Quick! Between your human resource and legal advisers, which group is more likely to say, "It looks like we're in pretty good shape. Nothing's ever perfect, but claims are way down. We don't have many lawsuits, and the ones we have we think we can settle reasonably— or, if need be, win. Everyone has signed off on our policies. All of our training has been completed. We could get a claim, but if we do, we should be in good shape to defend it. We can prove everyone got our policies and everyone attended our classes."
Of the two groups, lawyers are generally more likely to see the state of the workplace landscape this way. These statements focus on legal risk, because that's what lawyers do. What can be disconcerting is to have human resource professionals review the same facts and take a completely different position. They might say, "We have a workplace laden with risk. There are problems all over the place. This place has disaster written all over it. We're facing a stack of challenges."
If these two groups are looking at the same situation, which one should we believe? Whose views should govern what we do? The answer is that both may be right. What's present here is an occupational difference in focus and perspective.
Lawyers tend to concentrate on legal risk — in many organizations, that's the key element of their jobs. Conversely, human resource professionals look at an overlapping but different range of people issues and the impact on the workplace environment. HR professionals will examine engagement surveys, internal and external complaints, exit interviews, retention rates, safety records, and other data. They may see signs of internal turmoil, abusive leadership, or declining productivity that are all matters for concern but offer no obvious indicators of ongoing or imminent illegal acts or practices.
When looked at retrospectively, it's rare that violations spring from out of the blue with no hint or danger signals. As an example, consider harassment resulting in sexual or racial misconduct. Long before there is a visible event that could lead to a charge or lawsuit, there might be signals: perhaps high employee turnover via resignations or transfers as vacancies emerge. Such legal hazards might not be raised by internal complaints or external charges in today's workplaces. As jobs remain scarce, employees often choose not to speak up rather than chance overt or subtle retaliation.
The most effective way to manage all risk, legal and other, is to integrate what both legal and HR professionals advise: Look at legal risk and "non-legal" indicators that may be the bellwether for upcoming claims. This is the type of "combined" thinking and planning that best conserves organizational resources and minimizes liability. In other words, don't be satisfied even when all is going "legally well."
Finally, organizations work best when legal and human resource professionals work together. That's how to prevent the legal and HR worlds from colliding. And along the way, you'll build a more productive, engaged workplace.
