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.”

The Problem With Handbooks? All Those Damn Rules!

The recently-purchased Tribune Company has issued its newly-revised employee handbook, and it’s a doozy. No, not long – it is apparently 2/3 of its original size. And not confusing, either. The L.A. Times (which the company owns) described the manual as “nothing like the mind-numbing, lawyered gobbledygook in most corporate manuals.” (Hey! They make that sound like a bad thing.)

No, Sam Zell’s new sleek, “innovative” manual eschews legalease for comedy and brevity, I guess hoping to foster camaraderie and brighten the atmosphere at the LA and Chicago offices. But in the process, Zell may be tying a blindfold around the company and walking it to the firing line. According to the Times, the manual begins:

Rule #1: Use your best judgment.

Rule #2: See Rule #1.

Rule #3 better be “ask your buddy who went to law school” or this is going to go downhill fast.

“Use your best judgment”? Honestly, I like Sam Zell. He reminds me of Daddy Warbucks. But this is just a patently bad idea. Does Zell not realize he’s talking to reporters? And that’s not nearly the worst of it.

For more excerpts from this lawsuit-waiting-to-happen, click the jump.

[Ed Note: We would love to get a copy of this manual. If anyone knows where they might sell bootleg copies, feel free to email us. We preserve anonymity.]

It gets so much better; from the Times article:

Among its nine “core values,” the manual encourages employees to “Question authority and push back if you do not like the answer. You will earn respect, and not get into trouble for asking tough questions.”

Sure. That’s always been my experience. Don’t get me wrong – I understand what Zell’s thinking – employee handbooks are usually a pretty boring read. So the purpose is good, and sometimes the handbook actually delivers some laughs. Consider the new discrimination policy:

* “2.5. Discrimination based on gender, age, race, religion, national origin, marital status, sexual orientation, disability or any other characteristic not related to performance, ability or attitude, protected by federal or state law, or not protected (such as inability to tell a joke, the occasional poor wardrobe choice or bad hair day), is strictly prohibited.”

* “4.5. Making the building too hot, banging on trash can lids or loud bagpipe music are annoyances you can complain about,” but such actions don’t constitute harassment on the basis of protected characteristics.

Ok, so it’s funny. But is it safe? Every proponent of the handbook decried the “legalease” and overlawyered thickness of employee handbooks, one analyst even said it was a good thing that this one hadn’t been across counsel’s desk. But what the hell is the point of an employee handbook that doesn’t keep you out of trouble?

The lead author of the manual, interactive CEO Randy Michaels, is convinced that not showing it to a lawyer is going to cut down on litigation costs for employment cases:

“The more policies you have, the more opportunities there are for someone who is very unhappy to sue.

“I’m amazed and amused at what lawyers get businesspeople to do,” he said. “I think we’ll have fewer legal problems with plain English and common sense than with pages and pages of rules.”

Riiiiight. Let me know how that turns out for you. Honestly, If I’m a plaintiff’s lawyer and I read that LA Times article, I’d be sending a business card to every mope at every desk the bullpen and then wait. And if the Trib had a problem with it, I’d tell them I was merely “taking an intelligent risk” (That’s Rule #6).

When it’s all said and done, you’ve either got the lawyers at the front end or the back, and all it takes is one lawsuit to make the funniest of manuals look pretty lame.