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This type of training seems like a natural fit for HR consultants. But how far can independent HR consultants take this training on their own before treading into legal areas that might be beyond their expertise and might require input and counsel from an attorney?
Robert Fallis, Ph.D., is with Fallis and Associates, Inc., in Seattle. The short answer to the question, said Fallis, is “it depends.” It depends, he said, on whether the HR professional has enough training and background with the issue to know when an attorney’s input can be useful.
“I’ve found in the past that many attorneys were not as well-informed about the solutions and case law relating to some of the regulations or the regulations themselves as are well-informed HR professionals,” he said. “As a result they recommended courses of action that, if followed, would have unnecessarily hampered the organization’s effectiveness in key HR areas.”
However, said Elaina Smiley, an employment law attorney at Pittsburgh-based Meyer, Unkovic & Scott, “HR professionals who work closely with employment attorneys will have a better understanding of the legal ramifications of employment laws on their businesses and can more effectively communicate that information to supervisors and managers.”
The lines are not always clear, but there is some guidance that HR consultants can use to help ensure that they’re not treading into territory that is beyond their purview.
Clarifying HR and Legal Roles
When it comes to providing education and training on legal issues, HR professionals and attorneys have a role to play. Those roles are often intertwined.
“HR professionals play a key role in training managers to identify potential employment problems, assisting managers in working through problems and contacting counsel if needed,” said Smiley. “Employment attorneys can help with this process by explaining ways to avoid legal liability, the technical aspects of the law and the importance of encouraging managers to contact an HR manager when any potential issues arise.
“Attorneys can work closely with HR professionals, keeping them updated on the changes in various employment laws and regulations as well as explaining the legal ramifications of the changes for the business.”
Zan Blue is a partner with the national labor and employment law firm Constangy, Brooks & Smith, LLP, in Nashville. Human resource professionals and lawyers have distinct roles to play in serving the needs of employers, said Blue. “Human resource professionals can help design a compensation program providing the incentives needed to encourage employee performance in quality and productivity,” he said. “Lawyers experienced in working with the many complex, often seemingly contradictory and ever-changing laws and regulations can, in turn, evaluate whether those policies and practices are likely to lead to legal claims and legal liability.”
Similarly, he said, human resource professionals should provide training concerning employer policies and how managers and supervisors comply with those policies. “When the training is intended to teach managers how to comply with policies that have been designed by human resources and vetted by lawyers, the human resource folks can do an excellent job. When the training concerns teaching managers what sorts of situations are likely to lead to legal claims and liability, especially when the people being trained are expected to ask ‘what if’ questions in areas such as exemptions under the FLSA, or handling harassment allegations, or handling intermittent leave issues under the FMLA, then it probably is a good idea to have an experienced employment lawyer involved,” he said.
Part of the problem, suggested Blue, is that laws can be ambiguous and what is right or wrong according to the law might not be readily apparent or consistent with what might seem like common sense. For example: “The federal and state laws regulating employer responses to union activity are often counter-intuitive,” he said. “Things that just seem like they should be legal are not, and vice versa. Especially with a new [National Labor Relations] Board with expressly announced intentions to change the playing field for the benefit of unions, experienced lawyers should be brought on for planning and training.”
Strength in Partnering
The best of both worlds can be achieved by partnering to deliver training that touches on legal issues related to managing employees.
“I have been involved in various training sessions, working with both HR professionals and managers, in which I’ve counseled management on the legal requirements of federal employment laws such as the ADA, FMLA, Title VII and workplace harassment issues,” said Smiley.
There are ample opportunities for HR professionals and attorneys to team up to provide training, each focusing on their areas of expertise to provide the greatest value to the client. And there are times when the issue really requires the attention of an attorney.
Dr. Alice Waagen is founder and president of Workforce Learning. “Whenever a client contacts me to provide training on legal issues, I make it clear that I have no legal background,” said Waagen. “My expertise lies in helping managers direct the work of others.” So, she said, if the client is looking for training that provides an overview of the legal side of managing, “I’m fine with that.
“For me, the ultimate question is: ‘Are you wanting this training to better educate and inform your leaders on legal issues around managing? Or are you reacting to a current situation that may result in a lawsuit?’ If their purpose is to proactively educate and inform, I’m fine. If their purpose is a reaction to a potential legal situation, I refer them to a colleague who is an HR/employment lawyer.”
Lin Grensing-Pophal, SPHR, is a Wisconsin-based business journalist with HR consulting experience in employee communication, training and management issues.
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