Law School for HR Professionals in an Hour

Transcription

1 Law School for HR Professionals in an Hour Bryan LeMoine McMahon Berger PC 2730 North Ballas Road, Suite 200 St. Louis, MO

2 Our Purpose Today Convince you that you do need to think like a lawyer sometimes. Teach you the basics of thinking like a lawyer. Help you understand when you need to help lawyers be human, too. Give you some examples to see whether you are thinking like a lawyer. 2 Who Wants to Be a Lawyer, Let Alone Think Like One? 2

3 Law School Teaches Students to Think Like Lawyers Why should you think like one? Ummm litigation ring any bells? Article in latest HR Magazine: Don t Take it Personally! Keeping the company out of court by ensuring that managers comply with the law remains an important part of any HR professionals job. But more and more, HR professionals may be defending themselves in suits brought against them in their individual capacities. Why Should You Think Like One (cont.) Why should you think like one? Employees have decided that lawsuits are the means for resolving disputes with their employers. Employees tend to look for any loophole in the law. Employees are more educated about the law today than ever. Employee litigation in Missouri continues to increase. 3

4 What Does It Mean to Think Like a Lawyer? LawNerd suggests the following four strategies will help you think like a lawyer: Accept ambiguity. Don t be emotionally tied to a position. Argue both sides. Question everything. Sounds like that makes you a lot of fun to be around, doesn t it? Basically Thinking Like a Lawyer Turns You Into 4

5 What Does It Mean to Think Like a Lawyer? Wikihow provides the following helpful hints to enable you to think like a lawyer: Learn to identify the issue at hand and start doing so automatically Analyze and pay close attention to everything you hear, read or write Question why something is the way it is See the other side and exploit weakness Look at things as an outsider Have evidence to prove what you say is true Be concise. So here, thinking like a lawyer turns you into 5

6 What Does it Really Mean to Think Like a Lawyer? Know your limitations. Constantly read everything you can about the ways the laws are changing. Think about what you are saying, and write as little as possible. Be aware of how a decision today will turn out tomorrow. Stay as objective as possible. Listen carefully. Listen often. Remember who your client is. Maybe that sounds too much like 6

7 The HR Professional Versus the Lawyer Unfortunately, many times lawyers forget to be human. As HR Professionals you are at your best when you retain your humanity, your willingness to help, when you remember that your client is the employer, and when you use your particularized knowledge of your employer when you work with business partners (like lawyers). Unfortunately, the person you are helping today may sue you tomorrow. Favoritism is never an option. But, you have to remind your lawyer that every jury is full of human beings, and to remember that not everything is always as it seems. An Example of Defining Roles You have a workplace accident. An employee is tragically killed. The family retains an attorney, but wants to come by and visit the facility, see where the accident occurred, and talk to his co-workers. What do you do? 7

8 Two Potentially Different Answers The lawyer says no. The human being (in this case the HR Professional) says yes. Which is the right answer? Why Thinking Like a Lawyer Helps You There is a significant movement away from treating employees the same. Look at criminal background checks, for example. Each person should be looked at as an individual. The same is happening under the ADA. This trend is not going away any time soon. Failure to listen carefully, to become aware of new trends, to recognize the potential land mines that are coming from each interaction may result in you being sued, not just the company. 8

9 A Few Examples Timothy is a 24 year old man with a criminal record. Your policy suggests that you will not hire anyone with a felony conviction. Timothy applies. What do you do? Jill is a 47 year old employee who has had difficulty with her attendance. She s just missed her third day without calling in. What do you do? One of your employees is in a near-miss while driving a company car. She s taken to the hospital for evaluation. What do you do? Why The Examples? For HR Professionals, you have to get used to what has been the norm for lawyers for years cases are guidelines for lawyers. They offer opportunity for creative interpretations that are yet consistent with prior law. Policies are just like that now the EEOC wants guidelines instead of mandates. What you did ten years ago or a year ago may not be the right call now the trick is, how do you build a case that treating one person different from how you ve treated others in the past is consistent and fair? 9

10 The Perfect Hybrid Just Kidding Well sort of you have to be half human, half shark er.. lawyer. You have to think about what juries will be thinking three years from now. Remembering to do that means you are thinking like a lawyer. Knowing what juries will think means you are retaining your humanity your ability to be compassionate, to do the right thing, to create policies and procedures that allow for individual dispensations. In other words, you have a lot of work to do. 10

11 Questions? 11