The 5 Employment Law Mistakes HR Leaders Make Before Calling Counsel

HR leaders deal with difficult workplace issues every day. Most of the time, those issues can be handled internally through good judgment, clear policies, and consistent management.

The challenge is knowing when an ordinary HR matter has become a legal one.

Many employment disputes become harder to manage because counsel is brought in only after the company has already taken action, created an inconsistent record, or allowed a problem to escalate.

Here are five common mistakes HR leaders should watch for.

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 the 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 problem needs a lawyer.

Knowing which ones do is part of effective risk management.

A five-minute call before a decision can sometimes prevent a five-month dispute after it.

About Lanton, Lanton & Sosa Law PLLC

Lanton, Lanton & Sosa Law PLLC advises employers on employment law, workplace compliance, employee relations, investigations, policies, and other legal issues that arise throughout the employment lifecycle. The firm works with businesses and organizations on both routine workforce matters and higher-risk employment decisions.

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.

Before the Termination Meeting; A 5-Point Legal Checklist for HR

Ending an employment relationship is sometimes necessary. It is also one of the moments when an otherwise routine HR decision can become a legal problem.

The biggest risks often arise before anyone enters the termination meeting. An incomplete record, a recent employee complaint, an unresolved accommodation request, inconsistent treatment, or a missed state-law requirement can change the risk surrounding a termination considerably.

Before scheduling the meeting, HR should consider five questions.

1. Does the documentation support the reason for termination?

Start with the stated reason for the decision.

If the termination is based on performance, does the record show the performance problem? Are there evaluations, warnings, coaching notes, attendance records, emails, or other documentation supporting what the company says occurred?

If the decision involves misconduct, is there a record showing what happened and how the company investigated it?

The goal is not to create a paper trail after the decision has already been made. HR should determine whether the existing record tells the same story the company intends to tell the employee.

A last-minute effort to reconstruct months of performance concerns can create more questions than it answers.

Before proceeding, ask: If someone unfamiliar with this employee reviewed the file six months from now, would the reason for termination make sense?

2. Has the employee recently engaged in protected activity?

Timing matters.

Before terminating an employee, HR should check whether the employee recently raised a discrimination or harassment concern, participated in an investigation, requested an accommodation, complained about pay or workplace practices, took protected leave, or engaged in some other activity protected by federal or state law.

Protected activity does not prevent an employer from terminating an employee for legitimate performance or misconduct reasons. When an adverse action closely follows protected activity, however, the employer should carefully review whether the decision and supporting record are independent of the complaint.

Before proceeding, ask: Is there anything in the employee's recent history that could make this termination look retaliatory?

3. Is there an unresolved leave, disability, or accommodation issue?

A performance problem does not automatically disappear because an employee has a medical condition. It can, however, create additional obligations that should be considered before termination.

An employee does not necessarily have to use specific legal language to request an accommodation. A request for a workplace change because of a medical condition may be enough to trigger the accommodation process.

HR should therefore check for open accommodation discussions, medical restrictions, requests for leave, intermittent leave, or recent information suggesting that a performance or attendance issue may be connected to a protected condition.

This does not mean that requesting an accommodation immunizes an employee from legitimate discipline.

Before proceeding, ask: Is there an accommodation, leave, or medical issue that has not been fully addressed?

4. Have similar employees been treated consistently?

Consistency is one of the simplest termination checks and one of the easiest to overlook.

Consider how the company has handled similar performance problems, attendance issues, policy violations, or misconduct involving other employees.

Different circumstances can justify different outcomes. The important question is whether there is a legitimate explanation for the difference.

For example, if one employee received progressive discipline for the same conduct that is now producing immediate termination for another employee, HR should understand why.

The same principle applies to whether company policies were followed.

Before proceeding, ask: How have we treated other employees in comparable circumstances, and can we explain any difference?

5. Have you checked the termination mechanics?

The legal analysis should not end when the decision is approved.

HR should review what happens when employment actually ends, including:

• final wages and any applicable timing requirements;

• treatment of accrued vacation or paid time off;

• commissions or bonuses that may remain payable;

• benefits and continuation notices;

• return of company property;

• confidentiality and other continuing obligations;

• any severance or release agreement;

• restrictive covenants, where applicable; and

• state-specific termination notices or documentation.

These requirements can vary significantly by state, which becomes especially important for employers with remote or multi-state workforces.

HR should also decide in advance who will conduct the meeting, what will be communicated, what documentation will be provided, and how access to company systems and property will be handled.

Before proceeding, ask: Are we legally and operationally prepared for what happens immediately after the conversation ends?

When HR Should Consider Calling Counsel

Not every termination requires outside counsel.

Some situations deserve another look before the meeting takes place.

Consider involving employment counsel when the employee has recently complained of discrimination or harassment; requested leave or an accommodation; raised wage, safety, compliance, or whistleblower concerns; participated in an investigation; has an employment agreement or complicated compensation arrangement; is part of a broader reduction in force; or presents another fact pattern where the legal risk is not straightforward.

The best time to identify those issues is usually before the termination meeting, not after a demand letter arrives.

The Five-Point Check

Before the meeting, confirm:

1. Documentation: Does the record support the reason?

2. Protected Activity: Is there a retaliation concern?

3. Leave & Accommodation: Is anything unresolved?

4. Consistency: Have similarly situated employees been treated similarly?

5. Mechanics: Are final pay, benefits, notices, agreements, and state requirements covered?

A termination meeting may last only a few minutes. The decisions leading to it deserve more time.

About Lanton, Lanton & Sosa Law PLLC

Lanton, Lanton & Sosa Law PLLC advises employers on employment law, workplace compliance, employee relations, investigations, policies, and other legal issues that arise across the employment lifecycle. The firm works with businesses and organizations on both day-to-day workforce matters and higher-risk employment decisions.

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.