Avoid legal issues, problems with these employment best practices

Whether large or small, a law firm should follow the same best practices as other businesses to avoid or minimize employment law and other human resource complaints, experts said at a recent American Bar Association-sponsored panel discussion.

Panelists for the webinar “Employment Law for Law Firms: Best Practices for Law Firms as Employers” said that while legal professionals have certain characteristics not found in many other fields, the large majority of law firm employment decisions are covered by federal or state laws and should be heeded.

“Be consistent,” urged Grace E. Speights, a partner in Morgan Lewis’ labor and employment law practice who also serves as managing partner of the firm’s D.C. office. “It is the inconsistency in the way you treat people at times that can get you in trouble.”

Speights pointed to mandatory retirement as one “really hot topic” that has drawn the focus of federal overseers in the employment area. What can make this a sticky issue is that the legality of a mandatory retirement requirement can change depending on whether the lawyer is an equity partner (usually can be retired) or an employee eligible for age-discrimination protections.

“There is no question that firms find this a very challenging issue,” Speights said of mandatory retirement and “partner” classification in general. She suggested firms “look at partners on a case-by-case basis” to make sure they are contributing and can be regarded as a partner and not an employee.

That also goes for a case on the other end of the spectrum — dealing with an associate bypassed for a partnership position. David M. Cook, founder and managing principal of Cook & Logothetis LLC in Cincinnati, said these calls are “employment decisions plus” and should be done with a significant amount of care. He stressed that these decisions should be “business decisions” devoid of gender or personal bias.

Even if your firm is small, like his, and outside the scope of federal labor laws, it could still fall under state law. “You are still going to have to look at this from the same perspective,” Cook said.

Caregiver responsibilities present another difficult issue, said Cara E. Greene, a partner in Outten & Golden’s New York office. She outlined a situation in which an attorney was denied promotion because of the necessity to be away from the office because of young children at home. In some situations, these cases can raise gender bias issues. Law firms that allow stereotypes to dictate or influence actions or attitudes toward employees risk running afoul of the law, she said.

The panelists also discussed a number of other ongoing issues, such as paying interns, requests for accommodations and leave, and client preferences in staffing. In the first two cases, best practices and prevailing law or industry standards are the best guide to follow. In the last case, a law firm should not allow client preferences to govern its actions if doing so would violate the law.

With the growth of contract attorneys, moderator Patricia Costello Slovak, a labor and employment lawyer at Schiff Hardin LLP in Chicago, observed that as “learned professionals, lawyers doing legal work are exempted from overtime.” Problems, however, could arise when a contract attorney is principally doing nonlegal work, such as document inspection.

“Overtime work can be governed by either federal or state law,” she said. Some work, she cautioned, does not qualify for the “learned” job description.

The webinar was sponsored by the ABA Section of Labor and Employment Law and supported by five other ABA entities.