Follow Your Lawyer’s Advice

The case every lawyer has been waiting for was decided last month in the United States 10th Circuit Court of Appeals. A company trying to get out of an overtime violations case defended itself by saying it relied on the advice of its lawyer. But the court pointed out that the company had only selectively followed the attorney’s advice. The company ignored the second part of the legal advice it received and made no real changes in its compensation policy in response to the lawyer’s opinions. So the company’s defense failed. Mumby v. Pure Energy Services (USA), Inc., (10th Cir.)(Feb. 22, 2011).

Why is the case so meaningful to employment lawyers like me? Because too often, clients who pay me for my legal opinion decide to dismiss some or all of my advice if it means they will have to change the way they do business. So many companies are slow or unwilling to adapt and change, even when new employment laws or regulations require employers to rewrite their policies or update their procedures. They resist change even when it means they will be penalized or sued when they get caught. But they never believe they will get caught, despite statistics that show even small companies face an adverse claim by an employee or former employee at least once every five years.

Teenagers often use similar risky thinking when making bad decisions, such as “I won’t get caught if I drive home, even though I’ve been drinking beer all night. It was only a six-pack, after all!”  Employers tell me all the time that they believe their employees are like a family and won’t sue them, the company doesn’t have the money to change their procedures, or they just can’t find the time to comply with all these silly regulations. My favorites are the employers who tell me, “By God, this is my company. I built it with my own hands and I’ll be damned if the government is going to tell me what to do”.

I sympathize with the independent spirits and time-crunched lives of these business people. I am a small business owner myself and I understand the time and money constraints that we all face. But I accept that the government can tell me some things about running my business. So I am still going to pay my employment taxes, compensate my employees for overtime if they work more than 40 hours in a workweek, check the employment eligibility documents of new employees to make sure they are legal to work in the United States, and protect my employees from discrimination and harassment.

In the 24 years I have been practicing law, the employment laws have changed dramatically. When I started practicing, the Family and Medical Leave Act, the Americans with Disabilities Act, the Fair Pay Act, and many other laws and regulations didn’t even exist. Sexual harassment claims were almost unheard of before the Clarence Thomas/Anita Hill fiasco in 1991. Times have changed and employers have to change with them. But no one expects companies to stay up to date on every shift in policy in the employment law arena. That’s my job and the job of thousands of other lawyers across the country. Trust us to help you as an employer adapt to this ever-changing area of the law.

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