Posted by: John Gilliland
May 08, 2007
Topic: Miscellaneous

Recently, I attended a program presented by a human resources professional.  It was quite good in terms of how to use a progressive discipline system, identification of common problems, etc. He was very knowledgeable in those areas.  Unfortunately, some of the information given concerning legal requirements was not correct.  The presenter did not know an employment lawyer was in the audience and, out of courtesy, I simply kept quiet. 

Non-lawyers giving legal advice in employment matters seems to occur rather often.  Unfortunately, the advice given may not be correct.  That's not to say they are intentionally giving bad information.  Rather, they simply don't know what they don't know or how courts may view various issues.  At other times, it seems to be because they feel compelled to give an answer instead of admitting they don't know something. 

If the individual is an HR professional (e.g. certified by the Society for Human Resource Management, "SHRM"), the problem rarely is that what is stated is completely wrong.  Instead, it is a matter of important nuances and identifying exceptions.  For example, the person may say that, to be lawful, a deduction from an employee's wages must be either required by law or approved by the employee.  That is correct in some states, but not in all.  Some states require more than simply the employee's consent, specifying what the deduction must be for and required elements for the consent form.  Employment law varies greatly from state to state. 

Of course, your HR personnel must be aware of basic legal requirements of the laws they are administering.  From a legal perspective, the HR expertise is in implementing and administering the laws.  But, that is different than giving legal advice or attempting to apply complex laws or court decisions to specific factual situations.  For that, advice of a knowledgeable employment/labor lawyer should be sought. 

In our practice, we see far too many situations in which employers have receive legally incorrect advice from non-lawyers.  It is unfortunate but too many persons seem unwilling to simply say, "I don't know. I'm not a lawyer." and then encourage the persons to whom they are speaking to seek legal advice.

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