Compliance and Caring Aren’t in Conflict

I was talking with a fellow management-side employment lawyer (who is also a friend) recently and I made an offhand comment encouraging her to go out and continue doing the good work of protecting our nation’s employers.

She corrected me: “Actually, I feel like most of what I do when it comes to counseling employers is protecting employees . . .” 

She was 100% right.

I told her I was glad she "corrected" my comment about our job being all about protecting employers. I further told her I felt a little silly that we were even having this exchange, because this is one of my pet issues: I believe there is a common misconception among many (including some of my close friends and family) that, as an employment lawyer who counsels and represents management, my job is somehow anti-employee. That is so far from the truth. 

We management-side employment lawyers (MSEL) absolutely protect employees! In fact, we may be in the best position to do the most good for the most employees–if we’re willing to and are intentional about how we do our jobs.

We help our clients do well by helping them do good.

The point of this post is not to throw MSEL (and our comrades-in-arms, human resources professionals) a pity party. And I don’t need any external validation of my professional talents other than my clients’ enthusiastic satisfaction. So what’s my point in writing this? 

My point is this: There’s a lot of suck in the world. To counter the suck, we need good people to act. There are few places where people spend more of their time, and devote more of their energies, than the workplace. For better or worse, the way our clients treat their employees, and the workplaces our clients provide, have a huge impact on society in general. This daily American workplace drama may appear mundane on a micro level, but I believe it’s highly consequential on a macro level.

We MSEL and HR professionals have a role to play in this drama. We play that role whether we are intentional about it or not. I write this to remind my fellow MSEL and HR pros to be intentional about the broader societal effects of the counsel we give our clients and to remind them that we can be a force of good in the world by doing our job with intentionality--while still serving our clients with the utmost professionalism.  

Some days we need a reminder like this. Like my friend gave me.

The workplace doesn’t have to be, and usually shouldn’t be (until it must be), us-versus-them.

Let me be clear: Nothing I’m saying here should be interpreted as suggesting we MSEL violate, or even flirt with violating, our ethical duties to our clients. Our counsel to our clients should never put our clients’ interests or legal compliance subservient to their employees’ interests. What I am suggesting is that for MSEL to ignore the well-being of our clients’ employees is often to do a disservice not only to those employees, but to our clients too.

It's easy for MSEL to fall into the trap of thinking of the workplace as an us-versus-them environment. We rarely hear from our clients when things are rosy in management-employee-relations land. The American workplace can sound like a pretty troublesome place when every call you take, every email you read, is about workplace troubles. For those MSEL who spend a significant part of their time defending their clients in employment law litigation (like I did for the first 10 years of my career), it may be even harder to avoid falling into this us-versus-them trap.

Now, having defended and counseled thousands of companies over the course of my 24 years as an MSEL, I feel like I’m in a position where I know some things about how the workplace should work. I’ve spent thousands of hours counseling companies to:

            -protect employees from harassers/bullies/jerks

            -accommodate employees with health, family, religious, or other needs

            -coach employees instead of disciplining

            -give a second (or third, etc.) chance to employees

            -communicate with employees

            -promote deserving employees

            -refer struggling employees to an EAP

            -listen to employees' complaints, concerns, and ventings

            -believe employees who said they were victimized 

            -console hurting employees

            -offer to call the police for employees who are in dangerous personal situations

            -pay employees even when not legally required to

            -train employees

            -redraft or eliminate overly restrictive non-compete agreements

            -issue a written warning instead of firing

            -classify a worker as an employee rather than an independent contractor

            -allow employees to work from home for health or other personal reasons

            -pay out big bucks to settle a meritorious claim

            -etc. 

I offer this type of counsel when I believe it’s in the best interest of my client. Which is almost 100% of the time.

It’s exceedingly rare that good legal counsel in a workplace situation calls for taking an aggressively antagonistic, anti-employee approach. When those unfortunate situations present themselves, we MSEL should counsel our clients accordingly. But the best MSEL know that treating employees with humanity, dignity, and fairness should always be the default.

Some of the most meaningful compliments I’ve ever received have been from clients who told me that they’ll never forget how I helped them see an employee as a human first, and an HR issue or management problem second.

This philosophy for practicing employment law works. How do I know? Clients tell me. I see the lawsuits that don’t get filed. I see the careers that aren’t ended prematurely. I see workplace relationships salvaged. I hear about workplaces where trust exists between employees and management. I could tell you about countless situations that had lawsuit written all over them, but because I worked with my client to take an intentionally employee-focused approach to handling the situation, litigation was avoided.

If this is all too “soft” for you, how about some self-interest?

Look at workplaces around the U.S. Watch or read the news. Listen to the politicians (if you can stand to). Hell, visit your local unionized Starbucks!

I believe we are witnessing a watershed moment in the American workplace. Employers who treat their employees like crap are paying the price, through mass resignations, voters pushing for greater regulation of the workplace, and union efforts across the country (including in “it-could-never-happen-here” states like Utah) that should send a shiver down every employer’s spine.

I’m not as laissez faire as I once was, but I still believe the most direct, most efficient, and overall best way to improve the lives of employees is for good employers to take action.

But employees (and voters) are getting less and less patient waiting for the good employers to stand up. 

If we MSEL and HR pros do our jobs well perhaps the union wave that many are predicting won’t happen. Perhaps the workplace won’t become ultra-regulated. And perhaps we can feel good that we helped position our clients for success in the modern labor market, while making our clients’ workplaces and communities just a little bit kinder. A little less sucky.

Conclusion

The world can look like a very dark place to a lot of people in 2022. Mental health struggles, substance abuse and addiction, suicide, hate, violence, war, all the “-isms” (racism, sexism, etc.), all the phobias (homophobia, xenophobia, etc.), economic inequality, inflation, distrust, anger, etc. And the workplace often reflects—or perhaps more accurately—intensifies—all of this darkness.

Are employers, HR professionals, and their employment lawyers going to solve all of these problems? Of course not. But with the workplace occupying such a huge part of our lives, I have no doubt that my clients and other companies like them have a huge role to play, and therefore, those of us who advise on HR and workplace law are in a position to do good. And the world needs every single bit of good it can get.

So, to my fellow management-side employment lawyers, and the HR pros we work hand-in-hand with, I take this opportunity to remind you of the position we’re in. Our jobs give us the privilege of having a part to play in the lives of many people. It’s up to us what we do with that privilege. Today, I’m going to look for opportunities to do some good in the world. I hope you’ll join me.

If you want to hear more of my thoughts on this topic, join me, Mickell Jimenez from Holland and Hart, and Ryan Parker from SixFifty, for a roundtable discussion on how compliance and caring in employment law don't need to be in conflict. Webinar on August 18, 2022, at 11:00 MT. You can register here: https://us02web.zoom.us/webinar/register/6516583463963/WN_mwlf31f5T7GaudBPSswQHQ