Remedies for HR's Legal Headache
Wonderland is a crazy, mixed-up world where nothing ever really makes sense, and common sense isn't common at all.
Most human resources professionals feel very much like Alice in Wonderland these days. They find themselves in the middle of a world where labor law grows more and more confusing each day. Like Alice, they often hope that they'll simply wake up and find that it has all been just a bad dream. Employment law is confusing, frustrating and daunting, but how HR executives deal with the legal stresses of their jobs is an issue seldom talked about. Most HR professionals suffer in quiet horror wondering when the next lawsuit will appear or if they'll hear about an important law months after it was passed. Although most HR people realize that dealing with compliance of employment laws is a growing part of their ever-changing profession, the truth is, the legalities are taking their toll on the individuals in the personnel profession.
In short, HR professionals are dazed and confused, and it's no wonder why. More laws are being passed. More lawsuits are being filed. More employees are winning their cases. HR literally has the collective weight of the nation's employment laws weighing heavily upon its shoulders. Although HR professionals realize why the laws are being made—they're meant to bring fairness and equality to the workplace-the laws have become so weighted in favor of employees and compliance has become so time-consuming, HR managers often feel they have little time left to do all those other things that they're supposed to be doing so brilliantly, such as being strategic business partners, implementing a global vision, managing change and having a positive financial impact.
We asked for HR's opinion on legal issues in a recent Personnel Journal voice response phone survey and the overwhelming response indicates that legal issues are more than just a small frustration. For example, 90% of the respondents think that current labor law places too many restrictions on employers. Furthermore, 98% think that the legal climate will become more restrictive to employers in the future. (For full results of the survey, see the end of this article for information on how to access the survey from Business Center.) It's clear that HR is feeling overburdened by employment law.
So what's going on? How are HR executives dealing with the myriad laws and regulations that they must comply with? Exactly what are their frustrations? How do they cope with the onslaught of lawsuits? What are their prevention tactics? What are the tricks they use to make it easier for themselves both personally and professionally, while still giving them the peace of mind that comes only through knowing that they're in compliance and are ready to prove their case at the drop of a hat? What are the biggest sticky wickets in labor law anyway? While the solutions are never black- and-white and the answers are never easy—anything legal never is—there are a lot of legal strategies that work and make sense for today's HR professionals and the companies they work for.
Labor laws and employment litigation are on the rise.
It isn't your imagination. There are more laws and regulations affecting personnel than ever before. The number of employment-related laws and regulations being passed at the federal level has risen sharply over the past few years.
"Ever since 1964 [when the Civil Rights Act was passed], it's been a burgeoning business to make new laws," says Donald H. Weiss, CEO of St. Louis, Missouri-based Self-Management Communications and author of Fair, Square and Legal. Hundreds, perhaps thousands, of laws pertaining to employment are passed at the federal, state and local levels each year. Within the past three years alone, Congress has passed a new civil rights act, the Americans With Disabilities Act (ADA), the Family and Medical Leave Act (FMLA), Omnibus Reconciliation Act of 1993 (OBRA) and the Worker Adjustment and Retraining Notification Act (WARN). This sea of legal acronyms doesn't even include the many laws passed at the state and local levels dealing with everything from how to disburse benefits to limiting sexual harassment in the workplace. Then there's the layering effect—many new laws are based upon old laws, such as the National Labor Relations Act of 1935 and the Fair Labor Standards Act of 1938 (the Wage-Hour Act, as amended). You must learn the base law first and then add the more recent amendments on top of them. And learning these intricacies can be confusing, if not outright frustrating.
In addition, we're in what many are calling the Age of Litigation, and employment litigation is one of the largest segments within this rampant phenomenon. "Wrongful discharge is still the largest form of employment litigation, followed by sexual harassment and sex discrimination, age discrimination and racial discrimination," says Weiss. The order, only a few years ago, was: wrongful discharge, followed by racial discrimination, sexual discrimination and age discrimination. And there are more cases overall. For example, the Equal Employment Opportunity Commission (EEOC) reported that during 1993, nearly 88,000 charges were filed, an increase of 22% from the approximately 72,000 charges filed in 1992. All of this legal activity has left personnel professionals breathless just trying to keep up.
How does HR keep up with changing legalities?
HR professionals don't have an easy time keeping up with changing laws. For one thing, personnel managers say they have to actively go out and pursue most of the legal information they need; it rarely comes walking in their door unsolicited. "When the FMLA came into effect, for instance, I felt that there was very little educational material available and it wasn't easy to find unless you had plenty of time to go out shopping for it," says Jose Bustamandte, production manager with HR responsibility for Fast Inc. in Fort Lauderdale, Florida. Bustamandte says that he had to purchase information about the FMLA himself. In addition, he says that he's never gotten any information about new OSHA regulations, the ADA or other new regulations without tracking them down himself.
Tracy Blaugrund, personnel director for American Home Furnishings in Albuquerque, New Mexico feels the same way. A few years ago, there was an important change in New Mexico's Department of Labor rules. "They didn't really notify anybody," says Blaugrund. "I happened to be on an advisory board for New Mexico's Department of Labor and I learned of [the law] and I said, 'Hey, wait a second, have you notified the state's employers that this changed?' " They hadn't. So the labor department sent out fliers after the fact. They didn't enforce compliance stringently for quite awhile after that.
To know what's going on with new laws, she says that you have to read trade journals, get information from local HR associations and stay connected within your industry through business associations. There even are legal hotlines that you can call for immediate assistance, although you may have to pay a fee for membership. Other HR professionals stay in touch with new laws through seminars put on by law firms and through client bulletins and newsletters that law firms send out. Many in personnel readily admit that they often hear about new laws along with the rest of the general public on TV, over the radio or by reading about them in the newspaper.
Other personnel professionals hear about compliance issues from their peers by networking. Don't be afraid to call your neighbor down the street, suggests Mary Lee Sharp, director of HR at the Sheraton Waikiki Hotel in Honolulu. If you hear that a nearby company has just been audited by an agency such as OSHA, call and ask what kind of paperwork OSHA required and what policies you might need to change to be in compliance. Don't be afraid to learn from others' experiences.
A relatively easy, but important step in getting and keeping information at your fingertips on employment law is maintaining your own employment-law library. "I think that's essential in this day and age," says Judith B. Geller, president of J.B. Geller Consulting Inc. an HR consultant in Dudley, Massachusetts. "If you don't have a library on all the legal regulations and laws in your state, and of all the laws that apply to all your company's operations—get them. You at least need to know what the basics are."
Some employers are plugged into new laws and changing case law electronically through various software programs offered by such organizations as Riverwoods, Illinois-based Commerce Clearing House, Inc. or The Bureau of National Affairs, Inc. (BNA) based in Washington, D.C. Perhaps the newest development in legal information on employment issues are online services. For example, San Francisco's Pillsbury, Madison & Sutro began offering its "Labor Law Online" service in June. It provides legal information on 21 topics, such as employment contracts and trade secrets, on a CD-ROM format.
No one is magically informed about employment laws. It takes time, effort and sometimes even an employee complaint, to get personnel informed. Debbie Grass, the personnel director for New Adventures, Inc., a residential provider for the developmentally disabled in Greenfield, Indiana, recently experienced this very problem. Two employees who work in the company's group homes filed sexual harassment complaints against coworkers. In each case, both parties agreed to informal discussions to resolve their complaints, and in each case, the problems were solved in that manner. No one was fired and no formal harassment complaints were filed with public agencies. The situation brought the sexual harassment issue home to her. Grass says that she didn't have a sexual harassment policy or training program in place before these incidents occurred. "When this situation came up, I called our attorney and he said, 'Yeah, you need to get a policy on that.' So we did have to create a policy," says Grass.
As Grass's experience points out, it's often necessary to get an attorney's perspective on employment issues. In fact, human resources professionals are increasingly seeking the advice of lawyers, from both internal and external counsel, mostly because employment issues have become so complex. According to Chicago-based Corporate Legal Times, corporate attorneys from such Chicago-based organizations as Encyclopedia Britannica and Helene Curtis comment that there is an increased emphasis on employment litigation in their organizations. Many large firms with staff counsel report that they're having to employ additional legal counsel outside their firms just to keep up with the caseloads.
But not every company has in-house legal counsel. In fact, according to preliminary findings from a 1994 survey on legal oversight of the HR function compiled by the BNA, only one in four responding organizations employ in-house attorneys who specialize in employment or labor law. However, the vast majority of HR departments (99%) turn to attorneys for guidance on at least some aspects of human resources policy or practice. So, even if HR doesn't have in-house counsel, they're actively seeking it outside their employers' doors.
Whether HR professionals consult with legal counsel inside or outside their organization for help in dealing with potential or actual lawsuits, it's mostly up to HR to weed through the stacks of laws and regulations and make the final decision about how to apply them to their personnel policies and practices. Only 17% of the HR executives surveyed by BNA indicated that lawyers review the completed actions or decisions of the HR department. Add to this the fact that HR is ultimately responsible for drafting employment policies that coincide with government policies, even though they're changing on a monthly, weekly, and sometimes even daily basis.
It's often the most difficult for smaller employers to get the information they need. "Smaller companies are more likely not to know what to do, so sometimes they may not do the right thing," says Geller. Many small employers don't have access to the same kinds of resources that larger employers do. They also don't usually have a large HR staff where people can bounce ideas off one another.
In the end, no matter how you get your information about employment laws or learn about changing case law, you must get it somewhere, whether through one source or many. Ignorance of the law is no excuse. Employers must comply no matter what, and it's mostly up to HR to be employment law experts.
Inconsistencies in employment law wreak havoc on HR.
A big problem for HR professionals are the seemingly inconsistent decisions coming out of the courts. For example, Don Keller, a labor attorney with Bricker & Eckler in Columbus, Ohio, tells of an employer who recently terminated a high-level executive. Not only had the employee exhibited bizarre behavior on the job, he admitted that he had a gun in his car and threatened other employees.
The employer subsequently terminated the executive, reasoning that there was more than due cause. The employee later sued based upon the ADA claiming that he had a chemical imbalance that he claimed caused him to have a short temper and engage in irrational behavior. The gun, he further claimed, was a byproduct of this chemical dysfunction. A judge sent the case to a jury in Florida. "Those are the sorts of decisions that are scary," says Keller. "Before that decision came out, if a client came to me and said, 'I've got an employee on the grounds with a gun, can I fire him?,' 999 times out of 1,000 I would have said absolutely. Now I have to ask more questions." Although there are obvious security risks by having such an employee on the premises, there are other less-obvious conditions that employers have to consider, considerations that are mandated by federal law.
"If you don't come up with some conflicting laws every couple of employee relations issues, it's not normal," says Geller. If it has happened to you, you're not alone. In many cases, personnel professionals have to wade through conflicting laws and figure out how to deal with them without much clarification from the enforcement organization. Debbra M. Buerkle, HR director for Pike's Peak Library District in Colorado Springs, Colorado recently attended a legislative conference that illustrates this confusion. In one of the workshops, she learned about an upcoming law dealing with the formation of employee committees, and how they can be construed as unionized groups. Then in another workshop, she learned that employers may have to have safety committees if the proposed COSHRA legislation passes. Buerkle and some of her colleagues went out together afterwards to discuss the day's events. "We were sitting there saying, we're danged if we do and we're danged if we don't. We have to have a safety committee if COSHRA passes, but if we have that committee, it could be considered one of those unionized groups under the new NLRB recognition status of employee committees," she says. "That's why we were having drinks quite frankly."
A similar conflict of legalities happened to Charlayne Coburn, personnel manager for Bonanza Casino in Reno, Nevada. "We recently were caught in the middle of an issue involving two divisions of the Department of Justice: Immigration and Naturalization Service (INS) and the Office of Special Counsel (OSC). The problem developed when one of the offices said that we must do something so that we will be in compliance with the law while at the same time the other office indicated that if we did what the first office told us to do, we'd be in violation of the law," she says. "It was the proverbial catch-22."
How did she resolve the conflict? She says that she dropped the matter into her attorney's lap who then dropped it into the laps of Nevada's councilpersons and senators. "Now they're communicating amongst themselves," she says. As far as the casino is concerned, Coburn says that she doesn't need to do anything further to try to comply with the conflicting laws until a definitive decision has been reached.
And it's not just the statutes that are a problem, it's also the regulations that accompany them. For example, the actual FMLA law is approximately four pages, but the regulations that accompany it is an 80-page booklet, says Keller. "[Agencies] come out with interim final regulations, and interim final final regulations, and then you have interpretive guidelines and then you've got interpretive guidelines for field personnel, and it goes on and on," says Keller. "Statutes are really only the tip of the iceberg anymore; the regulations are much more numerous and much more specific in terms of what the enforcing agencies are looking for."
Because some regulations are so specific, however, human resources managers complain that they have to practically memorize them so that they don't make mistakes. In the ADA guidelines, for example, there's a fine line between what you can and can't ask a job applicant. You can ask: How well can you handle stress? But you can't ask: Does stress ever affect your ability to be productive? You can ask: Can you perform this function with or without reasonable accommodation? But you can't ask: Would you need reasonable accommodation in this job? No wonder the EEOC has heard cries for help from employers throughout the U.S.
While some laws are almost too well-defined, some aren't defined well enough. In trying to comply with the new federal OBRA regulations that take effect the end of this month, Heather Dackow who's the HR manager for Baxa Corp. in Englewood, Colorado, couldn't figure out whether dental benefits had to be covered under the same plan as medical benefits. "From all my reading and all my sources, no one could clarify that to me," says Dackow. "I found that interesting." To make sure she's in compliance, she included the dental benefits with medical. "I figured that would be a coverall rather than just deleting it. In case it's needed it's already in there," she adds.
Some HR professionals look at compliance a bit more pragmatically. For example, Kendall Mau, vice president of finance and administration with personnel responsibility for Silicon Valley Federal Credit Union in Palo Alto, California, points to Section 89, the controversial medical benefits law that made its way through Congress a few years ago, then was ultimately killed. "I went to so many seminars where people were screaming and yelling that [the legislation] was going to cost them so much money. And all these people were sitting around bellyaching," he says. They also weren't sure how to comply. Instead of complaining, Mau says that he sat down with the law and went through it step by step, and ultimately devised a plan which he confirmed with his lawyer as workable and fair. "Then of course they rescinded the law, but I was in full compliance," he notes.
The problem with compliance often isn't the laws, but rather how HR people approach them, according to Mau. He says that his fellow personnel professionals often tend to panic when they have to quantify things because they usually don't have a financial background like he does and aren't looking at issues objectively. "Instead, they need to just dig into it," he advises.
Despite problems with the laws themselves, it's a rare employer who isn't in compliance with most laws, says Keller. In fact, some companies are in compliance even before laws are passed. Keller says that many companies, especially the larger ones, were in compliance with FMLA statutes long before the law was ever passed because it made good business sense to do so long before the government mandated it.
Certainly, as OSHA numbers and EEOC statistics will attest, although employers aren't in compliance with every law, neither are they losing every lawsuit. Somehow, employers are managing to figure it out, although the frustration level seems to grow in direct relation to the increasing number of laws that make their way through the courts and into the law books. They're especially bothered by those that seem to make little or no sense.
Frivolous laws and lawsuits frustrate HR.
Just like the absurdity of dragging out a trial over stolen tarts, what seems to frustrate HR the most about employment lawsuits are those that are brought by people who are just trying to milk the system. Of course you can't know whether a suit is meritorious or not before you investigate it, but many claims often turn out to be completely fabricated by employees. To add to the problem, workers often are encouraged by attorneys who just want to make a buck. "Attorneys tend to be creative in terms of coming up with theories for liability," says attorney Keller. Whether a case is based upon fact or fiction, legal matters take time—a commodity HR managers are having less and less of these days.
"We've spent a lot of time in court over frivolous suits," says Mau. "That's my biggest beef with the law." Mau says that he just completed litigation of a worker's comp case that took five years to resolve. The case, which he had inherited from another company through a recent merger, involved an employee whom Mau describes as suit happy. According to Mau, the woman had been injured on a previous job but filed a cumulative trauma suit against Mau's company. "Then she tried to extort money from us saying that we injured her and owed her more money," says Mau. "Then on top of that, she filed another suit that we injured her back. It was pure fraud and in the end, we won completely." How does he know that she was faking an injury? The firm's insurance company filmed her during her time off. The arm that the employee claims she couldn't lift at work miraculously healed during her off hours.
Mau says that he learned a lot during the course of the trial. One thing he didn't realize until he got into court was that as an employer, he wasn't allowed to hear the employee's testimony. However, the employee could hear the employer's testimony. A lot is weighted in the employee's favor, he says.
The fact that laws seem to be weighted in favor of workers, seems to be a recurring theme in labor law and is constantly on the minds of many HR executives. It's a fact that was backed up by our own survey in which we found that in legal actions, 92% of you think that the resolution most often favors the employee rather than the employer. In fact, according to information from Jury Verdict Research based in Horsham, Pennsylvania, on current award trends, the national norm for plaintiff recovery in all work-related liability situations averaged 58% in 1992. And in specific areas of the law, the probability of plaintiffs winning is even higher. For example, in cases where termination wasn't based upon discrimination, 62% of plaintiffs won. For wrongful termination cases where termination was based upon discrimination, 67% of plaintiffs prevailed. And in sexual harassment cases, 84% of plaintiffs who brought suit, won their cases.
In fact, damages awarded in sexual harassment suits nearly doubled from 1992 to 1993 to $25 million, according to a recent article in the "People Trends" newsletter and the number of awards rose 15% in 1993. According to the same, the average award for a sexual harassment case now averages $250,000. The most recent example of a big-money sexual harassment case involved a San Francisco legal secretary, Rena Weeks, who was awarded $7.1 million in August. Weeks had worked at the law firm of Baker & McKenzie for only two months before leaving and ultimately filing her suit. These numbers certainly aren't encouraging to those employers who are faint of heart or who are lagging behind in preventative measures.
In general, the U.S. Congress and state legislatures are going overboard these days on legislating work place conditions, says Keller. "I think that the law is placing too many restrictions on employers because it's replacing the discretion that employers, especially small employers, need to survive in a competitive climate," he adds.
And personnel professionals often feel that certain laws are just downright ridiculous. Diane Greek, senior HR assistant for ADP Inc. in La Palma, California, points to the state's new pants law. On January 1, 1995, it will become illegal for California employers not to allow their female employees to wear pants on the job. "Personally, I think that the government has a lot bigger issues to deal with than getting into our dress code policy," says Greek.
What's at the root of HR's frustration about frivolous lawsuits? "What gives me the legal headache these days is that people don't want to take accountability for anything," says Buerkle. "When something happens to them, forget that they were playing tennis all weekend. Or if something happens with their performance, it's not their fault. People feel as though the world owes them something and that's why we have so much litigation because there's positive reinforcement for that kind of attitude. It's very easy to sue your employer these days." Many HR managers share Buerkle's frustration. They feel the constant pressure of wondering whether they're doing all the right things.
It all boils down to a lack of ethics and morality. Employees often can be seen taking advantage of an employer's goodwill and sense of justice. And personnel professionals often have a front-row seat. "I find it frustrating when I hear about sexual harassment claims being filed that are absolutely insane. I feel that it makes it very difficult for other women who have legitimate complaints to come forward," says Coburn. "It's very difficult for me to address something like that and not get cynical."
HR braces for the changing legal climate.
Just as Alice chased the White Rabbit down the rabbit hole, HR professionals often feel as though they've fallen headlong into the black abyss called legal challenges without hope of ever seeing the light of day again. Although HR managers are discovering that they can't eliminate legal challenges from crossing their paths, they can reduce the risk. "I teach clients how to prepare for the worst and hope for the best," says Geller. That seems to be the theme running through most employment policies these days. It seems that no matter how much time you spend drafting policies, employees find the loopholes and wiggle through.
This daunting legal climate has forced many employers to institute more stringent measures to protect themselves. Companies are tightening their grievance procedures and progressive discipline policies and even are adding alternative dispute resolution (ADR) clauses into their employment policies because the stakes have become so high. In alternative dispute cases, a neutral arbitrator helps the two parties resolve their differences under a binding agreement. Although no definitive numbers are available, some experts say as many as 100 companies adopted mandatory arbitration policies in the last few years, including The Travelers, Lens Crafters, Brown & Root, Rockwell International and NCR, now part of AT&T. (See "Brown & Root's Dispute Resolution Program Heads Off Employee Conflicts," page 69.) "I think that progressive approaches like ADR will eventually become the norm, maybe not until the 21st century, but they're going to get there," says Geller.
Congress, however, already is gearing up to head off ADR policies at the pass. In response to the proliferation of mandatory arbitration policies, Representative Pat Schroder introduced the Civil Rights Procedures Protection Act of 1994 (HR 4981) in the House of Representatives in August. The bill, a companion to Senate bill S 2405 (by the same name), would guarantee employees the right to sue over statutory violations such as race discrimination, whether or not they've signed a waiver.
Whether they use one lawsuit-prevention technique or another, most companies are scrambling to get employees to settle out of court. "More and more, it's becoming a business decision because it's becoming more expensive to try cases," says Keller. Not only is it more restrictive in terms of legislative actions, but it also favors employees in terms of court decisions and arbitration awards, he adds. For example, the average award for damages given by juries in employment cases has doubled in the last six years, according to studies by Jury Verdict Research. It becomes a business decision because companies don't want to spend the time, money, and let's face it, the heartache, involved in bringing a case to trial. It can take months or years to get a case through the courts. Add to that the fact that juries are so unpredictable. According to recent research, 80% of the time, jurors make up their minds by the end of the opening statements, and they often favor workers over what they perceive as impersonal or monolithic organizations.
It was business necessity that caused Buerkle to implement a future dispute resolution clause into her organization's employment policy last year. Now, all employment-related disputes have to go through an internal mediation process and then through arbitration, if it needs to go further. So far, ADR has been used only a few times and so far, none have turned into a lawsuit.
What does the future hold? "More lawsuits will turn up in the mediators' hands," says Weiss. "The courts have found themselves so overwhelmed by cases, they can't keep up with them."
How HR eases the stresses of employment law.
While some HR execs are mildly stressed over legalities, others are completely overwhelmed by them. A big part of their stress has to do with the pull they feel from both sides: employees and management. For example, Coburn says that her biggest concern is finding and keeping good employees and being fair to them. On the other hand, she has to be concerned about protecting her employer from liability.
How does HR work through this two-sided pull? By recognizing it and by trying to be fair to employees as their first priority. "It's really a matter of dealing with people with respect, giving them dignity, treating them fairly as well as legally. When you operate under those principles, the laws actually conform to those principles. That's what the laws are all about," says Weiss. "It's much less stressful to look at it that way, because this is the way we were taught to treat people anyway."
Do legalities add an extra burden to HR's job? As a percentage of time, HR is spending more time with legal issues than ever before. Some say legal issues take up 20% or 30% of their time. Many say that they spend half of their time dealing with the legalities surrounding employment issues. Regardless of specific time estimates, one thing is clear: legalities are taking more time than they did even five years ago and HR jobs have shifted in their emphasis to accommodate that change.
Coburn says that 100% of her time is spent on legal issues, because everything that she deals with is a legal issue in one respect or another. From the moment an applicant walks in the door to the day he or she retires and beyond, an employer is liable for a multitude of legal issues surrounding that employee's tenure. From planning a benefits package to disciplinary matters, HR must think of every possible situation in advance in order to be in compliance. "There's a law out there that can come up and bite me in any given situation," she says.
Sometimes, HR managers learn to ask the right legal questions only after making mistakes. For example, a few years ago, Buerkle put a skill-based and knowledge-based pay program in place in one area of the library district where the employees input information into computers all day to create an online catalog. "The amount of money [the program] saved us through productivity enhancements and other kinds of things was incredible," says Buerkle. One thing that she didn't anticipate was that employees would be so anxious to achieve the highest levels of skill and productivity so they could get their bonuses, that they forgot about their own safety. They had an 80% increase in carpal tunnel claims in that area in one year, which therefore increased their workers' comp claims. Consequently, the company changed the program so that it encouraged knowledge-based issues instead of productivity-based issues. The employees then adopted a safety and preventative approach to avoiding work-related injuries.
For Blaugrund of American Home Furnishings, the many employment-related laws haven't added an extra burden on her job, but they have changed her job emphasis. "I feel very fortunate because our company doesn't have many problems. We haven't had the rash of wrongful discharge suits that I keep hearing about in the industry and we don't have a lot of other problems come up." Why is she so lucky? It isn't luck at all. Blaugrund correlates her good success with being prepared and proactively complying with laws. She spends a lot of time making sure that employees know what their rights are and that her company's management teams are well-trained regarding employment laws. For example, when the ADA was passed, she spent time with line managers instructing them about how to recruit, hire and accommodate workers with disabilities. But as the training period dies down after each new law, she moves on to other HR issues. Her job ebbs and flows with the laws as they're passed.
She constantly updates her company's managers about laws. Most of the communication is through E-mail. Every week she sends out a message on a general HR topic, whether its a policy, a procedure, a legal issue or a combination of the three. She says these little reminders keep the issues fresh in managers' minds. "It all relates in the end to how you manage your people," says Blaugrund.
Coburn of the Bonanza Casino also trains all of her company's managers about employment issues that directly affect them and their employees. She shows them videotapes, gives lectures and is in constant communication with the staff making sure they understand the ramifications of their actions and the importance of treating employees fairly.
To avoid costly wrongful termination cases, Coburn implemented a suspensions-only rule. If an employee has reached the final stage of the progressive discipline process, that worker is suspended until Coburn can meet with the line supervisor, the general manager and the employee about the situation. "I gather as much information as I can and then at that point, if any situation looks like it may result in a discharge, I contact counsel. Nobody is discharged without counsel being contacted first," says Coburn.
"It's the discrimination and the dismissal cases that really scare HR, because they don't want to make themselves look bad or incompetent, they don't want to harm the employee, and they don't want to have anyone else around who that employee may be affecting because of incompetence, poor performance or poor conduct," explains Geller.
While some employers spend a lot of time on the front end preventing lawsuits, some employers are finding that it's also useful to pay attention to employment issues on the post-termination end as well. Wayne Munyer, manager of HR for Ventura-Lesbro, a transportation company in Long Beach, California, says that he uses exit interviews to cut down potential wrongful discharge suits.
While some HR professionals say that they're spending almost too much time on legal issues, others say the problem is that they don't spend enough time on them. "That basically comes from the lack of taking the time to keep myself informed," says Munyer. As a one-man HR department, Munyer has to manage his time carefully so that he's informed about new laws.
The only way to work through the time constraints, he feels, is to use a time-management system and stick with it. He's already been using a time-management system to organize his professional and personal life for several years. A recent seminar he attended on legal issues prompted him to start using the system to devote an hour a day to the legal aspects of HR. "If you take the time now to prepare yourself to do that, it's preventative maintenance," he says. Although Munyer says that there haven't been any major lawsuits brought against his company, he says he did lose a verbal harassment case recently. "If I would have taken the time to take care of the issues at hand and resolved it then, it might never have gotten to this point," he explains. "If I take that hour a day to become informed, then when a situation comes up in the future, I'll be somewhat prepared. Hopefully, it will alleviate some of the overwhelmed, out-of-control feelings that I have."
The stress of dealing with legal issues depends on many factors; it isn't just a simple matter of knowing the law, say HR experts. "It depends on the person's level of experience in providing HR services, it depends on their level of education in some cases and it depends on prior experiences in different types of HR organizations," says Geller.
Perhaps the best step that human resources professionals are taking to help ease their legal headaches is studying law in a formal setting. For example, Buerkle is enrolled at the University of Denver and is studying alternative dispute resolution. "I'm learning about different ways to handle conflict in the workplace and in business," she says. She recently decided to go back to school because she was so concerned about the legalities surrounding employment. Buerkle isn't alone in her concern about employee conflict. "There are a lot of HR people in this program because I think they feel the same way. They want to find out more proactive ways to learn to resolve and handle conflict in the workplace," says Buerkle. "I think there's a huge need for education in these kinds of areas for employers. They need to realize that they have some options—that they can design internal and external processes for employees to use that will lessen their exposure to lawsuits."
Others with legal backgrounds think that it gives them an edge. "One thing that law school teaches you is to think like a lawyer," says Sharp, of the Sheraton Waikiki Hotel. Although she acknowledges that this might seem obvious, she explains that thinking like a lawyer has some powerful advantages. After Sharp got her law degree, she practiced labor law for a few years, then went into HR. "It teaches you to look at things from a different perspective," she says. "When you get into an executive HR position, one of the things they're paying us for is to approach things from as many different angles as we can. Nothing is that simple anymore. My legal background allows me to think: Is this situation negligence? Is it discriminatory? Is it a breech of contract? Is it defamatory? Is it criminal?" She's able to perhaps see legal problems sooner than other people in HR might. "It's not that HR people need to be lawyers," she adds. "But it helps me have that added perspective." Knowledge is power, and anything that gives you an edge in a litigious society can't hurt.
Short of going back to school for a law degree, human resources professionals are taking steps to better balance their personal lives so that the stresses of HR management don't completely overwhelm them. "I have lots of outside activities: I work out, I roller blade, I walk my dogs," says Blaugrund. Others take breaks, both at work and at home. "What I do is become something of a recluse," says Coburn. "Dealing with people as I do, I find that I need to get totally away from people. My time off needs to be just for me." She says she sometimes just sits in a corner, listens to a Yanni tape and crochets. "I recharge my batteries and then I'm ready to go back and be with people again," she adds.
However, all this stress and frustration isn't to say that HR managers misunderstand the need for all the laws. For the most part, they agree with what most of the laws and regulations accomplish for workers. Employees must have safeguards so they aren't taken advantage of. But so must employers.
And so must the HR professionals who act as stewards of their organizations. But they must take a careful look at what they're getting into before they find themselves acting in that role. "Part of what you expect when you go into HR nowadays is knowing that that will create stress, and that you as an agent of the organization are in some ways responsible," says Geller. "I think we'll see some people leave HR because of that, or at least not accept promotions or go into a special area of HR like HRIS where they don't necessarily have to deal with the laws. In fact, I've seen that happen already. I've seen people say, 'I'm not going to go to the top, I don't want that stress.'" You might say it's an occupational hazard: one that some HR professionals are choosing not to take.
However, it's clearly a choice that human resources professionals will be looking at in the next few years as the legalities surrounding the employment climate continue to grow ever more complex. They'll have to make some tough decisions based upon how they view these legal issues, seeing them either as limiting or as challenging.
In doing so, they may find it useful to think about Alice in Wonderland. Faced by the most difficult challenge of her life, Alice started to grow. Before she knew it she was so tall, she had grown back to her full size. (At the beginning of "Alice in Wonderland," our heroine had drunk a potion that had caused her to shrink.) She no longer was afraid of her adversaries, knowing that she had risen to the occasion and was perfectly capable of taking care of herself. And with the words of wisdom that Alice had thought to herself at the very beginning of her adventure, she took comfort in believing that she could go anywhere and do anything that she could imagine. "For you see, so many out-of-the-way things had happened lately, that Alice had begun to think that very few things indeed were really impossible."
Personnel Journal, December 1994, Vol. 73, No. 12, pp. 67-76.