyers to make you treat your employees fairly.

It’s too late to make that your total strategy, though, because there are already tons and tons of laws on the books that you have to adhere to, no matter how nicely you are playing today.  This means that you actually have to KNOW some law, as much as it may hurt.  But how do you get that legal knowledge?

Many HR departments are totally dependent on counsel, either outside or in-house.  I’m not against that strategy (I am, after all, a lawyer), but I don’t recommend an attorney as your exclusive source of legal knowledge unless your company is large enough to have in-house employment/labor counsel. (More on this subject in a minute.) For most HR practitioners, and for those HR Generalists working in a solo environment, I say:


You heard me.  Get a comprehensive manual that is written (1) by lawyers in your state, (2) for an organization that represents businesses, (3) is updated at least every two years, and (4) covers both state and federal laws.  Yes, they are usually a little pricey, but they are far cheaper than calling outside counsel every time you have a question. If you have in-house employment counsel, go borrow theirs, because I guarantee you they have one.

I can’t recommend a specific manual because you need one that covers your own state as well as federal law.  I’m located in Michigan, and I prefer the manuals published by the Michigan Chamber of Commerce (The Employment Law Handbook), and the Institute for Continuing Legal Education (Employment Law in Michigan, An Employer’s Guide). No one paid me to say that.

I don’t recommend doing legal research on the web, because the information is far flung and often informal, and you need to ask a really pointed, specific question to gain anything valuable. It also takes a long time to sift through all of the noise.  Use the manual first, and then supplement the details on the web if you need to. If you insist on using the web, try the official government site for the bureau that monitors the specific law, like the federal Department of Labor.

Unfortunately, a manual is only going to go so far.  It will give you some sound guidelines for your company behavior and requirements, but there may be issues or specific problems that need a more knowledgeable take, because I know you are not going to memorize that entire manual.  So dealing with an attorney is not only inevitable, but often desirable. I have words of caution on this subject, though:


Most people and companies spend far more time agonizing over what type of computer to buy than what type of legal services to buy.   If you have actually used your manual and have some knowledge of the law, buying your legal service will become an easier task.  Repeat that:  YOU are the buyer. Your company pays the attorney, and they provide service to you. If you are not happy with that service – CHANGE IT. It’s a lot easier than changing your HRIS.

Here are some of my feelings about the type of lawyer to hire (both in-house and outside counsel):

  • Find an employment/labor law specialist.  Don’t hire or use your cousin just because they are cheap and available.
  • Find a “can do” attorney.  One of the biggest complaints of HR pros is that the attorney always tells them what they CAN’T do, instead of helping them DO it properly.  It’s an entirely valid complaint.  Yes, there are attorneys who help companies find a solution, instead of always telling them “don’t”, or “you can’t”.  They’re out there – look harder.
  • Have a voice in hiring your labor/employment attorney. This may be the most critical component of all.  If you need someone to help YOU with your human resources legal compliance, why would YOU let someone else decide who that person is going to be? You would not let someone else take away your decision on other HR resources to purchase or use.  Don’t do it with this most valuable of all your resources.
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