Legal Trends - Can't Beat 'Em, So Join 'Em

By Jun 13, 2008
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HR Magazine, June 2008 In this corner -- operations; in the opposite -- human resources.

Difficult employment decisions frequently pit operations against HR professionals, who all too often face repeated managerial missteps, with the only difference being the managers' names, the jobs that aren't being done and the problem employees managers want to fire.

Consider the following scenario: 

For ages, a director of engineering put up with a subordinate who chronically underperformed and over-complained. Aggravation plus business pressures led the director to conclude that his subordinate had to go. He sought HR's approval but encountered resistance.

In response to the director's litany of the employee's failings and misbehaviors, the vice president of HR pointed out that the director had followed neither the letter nor the spirit of the company's progressive disciplinary policy. No paper trail showed that the employee had been advised of performance gaps and consequences for failing to close them. No one provided the employee with notice or opportunity to improve. The HR vice president opined that termination would not be morally or legally right, especially considering the employee's age: mid-50s. Now, the engineering director is mad at two people -- his subordinate plus a pain-in-the-neck HR professional who seems clueless about business and cares only for bureaucratic form, not substance.

You're more apt to sympathize with the VP. You may have had similar experiences. This article explores ways to minimize conflicts with managers without jeopardizing legal compliance. Chief among these: Help managers realize they are on HR's team.

Fallout from Avoidance

Just like a beginning skier who relies on her natural, intuitive, self-protective instinct to lean away from the downhill slope instead of putting weight forward, managers continually get themselves and their employers into trouble by trusting a natural, intuitive, self-­protective instinct in dealing with problematic employees: Avoid them. Avoidance exacerbates the problem, often leading to conflict, strife and litigation -- just as the beginning skier's protective instincts cause her to crash.

The engineering director is a typical example. For as long as he could tolerate, he avoided confronting his underperforming, high-maintenance subordinate. Avoidance didn't solve the problem; it made it worse. The employee became disruptive and embittered, eventually leading to behavior the boss could no longer tolerate.

Shift now to the HR professional, the gatekeeper of consistency, fairness and legal compliance. With this scenario, it's easy to see why HR professionals often ride a collision course with operations. The vice president of HR can't help but conclude that the ducks are not in a row. Terminating this 50-ish employee contrary to the clear language of the company's progressive disciplinary policy will create inconsistency only a plaintiff's lawyer will love.

When the HR professional justly and wisely objects to the director's proposed course of action, mistrust between HR and operations ensues. The former comes away with a deeper sense that line managers can't be trusted, while the latter comes away with a reinforced view that HR remains clueless about running an effective business. The stage is set for the next clash.

From Good Cop to Bad Cop

Sometimes, the roles are reversed and HR professionals call for sterner action than managers.

As noted by Douglas Duerr, employment attorney at Elarbee Thompson Sapp & Wilson LLP in Atlanta, this problem often surfaces when an employee who's liked by managers has a serious accident or illness and becomes unable to work. Out of misguided benevolence, managers deviate from policy by avoiding paperwork that would start the clock ticking on prescribed leave periods; by offering pay, benefits or amenities beyond what policy allows; or by otherwise acting as generously as possible, ignoring company policy.

After a while, however, managers discover that the employee seems in no hurry to return to work. Co-workers become resentful at the double standard and extra load, customers suffer, and the problem has to be dealt with. Previously bypassed, HR professionals are now called on to clean up the mess, including fixing the documentation gaps and policy inconsistencies, as well as being given the thankless task of telling the employee that the "country club" leave must come to an end, often beginning litigation.

Managers' misguided benevolence can take surprising dimensions. I was once called on to resolve a dispute between an HR director and an operations department head regarding the latter's desire to make an exception to company leave policy for one of his favorite employees. This employee had resigned because of personal issues; she understood that such a leave was not covered by company policy and therefore resigned voluntarily.

When I asked the manager, who was Caucasian, why the company should violate its policy and make an exception, he said because she was a great employee. "Besides," he added, "she's black."

The HR director and I then explained that regardless of how benevolent his intentions were, playing the race card was not a good idea.

The Super Salesperson

Virtually every employment lawyer tells a story of a super salesperson, the one who can sell sprinkler systems in Seattle and snowplows in Tucson. Often, these outsized personalities don't stop at customer sales but continue with behaviors that cause consternation for HR and result in billable hours for lawyers.

A representative example comes from Charlie Feuss, an employment attorney with Ford & Harrison in Minneapolis. He tells of a star salesman whose prospecting efforts extended beyond potential buyers of company products to female co-workers. In investigating an internal complaint, HR discovered that he had used company e-mail to send full-frontal nude shots of himself to women.

The vice president of HR concluded that discharge should follow from such egregious violations of anti-harassment and computer-use policies. However, she was met by determined opposition from operations based on how profitable this salesman was, and the chief executive officer ultimately sided with managers -- only to lead to sizable work for plaintiffs' and defense attorneys alike. In this clash of paradigms, as well as in similar cases, line managers won. It by no means follows that the companies won.

From Antagonism To Synergy

Creating synergistic relations between HR and operations will always be a challenge, given the perspectives. Relatively speaking, operations folks tend to be more "left-brained" in business and in organizational goals identified and pursued. This leads to a fair amount of linear thinking and impatience with real or perceived obstacles. It also leads to seeing employees more as means to other ends.

Although HR has a "left-brained" component, such as technical compliance with laws and regulations, HR professionals are, relatively speaking, more "right-brained." They care about how employees would answer questions such as: Are you treated fairly by your boss? Do you work in a safe, secure and respectful working environment? Do you feel that you are part of a trusted and cooperative team? HR's shades-of-gray perspective often rubs up against the black-and-white numerical perspective of operations. The fault line can produce friction.

Don't 'Just Say No'

A "just say no" campaign doesn't go over well with operations. Some HR professionals' perception that they are the arbiters of what is right and wrong needlessly compounds the problem.

Alternatively, use a business-case approach to address personnel issues, advises Isaac Dixon, regional director of diversity for Providence Health and Services in Portland, Ore. He counsels his HR team to avoid saying "yes" or "no," or "right" or "wrong." Instead, translate the employee issue or problem into cost-benefit terms, such as identifying action alternatives and quantifying their relative risks, costs and benefits.

This approach gives HR professionals more credibility when seeking to persuade managers that their short-term solutions, such as to fire or not fire an employee, may not make sense in a bigger-picture, long-term context. In this way, HR professionals approach issues as if they were consultants bringing expertise to bear in making a business case for the optimal course of action.

Instead of "You didn't properly document; you didn't properly warn; you didn't properly follow personnel policy," Dixon encourages HR professionals to say, "Let's look at the various alternatives, including the one you propose, and assess the costs, benefits and risks of each so that we make the best overall decision for operations and the company."

The costs and risks inherent in employment litigation often give HR a credible platform to address personnel issues in ways operations will accept. As an employment attorney, I learned this years ago while representing a construction company that had grown from "mom-and-pop" size to hundreds of employees, including a black employee who filed a claim with the U.S. Equal Employment Opportunity Commission alleging that he had been unfairly written up and passed over for a promotion because of race.

While the claim appeared dubious, "Pop" seemed intent on snatching defeat from the jaws of victory. Outraged by this "disloyalty," he insisted on the employee being fired. HR leaders encountered fierce resistance in trying to persuade him that such an act would be unwise. I was summoned to weigh in. The owner, a tough, gruff man who worked his way up from the gravel pits, confronted me because I sided with HR. Waving a finger in my face, he gestured toward the work yard and exclaimed, "I want you to tell me I can fire that black son of a bitch right now!"

If not for my rapidly beating heart, you could have heard a pin drop. Dumbfounded, I stammered the following: "Okay ... go ahead and fire him ... and if you do, I will thank you. My law firm will thank you. My wife will thank you. And perhaps even my kids will thank you."

Although my response was entirely unplanned, it worked. The owner backed off and didn't even seem angry for what I had said. A few months later, in exchange for a relatively modest severance payment, the employee resigned and released all claims.

I have since used a similar approach with senior managers intent on getting rid of an employee in legally problematic circumstances. Although it may be somewhat easier for an attorney to do this than an HR professional, the fact remains that framing the issue in terms of potential risk or cost to the company often helps managers come to their senses.

Paul Falcone, best-selling author and vice president of human resources for Nickelodeon, draws on California's liberal employment laws, including individual supervisor liability, for this purpose. He tells managers, "You aren't paid enough money" regarding the liability they face if they mishandle employee issues, and he counsels them to go to HR as soon as possible to get that "hot potato" off their lap. Falcone notes that this approach goes a long way in persuading managers that HR is on their side -- even when the result is to hold off on a termination decision managers otherwise wanted made immediately.

Promote Collaboration

It helps to think of how HR and operations professionals can make each other more effective when their areas of responsibility intersect.

Employment attorney Michael O'Brien of Jones Waldo in Salt Lake City urges employers to promote the message that line managers are part of the HR team. Getting managers to see themselves as responsible for meeting production, sales or other goals, and for effectively preserving precious human resources, goes a long way toward promoting relations with HR and achieving business goals.

To promote collaboration, Falcone recommends that HR organize periodic, short group meetings covering management and leadership issues. This gives HR leaders a platform to show how they can help managers be more effective. This, in turn, makes managers inclined to bring small problems to HR's attention as opposed to letting problems ripen into big ones.

In his book Winning (Harper Business, 2005), former General Electric CEO Jack Welch asserts, "Elevate HR to a position of power and primacy in the organization." He says this not to make HR professionals feel good; as he puts it, this approach is simply good for business.

If It's Broke -- Fix It

If relations between HR and operations at your workplace have been afflicted with antagonism or mistrust, don't give up. And don't wait for the next flashpoint when managers want something done that HR leaders say isn't appropriate. Instead, look for ways to identify shared interests and agree on approaches to problem-solving that will work for both groups. (See the online-only sidebar describing one way to do this, "Bridge Gaps with the Star Profile.")

Challenges will always exist in creating a smooth-running HR and operations team. Each group comes from a different background and perspective. As the suggestions above show, however, synergy can be achieved because it's in both parties' best interest to work together, and both suffer without cooperation.

As Benjamin Franklin admonished his fellow revolutionaries in 1776, "We must all hang together, gentlemen, or most assuredly, we shall all hang separately." 

Editor's Note: This article is not intended as legal advice. For specific situations, consult qualified employment law counsel.

The author is a partner with Ater Wynne LLP in Portland, Ore., and author of the upcoming book The Star Profile: A Management Tool To Unleash Employee Potential (Davies-Black Publishers, 2008).

Web Extras

SHRM web page: Workplace Law Focus Area

Online sidebar: Bridge Gaps with the Star Profile

SHRM book: Managing to Stay Out of Court: How to Avoid the 8 Deadly Sins of Mismanagement (SHRM & Berrett-Koehler, 2005) 

SHRM white paper: Will the HR Manager Please Stand? 

SHRM article: Turning Right in a Left-Brain World (HR Magazine

SHRM toolkit: Management Development 

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