Reflections on Five Decades of Employment Law

​Michael Patrick O'Brien, a lawyer with Parsons Behle & Latimer in Salt Lake City, has been practicing employment law since the Reagan administration. In 2001, he was named Utah State Bar Employment Lawyer of the Year. He's also the author of Monastery Mornings (Paraclete Press, 2021), a book about growing up in a most unusual place—a Catholic Trappist monastery in rural northern Utah.

Here are some of his observations and reflections on his employment law practice over the years.

In your career, what would you say are the biggest changes that have occurred regarding employment law and litigation? 

There are so many more laws and regulations impacting the workplace today than when I started practicing law in 1986. These laws originate at all levels of government now—federal, state, agency and local. To compound this seismic change, more employers are multistate instead of just local, and many more employees work remotely, which means the first question a competent employment lawyer must ask a client today, before giving advice, is "Where does your employee live?" A good example of this change is a PTO [paid-time-off] policy review project we just completed for a client. This would have been a relatively simple task back in 1986. Today, that client has employees in a dozen different states, half of which have unique paid-leave-law statutes. Giving HR law advice used to be providing a blanket of comfort for a client; now we must assemble a patchwork quilt!

What changes have you seen in the HR profession? 

In some ways, the more things change, the more they stay the same. I've been blessed to have HR folks as clients. They are smart, hardworking, devoted, team-focused, compassionate and lots of fun. None of that has changed. What has changed for them, from my legal vantagepoint, is the complexity and risk associated with their jobs. Regarding complexity, see my answer above. Regarding risk, when I started practicing law, the only professionals who really had to worry about malpractice claims were doctors and lawyers. Now, it seems like most employment claims involve some element of what I call "HR or supervisor malpractice," alleging not just a violation of laws or rights, but also that the involved manager deliberately or negligently messed up or made things worse. It is an intense and difficult spotlight to work under.

What's the most outlandish case you ever had? 

There's so much that it's hard to choose only one. Sometimes, the "evidence" in a case is so graphic I must warn my assistants it might burn their eyes if they look at it. The plaintiffs/employees can be an eyeful, too. One dropped his case immediately after I asked him about his criminal record. Another had been arrested for trying to carry a gun into the airport, so we interviewed him in the courthouse after he walked through the metal detector. My favorite plaintiff-behaving-badly example is the fellow who—while his claim was still pending—dressed up as a T-Rex and paraded in protest in front of the courthouse. It may be the only part of his case that had any teeth in it!

For HR professionals desiring to protect their employers from claims and litigation, what are your top five pieces of advice?

1. Know the applicable law and comply with it. Get competent help on—and ask questions about—legal issues if/when you need it.
2. Know the facts, and get all sides of the story, before you make a decision on how to comply with the law or deal with a workplace issue.
3. Take a breath before you take an action, which hopefully will give you an opportunity to think again and ensure that your proposed action is the right/best one.
4. Document what you did and why, and make sure your supervisors do the same thing.
5. Be kind and humane. If you deny someone their dignity, even when giving them difficult news, you significantly increase the chances they will call a lawyer and try to find a way to sue the heck out of you.

Looking back on your employment law career, what are you most grateful for? 

I am grateful I can do interesting work about interesting issues with interesting people and get paid for it, too! I work almost exclusively with employers, which I believe is one of the best ways to promote one of my core personal values—helping people find and keep jobs without worrying about discrimination or harassment based on their race, sex, age, sexual orientation, disability and many other protected classes. I also am proud to belong to a legal profession which, by and large, dedicates itself to the self-evident principle that all people are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty and the pursuit of happiness.