The 5 Employment Law Mistakes HR Leaders Make Before Calling Counsel

HR leaders make difficult employment decisions every day. Most can be handled internally through clear policies, consistent management and good judgment. Others deserve a legal review before the company acts.

The challenge is recognizing the difference.

A termination following an employee complaint, an investigation involving senior leadership or an unresolved accommodation request may require more than the company's usual HR procedures. Bringing counsel into the process after a decision has already been made can leave the employer with fewer options.

Here are five common mistakes that can make difficult employment decisions harder to manage, and where early legal guidance can make a difference.

1. Waiting Until After the Decision Has Already Been Made

One of the most common problems is bringing counsel into the process only after the company has decided to terminate, discipline, restructure or deny a request.

At that point, the legal review can become much more difficult.

If an employee recently complained about discrimination, requested leave, sought an accommodation, raised a wage concern or engaged in another protected activity, the timing of the employer's decision may matter just as much as the underlying reason.

The goal is not to have lawyers approve every employment decision. It is to recognize the situations where a short legal review before the decision can prevent a much larger problem afterward.

Better approach: Identify high-risk decisions early and involve counsel before the final decision is communicated.

2. Trying to Fix Weak Documentation After a Problem Develops

Documentation matters, but timing matters too.

When an employee file shows months of positive feedback followed by a sudden burst of negative documentation immediately before termination, that record may raise questions rather than answer them.

The same problem can arise when managers fail to document performance concerns, inconsistent attendance, policy violations or prior coaching.

HR should not create a record simply because litigation is suddenly a possibility.

Better approach: Encourage managers to document performance and conduct issues consistently, contemporaneously and before a dispute develops.

3. Treating Similar Situations Differently Without Documenting Why

Different employees can receive different outcomes for legitimate reasons.

Problems arise when the company cannot explain those differences.

If one employee receives coaching for conduct that leads to another employee's termination, HR should understand what distinguishes the two situations. Differences in severity, prior discipline, job responsibilities or other circumstances may justify different treatment.

The important point is that the company should be able to identify and explain those differences.

Better approach: Before significant discipline or termination, compare the situation with similar prior cases and document the reason for any different outcome.

4. Assuming an HR Issue Is Not Legal Because No One Has Used Legal Language

Employees do not always say, "I am requesting a reasonable accommodation," "I am making a protected complaint," or "I believe this violates wage-and-hour law."

Instead, HR may hear:

• "I'm having trouble meeting this schedule because of my medical treatment."

• "My manager keeps treating me differently after I complained."

• "I don't think I'm being paid for all the time I'm working."

• "I need some time away to deal with a family medical issue."

Those statements may trigger legal obligations even when the employee never cites a statute or uses the language HR expects.

Better approach: Train HR and managers to recognize the substance of a concern, not simply the words the employee uses.

5. Calling Counsel Only When the Situation Becomes Adversarial

Many employers wait until they receive a demand letter, agency charge, lawsuit or attorney correspondence before involving employment counsel.

By then, the company may have fewer options.

Employment counsel can often be most useful earlier, when HR is deciding how to conduct an investigation, respond to an accommodation request, structure a separation, review a policy or address a difficult employee-relations issue.

A short conversation before action is taken can sometimes prevent months of dispute afterward.

Better approach: Think of employment counsel as a resource for difficult decisions, not simply as a response to litigation.

When Should HR Pick Up the Phone?

Consider involving employment counsel before acting when:

• Termination follows closely after a complaint or protected activity.

• An employee has requested leave or an accommodation.

• Discrimination, harassment, retaliation or wage issues have been raised.

• An internal investigation involves senior leadership.

• The company is considering a reduction in force or restructuring.

• Compensation, commissions, bonuses or equity are disputed.

• An employee has an employment agreement.

• The company operates across multiple states.

• The facts are unusual or the HR team is uncomfortable with the risk.

Not every HR decision requires outside counsel. The important thing is identifying which decisions warrant legal review before the company acts.

Employment counsel can help HR assess the risks of a proposed termination, review an investigation, address leave and accommodation obligations, or evaluate how a decision may affect employees across multiple states.

Early guidance can give HR and management a clearer understanding of their options while there is still time to make an informed decision.

How Lanton, Lanton & Sosa Law Can Help

Lanton, Lanton & Sosa Law works with employers and HR leaders on difficult workplace decisions before they become disputes. Our employment law practice includes advice on employee discipline and termination, workplace investigations, leave and accommodation requests, employment policies, wage and hour compliance, and multistate workforce issues.

We help employers assess their options, address legal risks and make informed decisions that work for their businesses.

If your organization is facing a difficult employment decision, consider contacting our firm before taking action.

This publication is provided for general informational purposes only and does not constitute legal advice. Employment laws vary by jurisdiction and circumstances. Employers should consult counsel regarding specific employment decisions.

Casandra Lanton, Esq. Lanton, Lanton & Sosa Law PLLC

When a Growing Company Needs More Than a Handbook

As a company grows, employment issues rarely arrive one at a time. New hires may work across several states. Managers may handle discipline inconsistently. Employment agreements may not keep pace with changes in compensation, remote work, or responsibilities.

These problems are easier to address before they become disputes. A growing company should periodically review its employment agreements, workplace policies, classification practices, hiring processes, and approach to investigations and termination decisions.

The goal is not to create unnecessary bureaucracy. It is to give managers a clear framework, give employees consistent expectations, and help the company grow without allowing avoidable employment risks to become expensive distractions.