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

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

Ending an employment relationship is sometimes necessary. It's also one of the situations where a decision that seems straightforward can become a significant legal and financial problem for an employer.

The biggest risks often arise before anyone enters the termination meeting. An incomplete employee file, a recent workplace complaint, an unresolved accommodation request or inconsistent disciplinary decisions can change the legal considerations surrounding a termination.

For HR leaders, identifying these issues early can help avoid disputes, reduce unnecessary costs and give management a clearer understanding of its options.

Before scheduling a termination meeting, consider these 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 existing record support it? Are there performance evaluations, written warnings, coaching notes, attendance records or emails documenting the concerns?

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

The goal is not to create documentation after the termination decision has already been made. HR should determine whether the existing record supports the reason the company intends to give the employee.

A last-minute effort to document months of previously unrecorded performance problems may 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 review whether the employee recently complained about discrimination or harassment, participated in an investigation, requested an accommodation, raised a wage concern, took protected leave or engaged in another legally protected activity.

Protected activity does not prevent an employer from terminating an employee for legitimate performance or misconduct reasons. However, when termination closely follows protected activity, the employer should carefully examine whether the decision is supported by legitimate reasons independent of that activity.

This is one of the situations where involving employment counsel before communicating the termination decision can be particularly valuable.

Counsel can review the relevant circumstances, assess potential retaliation concerns and help HR determine whether additional investigation or documentation is needed.

Before proceeding, ask: Is there anything in the employee's recent history that could raise concerns about retaliation?

3. Is There an Unresolved Leave, Disability or Accommodation Issue?

A performance problem does not automatically disappear because an employee has a medical condition. However, an employee's medical circumstances may create legal obligations that should be considered before termination.

Employees do not necessarily need to use specific legal language to request an accommodation. A request for a workplace adjustment because of a medical condition may be sufficient to trigger an employer's accommodation obligations.

HR should review any open accommodation discussions, medical restrictions, leave requests, intermittent leave or recent information suggesting that an attendance or performance issue may be related to a protected condition.

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

However, terminating an employee without addressing an outstanding accommodation or protected-leave issue can create unnecessary legal exposure.

Employment counsel can help evaluate the employer's obligations and determine whether additional steps are necessary before proceeding.

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 the company has a legitimate explanation for those differences.

For example, if one employee received progressive discipline for conduct that is now producing immediate termination for another employee, HR should understand what distinguishes the two situations.

The same principle applies to following company policies and established disciplinary procedures.

Before finalizing the decision, HR should review comparable situations and document any legitimate reasons for different treatment.

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

5. Have You Checked the Termination Requirements?

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

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

• Final wages and applicable payment deadlines.

• Accrued vacation or paid time off.

• Commissions and bonuses that may remain payable.

• Benefits and continuation notices.

• Return of company property.

• Confidentiality and other continuing obligations.

• Severance and release agreements.

• Restrictive covenants, where applicable.

• State-specific termination notices and documentation.

These requirements can vary considerably by state, creating additional complications for employers with remote employees or multistate operations.

For example, an employer with employees working in several states may face different final-pay deadlines and obligations regarding accrued vacation.

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

For employers operating across multiple jurisdictions, employment counsel can help review applicable requirements and prepare the necessary separation documentation.

Before proceeding, ask: Are we legally and operationally prepared for everything that needs to happen immediately after the termination meeting?

When HR Should Consider Calling Counsel

Not every termination requires outside counsel. However, certain circumstances deserve additional review before the employer acts.

These include situations where an employee has recently made a discrimination or harassment complaint, requested leave or an accommodation, raised wage or whistleblower concerns, participated in an investigation or has a complicated compensation arrangement.

Legal review may also be appropriate when the company is considering a reduction in force, terminating an executive or managing employees across several states.

Employment counsel can help HR evaluate the decision, review supporting documentation, identify applicable legal requirements and prepare appropriate separation agreements.

The objective is to address potential issues while the company still has options, rather than waiting until a termination results in an agency complaint or demand letter.

The Five-Point Check

Before the meeting, confirm:

1. Documentation: Does the record support the reason for termination?

2. Protected activity: Is there a potential retaliation concern?

3. Leave and accommodation: Is anything unresolved?

4. Consistency: Have employees in comparable circumstances been treated consistently?

5. Termination requirements: Have final pay, benefits, notices, agreements and applicable state requirements been addressed?

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

How Lanton, Lanton & Sosa Law Can Help

Lanton, Lanton & Sosa Law works with employers and HR leaders on employment decisions, workplace compliance and the legal issues that arise throughout the employment relationship.

Our employment law practice assists employers with employee discipline and termination, workplace investigations, leave and accommodation requests, employment agreements, separation arrangements and multistate workforce compliance.

We work with HR leaders and management to evaluate difficult employment decisions, identify potential legal risks and develop practical approaches that account for both legal obligations and business needs.

If your organization is considering a difficult termination or facing a complicated employee-relations matter, contact our firm to discuss how we can assist before the decision is finalized.

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

Employers, Be Careful How You Classify Employees

One of the easiest wage-and-hour mistakes a business can make is assuming that a salaried employee is automatically exempt from overtime.

That is not always true.

Under the Fair Labor Standards Act, most covered employees are entitled to overtime when they work more than 40 hours in a workweek unless a specific exemption applies. Job titles and salary alone do not determine exempt status. The employee’s actual duties matter.

This becomes a problem when employers work backwards. A company decides that a position should not receive overtime, labels the employee “salaried” or “exempt,” and assumes the issue is resolved.

It is not.

A manager who spends most of the day performing the same work as everyone else may not qualify for the executive exemption. An office employee who performs important work may not automatically qualify for the administrative exemption either.

Employers should also remember that jobs change. Responsibilities evolve, companies reorganize, and employees may take on or lose duties over time. A classification that was appropriate when someone was hired may not remain appropriate years later.

That is why employers should periodically review exempt classifications and ask a simple question:

Why does this employee qualify for the exemption?

If the answer is simply, “because the employee is salaried,” “because we call the employee a manager,” or “because everyone in that department is exempt,” it may be time for another look.

Misclassification does not have to be intentional to create liability. Unpaid overtime can accumulate quietly over months or years.

The key point is simple: salary and exempt are not the same thing.

Employers should classify employees based on the law and the work they actually perform, not based on the payroll result the company would prefer.

AI Can Help HR. It Shouldn’t Make Your Employment Decisions

AI is becoming part of everyday business, and HR is no exception. It can help organize information, draft a job description, summarize a policy or help a manager prepare for a meeting. Where companies can get into trouble is using AI to answer the legal question behind an HR problem.

An executive may have an employee who has been underperforming. A manager may want to terminate someone. An employee may ask for an accommodation, raise a complaint about a supervisor or question their pay, leave or job classification. It is easy to type the situation into an AI program and ask, “Can we do this?” That is where I would be careful.

HR problems usually have a history. What happened six months ago can matter just as much as what happened today. Was the employee previously disciplined? Did the employee recently complain about discrimination, wages, safety or another workplace issue? Has the company treated other employees the same way? Is there a medical issue, leave request or accommodation involved? What has the manager already said in emails, text messages or prior meetings?

Those facts can completely change the legal analysis. AI only knows what you tell it. An employment lawyer should be asking about the things you may not realize matter.

Executives understandably want direct answers, especially when a personnel issue is taking up time and creating disruption. Sometimes there is a straightforward answer. Other times, the right answer is, “Let me see the documentation first.” A termination that looks simple may raise questions involving discrimination, retaliation, protected leave, disability accommodation, wage issues, an employment agreement or the company’s own policies.

The same applies to discipline, compensation changes, internal investigations and responses to employee complaints. The legal issue is often not simply whether the company has a reason to act. It is whether the company can explain and defend how it acted.

Consistency also matters. If two employees engage in similar conduct and one is terminated while the other receives a warning, there may be a perfectly legitimate explanation. There may also be a problem. AI does not know how your company handled a similar situation last year unless someone gives it that history. It does not know what another manager may have promised, what prior complaints were made or why one employee’s situation is different from another’s.

There is also another practical concern. HR departments deal with some of the most sensitive information inside a company. Employee medical information, compensation, workplace complaints, investigations, performance concerns and potential litigation should not automatically be copied into an AI platform simply because it is convenient. Companies should understand what AI tools their employees are using, what information is being entered into them and what internal rules apply.

None of this means AI should be avoided in HR. Used properly, it can save time and make people more efficient. The important distinction is between using AI to assist with the work and using it to make the legal judgment.

Use AI to help organize the question. Use your employment lawyer to help answer it.

When the issue involves a termination, workplace complaint, accommodation, leave request, wage question, investigation or another decision that could create legal exposure, a short conversation with counsel before the company acts can be much more valuable than trying to fix the decision afterward. In HR, one email, one conversation or one poorly handled decision can become detrimental later.

This article is for general educational purposes only and does not constitute legal advice. Employment law questions depend on the specific facts and applicable law. Employers should consult qualified counsel regarding their particular circumstances.

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.