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Calling your employment attorney: When it’s needed, when it’s not

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in Discrimination and Harassment,Employment Law,HR Management,Human Resources,Office Management,Records Retention

by James B. Thelen, Esq.

Say your HR office just received a subpoena for the employment records of an employee. How should you respond?

Maybe your company doesn’t have a general counsel. Maybe you don’t even have an HR office—it’s just you! Then what do you do?

To know whether you should call your company’s outside employment attorney for advice, you need to consider several things. Chief among them is understanding your company’s internal expertise with the issue, as well as the issue itself.

Know what’s at stake

While many day-to-day HR issues involve some type of legal compliance—after all, there’s a state or federal law covering nearly every aspect of the employment relationship—many of these issues can be handled without consulting an employment attorney if you or your company has a sufficient level of knowledge or experience with the issue. 

In a larger company, you may have access to a general counsel’s office with experience in employment law compliance. Or, you or someone on your HR staff may have handled the issue numerous times, giving you the necessary confidence to meet legal compliance obligations without seeking outside legal help. If any of these are true for you, your HR office may not need to call for outside legal help for run-of-the-mill compliance issues.

That said, if you don’t have a general counsel, there are some situations where contact with an outside employment attorney is practically a must.

How to handle specific situations

Summons/complaint. If you receive a letter from an employee that threatens a lawsuit over a recent employment decision, the best course of action is to seek advice right away from your outside attorney.

The same holds true with a summons and complaint, as the courts give you a relatively short period of time to make your company’s initial defensive responses to a lawsuit. Failing to respond to a lawsuit on time can result in losing the lawsuit before you even offer your first defenses in court.

Also, don’t wait for trouble before you contact an attorney. It’s helpful to have already established relationships with one or more reputable employment attorneys in your area, as this minimizes the time and expense for the attorney to “get up to speed” on your company and the issues.

Subpoenas. In most situations, a subpoena signed by an attorney is considered to be a court-sanctioned, legally valid order to produce information or records described in the subpoena. Your company can be taken to court and ordered to respond if you delay or refuse to respond.

But unless the subpoena is sent as part of a lawsuit in which you or your company is a party, it’s unlikely your company needs to take a strong defensive position to the subpoena—or call your attorney.

For example, when a subpoena requests employment records about an employee who, himself, is involved in litigation—say a child support dispute or divorce proceedings—you typically don’t need to call your company’s outside employment counsel. All you need to do is contact the attorney who sent the subpoena and tell him or her that you will send the requested records if the attorney provides a release from the employee. Most attorneys who send subpoenas will send you a release.

Revising your policies or handbooks. While most HR professionals are more than competent to draft smart employment policies and handbooks, it is a good idea to have an experienced employment attorney review the policies or handbook before they are implemented.

Drafting the policies yourself will save money and make the legal review easier. But the legal review is still important to ensure you’ve satisfied state and federal legal requirements, avoided legal inconsistencies and steered clear of unnecessary contractual obligations or promises.

Responding to a discrimination or harassment complaint. Most discrimination or harassment complaints by employees should alert you to the possibility of a lawsuit down the road. Given that your company has legal obligations to preserve paper and electronic records that might be relevant if a lawsuit is filed, it is a good idea to at least alert your employment attorney of the complaint. That way, you can discuss whether litigation is likely to result and how best to respond to the complaint to be prepared for that eventuality.


Author: James B. Thelen is an employment attorney with Miller Canfield Paddock and Stone in Lansing, Mich., and the editor of the Michigan Chamber of Commerce's Employment Law Handbook. Contact: thelen@millercanfield.com.

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