The relationship between HR professionals and lawyers can be an important one, and it covers a wide range of co-operation — from using lawyers only when there’s a problem to partnering with them strategically and relying on them as a trusted resource.
But what relationship is the most common? Canadian HR Reporter and the Human Resources Professionals Association (HRPA) conducted a Pulse Survey to find out what role lawyers play in the practice of HR.
HR, lawyers working hand-in-hand
Lawyers pricey but generally worth it: Survey
HR, lawyers working hand-in-hand
By Amanda Silliker
At Compass Group Canada, the HR department works closely with the in-house legal team.
The team is very collaborative and helps HR support managers, and managers support employees, said Gavin Clingbine, director of human resources at the 25,000-employee food services company in Mississauga, Ont.
“What’s critical in today’s employment market and for employers is attracting, retaining and engaging employees. And part of that is managers making good and informed decisions with HR support — and the backing behind that is good legal advice,” he said. “They’re a piece of the picture to being a top employer.”
The legal team at Compass is “100 per cent” a strategic partner to HR, said Clingbine. And more than one-quarter (28 per cent) of HR professionals across the country consider their lawyer a strategic business partner, according to a Pulse Survey. Another 26 per cent consider their lawyers partners in some aspects of strategic planning.
But 46 per cent only use their lawyer for transactional support, found the survey of 552 Canadian HR Reporter readers and members of the Human Resources Professionals Association (HRPA).
“An HR director or HR VP has strategic knowledge themselves and has a background in employment law and certainly knows what policies to put in place that would be proactive against any litigation,” said Evelyn Mayor, director of human resources at Canada-Drugs.com Group of Companies in Winnipeg, which has 206 Canadian employees.
More than two-thirds (69 per cent) of survey respondents said their lawyer understands both the practical and legal sides of HR.
“It’s a complete package. It’s not just about numbers or black and white. When you’re dealing with people, everybody’s different, it’s about treating people with compassion, what are fair expectations,” said Catherine King Ward, human resources manager at Houghton Canada in Brampton, Ont., which has 30 employees.
One of the lawyers whom the Nova Scotia Liquor Corporation (NSLC) works with specializes in HR issues, and his practical understanding of HR is very helpful, said Roddy Macdonald, vice-president of human resources at the 1,500-employee corporation, based in Halifax.
“Advice that is just kind of conceptual legal advice is not as handy as advice that’s practical and meets the legal requirements but can be implemented in practice,” he said.
More than one-half (55 per cent) of survey respondents said their lawyer understands their organization and its structure very well. One-third (34 per cent) said he understands it to some degree.
“We want the law firm to understand the organization well enough to be able to give general advice, both in dealing with specific issues that are on the go as well as advice around general approach, so as to avoid issues in the future,” said Macdonald. “You want them to gain an understanding of not just the structure but the culture.”
The head of the legal team at Compass is on the corporate board, attends all the executive committee meetings and is very familiar with each line of business, said Clingbine.
The Compass legal team also spends time with the staff outside of the office to better understand exactly what they do.
“It’s about the big picture. A really good employment lawyer today understands what HR has to deal with day in and day out and you can do that in a number of ways: Be at the executive table, listen to your HR group and spend some time in the field,” said Clingbine.
In the last 12 months, 34 per cent of survey respondents consulted a lawyer for employment-related matters more than 10 times. Forty-three per cent consulted them two to 10 times.
Nearly 9 in 10 (87 per cent) respondents said they consult an employment lawyer for assistance with terminations.
“We would use them for a template but we wouldn’t go to them for every time. So if you’re hiring in the C-suite, you get one template letter; if you’re terminating, one template letter and maybe just get them to review it,” said Mayor. “You want to make sure your i’s are dotted and t’s crossed from the perspective of litigation.”
Other common reasons for consulting a lawyer include: wrongful dismissal suits (40 per cent), employment contracts or hiring (37 per cent), return to work and accommodation (32 per cent) and harassment claims (31 per cent).
Many people contact a lawyer when problems arise, but 85 per cent of HR professionals at least sometimes reach out to counsel to proactively prevent litigation and complaints, found the Pulse Survey.
With Houghton’s head office in the United States, dealing with HR issues can be a challenge because Americans see things very differently, said King Ward, who regularly consults with lawyers proactively for guidance.
“If we’re bouncing ideas around about moving people or making some changes, I’ll place a call and get their take on it before we actually do any solid planning,” said King Ward. “I believe it has saved us a lot of money by doing it right the first time.”
One-quarter (26 per cent) of survey respondents have used a lawyer to train themselves and their management team on best HR practices. At Compass, the legal team has provided training on how to best draft a letter to another lawyer, respond to a human rights claim and proactively educate the workforce, said Clingbine.
“When we do a training program, they are stakeholders in the content, so they’ll say, ‘Here’s some things to add on this’ — we engage them, but they also want to be engaged,” he said.
Over the years, NSLC has used law firms to help make sure HR and operational staff have an understanding of the current legal trends, especially those pertaining to a unionized environment, said Macdonald.
The liquor commission also worked with a law firm to run a full-day mock arbitration. Articling clerks from the law firm acted as lawyers and company staff acted as witnesses, an HR representative and the grievor. A senior employment lawyer acted as the arbitrator and handed out an award at the end of the day.
“It provided an opportunity for both HR staff and line supervisors to experience what an arbitration process can be like. They learned the importance of good documentation and gathering the facts fully before taking action on a workplace issue,” said Macdonald.
Value for money?
One-half (53 per cent) of survey respondents said lawyers are sometimes good value for the money, but not always.
It’s really important that HR professionals understand how to use legal services because it can be easy to run up the bill, said Macdonald.
“It’s important to balance drawing on legal services for legal and strategic advice without having them do a bunch of transactional stuff that you should be doing in-house,” he said. “You have to pick and choose.”
Forty-three per cent of respondents said although lawyers are expensive, they are always good value for the money.
“It’s a competitive marketplace and you need important and winning advice to do what’s right for staff and the company, and you need to have good employment lawyers,” said Clingbine. “They’re worth every penny.”
Lawyers pricey but generally worth it: Survey
By Kristina Hidas (Analysis)
The results of the most recent Pulse Survey revealed HR professionals rely on employment lawyers for direction and advice in many aspects of their human resources practice. Where they don’t, it’s because HR managers don’t have the authority to consult a lawyer or their organizations can’t afford the legal fees.
More than three-quarters (77 per cent) of respondents have consulted a lawyer more than twice in the past year, with one-third having sought a lawyer’s advice more than 10 times in the past year. Only three per cent have never consulted a lawyer in the course of their HR practice.
Of those who do not consult a lawyer, 42 per cent said it is because they don’t have the authority.
Fifteen per cent of respondents only use a lawyer if there is an existing legal problem to resolve. The balance consult lawyers proactively either sometimes (52 per cent) or always (33 per cent).
Even though the large majority use lawyers before there is a problem, only one-third have an in-house legal team, while two-thirds seek counsel from outside.
The most prevalent reasons why lawyers are consulted are hiring and terminations, policy work and accommodation issues — but lawyers are also engaged to consult on contracting out work, misconduct in the workplace, health and safety and organizational changes.
It’s clear from the survey many HR professionals share the critical details of their organization’s structure and daily functioning with their lawyers, whether the legal team is in-house or not.
A solid majority (69 per cent) of respondents said their lawyers understand both the practical and legal sides of their organizations, while only five per cent said their lawyers strictly understand the legal side.
It’s not surprising, then, that respondents said their lawyers understand their organization very well (55 per cent) or to some degree (34 per cent), as opposed to having very little understanding (seven per cent).
Not only are lawyers frequently and consistently consulted, but they are closely familiar with the policies, employees and design of the organizations they advise.
The written commentary provides some insight into the consistency with which HR professionals consult lawyers as part of their work — we heard a lot about employment lawyers having an understanding of the law, its implications and its finer points. HR professionals said they rely on this specialized knowledge to get the job done right, especially when it comes to a wide spectrum of labour issues.
“HR professionals, although trained in employment law issues many times, are not actually lawyers. I have a great deal of experience working as a senior human resources professional… I understand that when it comes to legal issues, I am not fully equipped to proceed on all matters without legal consultation… I could not imagine ever working for an organization that did not see the value… of making use of legal counsel for human resources issues,” said one respondent.
Many of the written comments also said that when organizations do not consult lawyers because of the cost, it is often at their own legal and financial risk.
Where consulting a lawyer is not possible — whether it’s due to the cost or not having the authority to do so — respondents made suggestions as to how they develop and broaden their own knowledge of the law.
Staying abreast of employment law decisions, keeping current with employment law updates that are written and shared by their lawyers’ law firms at regular intervals throughout the year, and attending professional development workshops and seminars on employment matters all help HR professionals develop their own understanding in the absence of a legal professional.
One thing everyone agreed on is lawyers are expensive. Asked if they are good value for the money they charge, two per cent said lawyers are not worth the expense. About one-half (53 per cent) said they are sometimes worth the expense while 43 per cent said lawyers are always worth the money, pointing again to the importance HR professionals place on the relationship between human resources management and the legal profession.
Kristina Hidas is vice-president of HR research and development at the Human Resources Professionals Association (HRPA) in Toronto. She can be reached at firstname.lastname@example.org or (416) 923-2324 ext. 370.
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