The involvement of lawyers in some public employment relations situations is like adding chocolate to peanut butter: the elements mix well together. In other situations, incorporating lawyers is like adding ice cream to pickles: the combination does not work. How is one to know when legal involvement is more chocolate and peanut butter versus ice cream and pickles?
First of all, let’s get our terms straight. When I say “lawyer”, I mean both a lawyer representing an employee/former employee and a lawyer that’s representing management (either as an employee of the organization or someone retained to represent the organization.) It is a big mistake to allow lawyers for one party but not the other. If the employee is represented by legal counsel and management is not, chances are very good that the lawyer will intimidate management. And vice versa. My general rule is that either both sides are represented or neither side is represented. Now that we’ve gotten that out of the way, let’s look at where lawyers can make a positive difference, both for the organization and the employee.
Chocolate and Peanut Butter It is wise to involve lawyers before employee conferences (whether disciplinary, pre-disciplinary, or pre-termination) and during quasi-judicial hearings. These are chocolate and peanut butter scenarios that benefit from legal advice and advocacy. Lawyers, by training, are eternally poised to give advice. You may recall that a synonym for “lawyer” is “counselor”. This role, providing legal advice to employee and employer clients, is one of the areas in which the participation of lawyers provides significant value. Most employees know little about law, especially employment law. Seeking the advice of a lawyer before taking any action (or declining to do so) is a smart move for both employees and employers. And any employer who has dealt with employees who represent themselves will welcome the presence of competent legal counsel in the employee’s corner. (Whether it is more stressful to deal with less-than-competent lawyers or with employees representing themselves is another topic for discussion.) Lawyers are also taught to advocate, which comes in handy if there is a formal hearing or quasi-judicial setting where the employee has legal representation as well. (See my earlier note on everyone or no one being represented by counsel.) Indeed, some variety of “advocate” is the word for lawyer in French, Italian, Spanish, etc. In these settings, lawyers can hopefully bring forth useful information or use their skills to expose a lack of substance in the other party’s position.
Ice Cream and Pickles While is smart to get legal advice prior to pre-disciplinary, pre-termination and disciplinary conferences, do not make the mistake of involving lawyers in these conferences. These meetings serve to hear the employee’s side of the story. They are not hearings: evidence is not taken and documents not offered. Such meetings are basic due process, notice to the employee and the employee’s opportunity to respond. There is simply no useful role for a lawyer representing either management or the employee in this situation. Lawyers in this setting can introduce needless conflict and overly complexify next steps. It is a little like bringing your divorce attorney to marriage counseling.
So, lawyers in employee relations? They are like peanut butter and chocolate when providing legal advice before employee conferences and advocacy during hearings and other quasi-judicial situations. They are like ice cream and pickles during employee conferences, when the goal is to listen to the employee.