Viewpoint: Confessions of a Reformed Employment Attorney

By Jathan Janove, J.D. July 9, 2018
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​On behalf of the employment law profession, I apologize to HR. Thanks to our influence, at many employers, human resources is neither human nor a resource.

How did this occur?

For most of our country's history, the legal system has been unfriendly to employees. Things began to change in the 1930s with federal labor organizing protections. In the 1960s, Congress enacted laws prohibiting discrimination against specified categories of employees. Also, many states began to add protections for employees, especially in California.

More change arrived in the late 1980s after the U.S. Supreme Court determined that a victim of workplace sexual harassment could sue her employer. And employment law and litigation became a national reality in the early 1990s with federal and state legislative actions along with supportive judicial decisions.

As a result, employment law compliance and claim prevention became big business. Yet something got lost along the way.

I started out in the 1980s as a plaintiffs' attorney representing employees suing employers. My job was to uncover new and creative ways to serve clients by extracting money from their employers.

Subsequently, and for most of my legal career, I was a management-side attorney, who generated revenue by crafting new and creative ways to thwart plaintiffs' attorneys. We hosted seminars where we presented to HR professionals worst-case scenarios: the workplace plane crash equivalent.

Not then, nor now, was attention given to the likelihood or magnitude of risk, or the unintended negative consequences of recommended claim prevention measures. Here are five examples of what I mean:

1.      Employment "at-will." Years ago, plaintiffs' lawyers made a few inroads in arguing implied contract theories weren't enough: that all rules and regulations needed to be in writing. As a result, and on advice of counsel, companies began creating policies to counter the risk. So on your first day at work, you signed an acknowledgement that company policies contain nonnegotiable rules for you to follow, but no rights. You acknowledge that you can be fired for any reason or no reason, with or without notice. Welcome!

2.      The annual performance review. When I speak to HR groups, I often ask, "How many of you administer performance reviews?" Typically, a sea of hands arises. Then I ask, "Do you agree with the following statement: 'The performance review is well worth the time and effort because of the return it provides in increased employee engagement, retention and performance.' " The sea of hands quickly goes out to tide. I squint to find the occasional raised hand. As reported on SHRM.org, a study was done of California cases in which performance reviews were material facts in the courts' opinion. The author found 40 cases. How many times was management's feedback tool used to support its position? And how many times was it used to undercut management's position? The answer to the first question is 1; to the second, 39.

3.      Progressive discipline. How about that phrase as a contradiction in terms? In my experience, there's nothing "progressive" about "first verbal," "second written" or "last-chance warning." Rather, progressive discipline promotes three things: 1) fear of HR, 2) conversion of win-win relationships to lose-lose and 3) grist for the litigation mill as plaintiffs' attorneys comb through flawed documentation.

4.      Criminal background checks. Many years ago, inventive plaintiffs' attorneys touted negligent hiring and negligent retention causes of action. In most jurisdictions, these claims had little traction. Yet fear of such claims led to the "box" and criminal background checks. As a result, numerous qualified and decent human beings with criminal histories have been peremptorily disqualified for employment without evidence that they are high-risk. The U.S. hosts 5 percent of the world's population and 25 percent of its incarcerated human beings, 700,000 of whom are released every year. They're expected to rejoin society, lead law-abiding lives and get jobs. Yet the obsession with legal risk undercuts this societal goal, which is especially a tragedy for black men. As a result, "ban the box" measures are spreading nationally.

5.      #MeToo. To people in the employment law profession, the reality behind the #MeToo movement is no surprise. Since practicing in this field in the 1980s, I've known that most victims of sexual harassment don't take action internally with their employers or externally with the legal system. Their experiences have persuaded me that conventional sexual harassment policies and training programs are not only ineffective, they're counterproductive. They deter reporting. Why? Because they're overly harsh, legalistic and fear-based. Unwittingly, they persuade victims that taking remedial action is fraught with danger and negative consequences. These policies and training programs aren't designed to create cultures of respect, civility and professionalism. They're designed to look good in defense of a sexual harassment claim.

An Expensive Irony

Over the past 30 years, employers have greatly increased their investment in compliance and claim prevention. What's the return? We've experienced surging, record-breaking numbers of workplace claims. The number of employment law claims on state and federal dockets has skyrocketed since the 1980s.

I suggest it's time for a change. HR should serve as coaches, not cops. That approach will help HR create better workplaces with increased employee engagement, retention and performance, and HR will improve its effectiveness in preventing claims.

Both executive coaching and HR focus on workplace behavior. The way they do often differs dramatically. Here's how HR can benefit from adopting a coaching paradigm:

  • Shift the focus from deterring bad behavior to promoting good behavior that benefits everyone.
  • Instead of being the "Department of Answers," become the "Department of Questions & Options."
  • Instead of hierarchical accountability (fear of consequences, e.g., "zero tolerance"), promote self–accountability.
  • Replace risk avoidance with efficient risk management that assesses probability, magnitude and prevention costs.
  • Develop policies, procedures and processes not as compliance ends, but as a means to create great work environments.

Jathan Janove is president of the Organization Development Network of Oregon. He is also a certified executive coach and listed in Inc. magazine as one of the "Top 100 Speakers on Leadership for 2018." In 2005, he was named the Utah State Bar Labor & Employment Attorney of the Year.

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