Job Offers “The Legal Way”? God Help Us.

I recently stumbled across an article on the usually-great Business Management Daily with the following title:

Offering a job?  Do it the legal way

First off, I know what some of you are thinking, and don’t get ahead of me.

According to the article, “your hiring managers could be inadvertently locking your organization into an employment contract with the new hire. It’s a common mistake, and only a few words can send you down the wrong path.”  I know, it’s scary.  Even more frightening:  “Employers that use written job-offer letters run the highest risk of creating implied promises.”

Apparently, all of this misery at the hands of your new hires can be avoided if you follow six simple steps, including “don’t imply job security“, “don’t cite annual salary figures” and “don’t describe job responsibilities.”

Yes.  You read that right.  When you hire someone, no matter what you do, do not describe their job responsibilities.  Which will be easy, since you won’t be one of those dumb employers putting their whole business on the line by using written job offers.  Oh, and you should definitely “clarify that continued employment depends on several things” like drug tests and nondisclosure agreements.

In reality, the list is 100% accurate, and each point speaks to an area where employers truly have gotten into trouble in the past.  I mean, written policies really can become employment contracts when a case goes to court.  And job descriptions can be a roadblock to a defense.   So what’s the problem?

Let’s summarize: the gist of the article is that, if you want to do things “the legal way” when you offer your excited, ambitious new hires a job, don’t tell them their annual salary or provide them with a description of their responsibilities, and make sure they understand that they will need to take a drug test and sign a nondisclosure agreement if they want to work for you, but definitely don’t write out anything official.

And we wonder why our clients get confused.

Here’ s an observation:  The only things that people talk about doing ”the legal way” are things that are 90% illegal.  Come on, you’re offering someone a job, not burying bodies or growing pot.

For all its legal accuracy, this article embodies one of the biggest problems clients have with their HR lawyers: too much law, and not enough HR.  Let’s say you go with this plan – what will happen?  You may protect yourself from some litigation, but the price will be all of the fire inside your fresh new hire, which will get swallowed up in confusion and frustration. 

And let’s think about this for a second – who sues employers?  People who are frustrated.  Or confused.  Usually both.  So don’t be so sure you’ll avoid that litigation, after all.

Does this mean you should just do whatever you want, write a dollar amount and a promise on a napkin that your new hire will have a bright future at your company and have her sign it?  No.  Definitely consult a lawyer, and follow their advice ardently. 

But remember that conversations with attorneys aren’t one-way streets.  There’s usually a few different ways to keep yourself safe, and if you’re worried that legal advice is going to deflate your workforce’s enthusiasm, your employment lawyer should know.  And care. 

Which brings me to the lawyers.  I think it’s clear that sometimes answering a client’s employment law question takes more than just analyzing the law.  Your client could follow these steps and be safe, but would they grow their business?  Would they repel top talent in the process?  I think every answer should start with an understanding of what the client’s goals are.  Otherwise, your solution could cause more problems than it solves.

Employers: If you are one of the short list of companies out there actually making job offers (so McDonalds, the Government and…) please, please don’t delete all of your job descriptions or stop offering written hiring packages.  Remember that the #1 way to avoid litigation is by nurturing satisfied employees.  Their first days should be enveloping, not exclusionary.  Even if the latter is “the legal way.”