Don’t Lawyer Up Too Quickly

Yesterday’s Advisor featured SHRM’s top-rated speaker, Attorney Jonathan Segal, who offered the first 10 of his “they won’t tell you, but I will” principles. Today, 11 to 15, plus an introduction to the handy wage and hour guide that helps you solve little problems before they become big and expensive ones.

Segal, who is a partner with law firm Duane Morris LLP in Philadelphia, combined what he’s found in engagement surveys, discussions with CEOs and COOs, and his own observations in a well-attended session at the SHRM Employment Law and Legislative conference, held recently in Washington, D.C.

Here are the rest of Segal’s 15 Principles:

[Go here for 1 to 10.]

11. Don’t Lawyer Up Too Quickly

Do not assume every employee is trying to set you up, says Segal. For example, there is a risk in over-documentation (or documenting too early).
Talk! Says Segal but not like a lawyer. If you say to an employee, “This is to confirm that you came today and raised one and only one issue …” you sound like a lawyer, and when they hear that employees will call their lawyers.

12. Don’t Be the Management Tool

It’s not easy when you don’t agree with management. You should:

• Advocate for best HR practices by linking to the bottom line.
• Do not try to defend the indefensible, but do not undermine senior leadership, either.
• Develop strategies for how to address areas where you do not agree with organizational change, policy, or practice without setting yourself up for termination.

13. Be Careful of Foolish Consistency

The law prohibits unlawful inconsistency that is based on protected factor, but it does not mandate foolish consistency. You can consider (and document) legitimate, nondiscriminatory factors. Ask, are there reasons that might warrant an exception?
Don’t just say “but policy provides.” If you act like you have a union contract, you may end up with one.

Are class action lawyers peering at your comp practices? It’s likely, but you can keep them at bay by finding and eliminating any wage and hour violations yourself. Our editors recommend BLR’s easy-to-use FLSA Wage & Hour Self-Audit Guide. Try it for 30 days … on us.

14. Do Not Tolerate Mediocrity

Ordinarily, we want to provide employees with due process, says Segal, and we want to minimize (not eliminate) legal risk, but we also need to hold employees accountable. When paralyzed by fear of litigation, we tend to retain mediocrity.

There are risks in terminating, but there are also risks in not terminating.

• Employee relations risk. Failure to terminate can damage employee relations and foster resentment among those who have to work with the mediocre employee.
• Business risk: The quality and quantity of products or services can suffer.
• Legal risks:
• Comparators. You’re setting a bad precedent.
• Negligent retention when mediocre turns into violent.

15. Don’t Avoid All Personal Interactions

Is there a risk in being human? Yes, there is, says Segal. Here are some typical situations:

• Disclosure of health condition of parent. (“My mom has breast cancer.”) You say, “My thoughts are with you. Is there anything I can do to help?”
• Employee appears depressed. You don’t say, “You look depressed.” But you could say, “Are you OK? Is there anything you want to talk about?”
• Pictures on desk. You don’t say, “Are those your children?” You could say, “Nice picture.”

Segal’s bottom line: Don’t let lawyers take the humanity out of HR.

Trying to be a better manager is a worthy goal, but where do you start? How about the very beginning with the basics—wage/hour. Yes, it should be simple, but it’s just not. Complying with the Fair Labor Standards Act (FLSA) is one of the most confusing and challenging things comp managers have to do.

Even the most savvy practitioners get tripped up, and the law’s complex requirements can easily land you and your company on the wrong side of a lawsuit or DOL investigation.

Fortunately, there’s help—Wage & Hour Compliance: Practical Solutions for HR provides you with detailed guidance on how to comply with the FLSA and takes you through the most complicated wage and hour issues that HR practitioners encounter.

When you’re faced with a supervisor’s travel time question, an employee’s request for comp time, another executive’s suggestion that more assistant managers be deemed exempt from overtime, you’ll find answers in seconds, from a reputable and reliable source.

All you need to avoid exempt/nonexempt classification and overtime errors, now in BLR’s award-winning FLSA Wage & Hour Self-Audit Guide. Find out more.

Wage & Hour Compliance: Practical Solutions for HR features:

• Real-world examples of wage & hour challenges and how to solve them
• Multiple quizzes, so you can see where you need to review more carefully
• An overtime exemption audit checklist, so you never make the wrong call
• State-specific charts, for comparing your multistate obligations
• Sample policies, easily modified to fit your specific preferences
• A quarterly newsletter, Wage & Hour Compliance Bulletin, to keep you aware of the latest developments in the law, and why they matter to you.

BONUS! Not just a manual. You also get:

• Free CD containing over 20 forms, policies, checklists, state-by-state comparison charts and more, all so you can point, click, and go.

Why are aggressive attorneys so eager to file claims on behalf of employees? Because there’s so much money to be made:

• $4.75 million: Hospital in Thousand Oaks, California, settles wage and hour lawsuit over miscalculated overtime pay and failing to compensate workers for missed meal and rest periods.
• $1.15 million: Las Vegas construction company to pay in back wages to 1,060 current and former employees.
• $976,327: New Mexico aerospace company settles with 900 employees who were routinely required to work through lunch breaks without compensation.
• $340,400: New Jersey convenience store to pay back wages and damages for violations of overtime and recordkeeping.
• $84,541: New York physical therapist agrees to pay 22 employees for minimum wage violations.
• $30,000: Texas chain of four gas stations to pay their six hourly employees, again for recordkeeping and overtime violations.

Avoid steep fines. Go here for information or to order Wage & Hour Compliance: Practical Solutions for HR.

Buyers’ Benefit: To make sure your Wage & Hour Compliance: Practical Solutions for HR remains current with changing interpretations and court decisions, we monitor courts, Congress, and state legislatures. Each year, we’ll rush you an updated edition and bill on a 30-day review basis. You pay only if you decide to keep the updated edition.

Stay up to date with wage/hour changes. Go here for information or to order Wage & Hour Compliance: Practical Solutions for HR.