When to call a lawyer

HR should know when experts are needed
By Brian Kreissl
|Canadian HR Reporter|Last Updated: 08/05/2010

Relatively few Canadian HR practitioners have formal legal training. Even with a Certified Human Resources Professional (CHRP) designation, HR professionals often feel ill-equipped to deal with complex legal issues. In fact, the CHRP doesn’t have a legislative knowledge component.

With the expertise and peace of mind a good employment lawyer can bring, it’s hardly surprising many HR practitioners seem to have lawyers on speed dial, despite the fact legal fees can be a significant expense. Fortunately, there are a few things HR professionals can do to help control legal costs.

The first thing an HR practitioner can do is improve her legal knowledge. While an HR person should never replace a qualified employment lawyer, she really shouldn’t have to run to a lawyer every time she has a simple question about employment standards legislation or an employment policy.

Understanding and being able to apply employment law is well within the scope of the HR profession. And 92.9 per cent of HR professionals believe an adequate knowledge of employment legislation is important to an HR practitioner, according to a recent survey by Canadian HR Reporter and Human Resources Professionals Association (HRPA).

Significantly, HRPA — recognizing many of its members advise line managers on employment law matters, draft contracts and even represent organizations before employment tribunals — recently obtained an exemption for members on the requirement to be registered with the Law Society of Upper Canada as a paralegal under Ontario’s Law Society Act. Even if some HR professionals don’t feel entirely confident dealing with legal issues, it’s clear many people both inside and outside the profession expect them to.

HR professionals can improve their legal knowledge in a number of different ways, such as taking courses, attending seminars, lectures and webinars, reading books, articles and journals, subscribing to HR and employment law services, and reading information available on blogs, government and law firm websites and from professional associations.

HR can help organizations save on legal fees by “making detailed notes, organizing all relevant supporting documents, fully disclosing all facts, good and bad, upfront to your employment law counsel — which avoids unnecessary and costly complications later on — and drafting well-written chronologies, which can be presented to your lawyer to assist in quickly understanding the factual circumstances,” says Ron Minken, a Markham, Ont.-based lawyer and mediator at Minken Employment Lawyers.

HR professionals can also draft simple employment documents before having them vetted by a lawyer, to save on the expense of having the documents drafted by legal counsel. But this can be a double-edged sword.

“When it comes to drafting documents, it’s crucial for clients to obtain employment law advice,” says Minken. “When a client attempts to draft a document on their own, it may be helpful or harmful from a cost perspective, depending on the specific document, as it may be easier and less time-consuming for counsel to draft the document from scratch rather than trying to revise an existing document.”

As an example, there is Ontario’s new anti-violence and harassment legislation, Bill 168.

“Given the newness of the legislation and the potential severity of the sanctions, it’s recommended that clients do not draft their own workplace violence and harassment policies and, instead, have these drafted by an experienced employment lawyer,” he says.

Being proactive and avoiding litigation in the first place is probably the best cost-containment strategy of all.

“For employers to be cost-conscious, they should be proactive by seeking advice upfront to avoid pitfalls later on down the road,” says Minken.

Brian Kreissl is managing editor of Consult Carswell. He can be reached at brian.kreissl@thomsonreuters.com.

Seeking Counsel

Not HR’s role

The following are some red flags that indicate it’s probably time to contact a labour or employment lawyer rather than having a HR professional try to tackle the problem:

• When faced with actual litigation — if you’ve been served with a statement of claim or sent a letter from an employee’s lawyer.

• When communicating to employees during a union organizing drive.

• When a government labour or safety inspector comes calling.

• In the event of a serious workplace accident or workplace violence.

• When faced with serious allegations of any kind of discrimination or workplace harassment.

• When creating a complex employment contract, especially one that includes provisions such as a non-competition or non-solicitation agreement.

• When terminating an employee for cause.

• Sensitive situations such as terminating a pregnant or disabled employee, conflicts of interest, inappropriate off-duty conduct, frequent absences or lateness.

• Intellectual property disputes involving ownership of patents or copyright.

• Employment concerns related to mergers, acquisitions, divestitures, outsourcing, transfers or sales of a business (other than through a simple transfer of shares).

• Pay equity disputes.

“Also, whenever there’s the perception that the employer’s and employee’s rights or obligations are in conflict, a lawyer should be consulted. Proactive advice may very well prevent a bad thing from happening, which is preferable than having to fix a negative situation once it has occurred,” says Ron Minken, a lawyer at Minken Employment Lawyers in Markham, Ont.

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