Legal Perils & Pitfalls in Today’s HR World — Interview with Heather Owen, J.D.

Heather A. Owen is a partner in Constangy, Brooks, Smith & Prophete, LLP. She is board certified in labor and employmentHeather A. Owen law in Florida and has counseled and successfully defended employers in all areas of employment law. She will be presenting at the HR Specialist Summit in Las Vegas in September.

Jathan Janove: Heather, what are the most important developments in labor and employment law?

Heather Owen: Right now, LGBT issues are certainly at the forefront. This is especially so after the Seventh Circuit’s Hively v. Ivy Tech decision holding that Title VII prohibits discrimination based on sexual orientation, and the Eleventh Circuit’s holding in Evans v. Georgia Regional Hospital, which maintained that discrimination based on sexual stereotyping is prohibited, but discrimination based on sexual orientation is not. We are seeing more test cases and administrative charges alleging discrimination based on sexual stereotyping and orientation. Add to this more state and local laws being passed regarding LGBT, a new Justice on the Supreme Court which is expected to address LGBT in employment soon, clashes between LGBT rights and religious liberties, a growing acceptance in the United States of LGBT individuals, a president who may not be as averse to the LGBT community as perceived, and a slightly conservative-leaning Congress, which is unlikely to take up the issue of amending Title VII, and you get a pretty interesting issue.

There are many other developing issues of interest to labor and employment law geeks like me, such as what the U.S. Department of Labor is going to do with regard to amending the white-collar exemptions under the Fair Labor Standards Act, arbitration agreements and class actions, whether the National Labor Relations Board is going to reverse course on its recent decimation of employer policies (likely) and the allowance of micro-units in union elections.

Jathan: What are the most common mistakes employers make that unwittingly get them in legal trouble?

Heather: At the risk of sounding like a broken record of an employment lawyer beating a dead horse: communication and documentation. We see many cases where a timely and appropriate conversation with an employee that is well documented may have averted legal action, or at least significantly helped in defending an employment claim.

For example, an employee complains of harassment and the employer conducts a perfect investigation, but the employer never follows up with the employee! What is the employee going to think? Of course he or she is going to think that the employer did nothing and that the complaint fell on deaf ears. Or an employee requests an accommodation for a health condition, and the employer never talks to the employee before making a decision on the requested accommodation. The employer may have come to the correct legal conclusion regarding the accommodation, but if the employee is just told “no,” you will have an angry, more litigious employee. In some jurisdictions, the employer could be liable under the Americans with Disabilities Act for failing to engage in the “interactive process.” Even if the answer is ultimately “no” and even if “no” is the right answer, and even if the employer’s jurisdiction does not treat failure to engage in the interactive process as a standalone violation, how much better off would the employer be if the employer had met with the employee, explained why the accommodation cannot be provided, sought the employee’s input and asked for other ideas, and documented the steps taken. First, the employee is more likely to believe he or she has been listened to, and if there’s a lawsuit, the employer has a great record that the employee had input and no workable suggestions at the time. Employers should also date their documentation — an obvious point, but it’s frequently missed.

Finally, I cannot answer a question about employer mistakes without mentioning stupid emails and text messages. We can have a great case, and then we find that stupid email or text message from a manager — the one that says, “I know she is pregnant, but when can I fire her?” or “He’s just going to have another worker’s compensation accident if we don’t do something now!” These make us cringe! Text messages are especially bad — for some reason, people exercise even less care with texts than they do with emails. Luckily, at least in my experience, employees also send stupid emails and text messages, and often lack “filters” when it comes to social media.

Jathan: From a compliance or claim prevention perspective, what are the most important things HR and management should know?

Heather: Be fair. Even when dealing with an employee who you know is working the system, don’t let them get you to come down to their level. Treat them fairly and don’t play games in response to their games. There is legal compliance, and there is fairness, and fairness is much more important and powerful. Legal compliance may ultimately get a claim dismissed on summary judgment (after spending at least $50,000 to get there), but being fair, and being perceived as giving an employee every reasonable opportunity to succeed, goes much further in preventing an issue from becoming a lawsuit. And if a lawsuit is brought, fairness is certainly better received than legal compliance. Fairness does not mean “roll over.” It means addressing problems professionally when they occur, treating all employees with respect, being clear in communicating expectations, refraining from pulling the trigger too early or in a knee-jerk reaction, and trying to evaluate decisions from the perspective of an outsider.

Jathan: Based on your experience, is there anything else you’d like to share with our readers?

Heather: As difficult as employees can be, I think one of the hardest tasks for HR professionals is reining in difficult managers, especially high-ranking executives and owners. You can be a fantastic HR manager, but if you have a person in authority who is abusive, reactive, not self-aware or who just doesn’t care, you will not be able to avoid problems. Employment lawyers preach management training, but it is not enough to check the training box on your “to-do” list. When you provide training — especially to these high-level individuals — don’t put all your emphasis on how to comply. You should also spend time on why it is in their best interest to change their behaviors. In other words, show them the money! Discuss the cost of lawsuits, turnover and training new employees. Discuss personal liability, and make the training interactive, such as role-play. If this still does not reach recalcitrant executives, make the case for an executive coach, or in worst-case scenarios, make the case to partners, superiors, or the board of directors for an exit strategy. This is much easier said than done, which is why HR is not for the faint of heart. And if you must, blame the employment lawyer — we’re used to it and we can take it.