Law firms are not exempt from the legal requirements to operate a workplace free from discrimination. That means ensuring that characteristics other than an individual’s skills, experience and knowledge do not become factors in making human resource decisions. However, firms by their traditional nature as partnerships are often highly subjective and personalized environments. Personnel decisions facing administrators can run the risk of pressures and expectations that are more arbitrary than the law allows. A review of some key issues demonstrates that administrators must tread warily at ensuring that fairness is fundamental in their firm’s personnel decisions.
Fairness concerns begin with the hiring process, and that is why it makes sense for most small and mid-sized law firms to use employment agencies in filling staff positions. Hiring requires specialized resources to which the typical in-house administrator often does not have access. Employment agencies have the knowledge, skills and experience at interviewing, psychological evaluation, and compliance with employment discrimination law that enables them to handle the process effectively. They also have the time and investigative skills to verify a potential hire’s credentials and experience – a vital task that’s increasingly difficult to do because of privacy laws.
Having a comprehensive job description for every position in the law office is helpful to avoid allegations of unfairness. The absence of such descriptions promotes inconsistency and threatens objectivity. Descriptions should include the specific, significant tasks of each position and the performance standards by which the accomplishment of these tasks is judged. Hiring is not the only issue impacted by job descriptions. When employees understand what they should be doing and how that expectation is reflected in their annual evaluations, their performance is more likely to be positive – and they are less likely to resort to legal action for perceived unfairness.
Once hiring decisions are made, legal requirements about dealing with staff and lawyers are highly complex and frequently changing. What your firm doesn’t know about legal responsibilities really can cause major problems. Consider these sensitive examples:
- Federal law requires that employers affirmatively support and reasonably accommodate an employee’s religious beliefs in the workplace.
- If the firm tries to “spare” a female employee from travel and the resulting childcare expense, such action could support sexual discrimination claims under the Equal Pay Act, Pregnancy Discrimination Act and Family Medical
- Leave Act.
- Welcoming back a reservist from active duty while expressing hope that he won’t be called up again risks violating the Uniform Services Employment and Reemployment Rights Act
These are just a few of many possible examples where the burden of compliance is fully on the firm administrator. A law office must treat all employees in a non-discriminatory manner as defined by law. To this point we have been considering staff issues, but fairness fairness must be part of HR decisions involving lawyers too. Firms that terminate older lawyers must guard against litigation: inconsistency in the benchmarks used to identify groups of older lawyers who are de-equitized when past a certain age, can spur wrongful termination claims. Similarly, although associates are employed at will, termination of an associate who has not attained the level of desired quality requires written standards that define a lack of or deterioration in performance are essential to avoid associate claims that their treatment was unfair or biased. Associates may have their expectations set too low about how they’ve performed against the standard, particularly when the firm did not explain clearly what kind of performance is expected as a financial and service baseline. That can be problematic for those firms that don’t believe in sharing financial or detailed operating information with associates, but to do so helps clarify and explain the issues involved if associates are deemed to fall short of the standard. The requirement that a law office, like any other business, must treat all employees in a non-discriminatory manner as defined by law is beyond question. As law firms take on more characteristics of their corporate clients, they must adhere to the same business principles and comply with the same diversity laws applicable to their clients. Administrators are on the front lines of this compliance challenge, and must help their firms take it seriously.
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