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HR Professionals Who Step Over the Line: Are You Unwittingly “Practicing Law”?

By July 20, 2017November 28th, 2018Employment Law

HR Professionals Who Step Over the LineMarathon has always counseled its clients that the best way to handle legal issues relating to employment-related activities is to work with a labor attorney. When HR professionals make judgment calls about, or engage in activities relating to, the legal aspects of a personnel issue, they run the risk of taking inappropriate action that could potentially put themselves and their employers in jeopardy.

Some of these activities can seem very rational. Consider, for example, the case of Bank of Fayetteville NA v. Dep’t of Workforce Services (2016). Here, the Arkansas Court of Appeals dismissed a bank’s appeal regarding a negative unemployment benefits determination because the executive vice president of the bank, who did not have a license to practice law, signed the appeal petition. Although the act may have been done unwittingly, the employee technically engaged in the unauthorized practice of law.

The Society for Human Resource Management (SHRM) has been arguing since at least 2002 to exclude common, reasonable HR activities from consideration as “unlawful practice of law.” Former SHRM president and CEO Susan Meisinger, J.D., SHRM-SCP, criticized the American Bar Association for its suggested definition, noting, “HR professionals represent employers before countless administrative bodies,…regularly represent employers in arbitration and mediation proceedings, and negotiate legal agreements, including offer letters, termination packages and independent contractor agreements.” The ABA withdrew its proposal from consideration, leaving the states to define the laws in ways that often do not favor HR professionals.

The unlawful practice of law, defined differently from state to state, can result in misdemeanors, criminal prosecution and the invalidation of any decisions or actions taken by the person who engaged in the activity, even if they did it unwittingly. We urge organizations to heed our advice and avoid any activities or decisions that in any other industry would be left to an attorney.

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