Tackling People Problems with Amy Blaisdell
Amy Blaisdell has more than 20 years of experience advising public, private, and non-profit organizations on compliance with employment, employee benefits, and labor laws. A partner in the Labor and Employment Practice Group at Greensfelder, Hemker & Gale, P.C., she has successfully argued in front of the U.S. Supreme Court, served on the firm’s Board of Directors, and authored many publications and presentations on labor and employment law. In 2021, Amy was selected by her peers as Lawyer-of-the Year in Best Lawyers in America for advising employers in human resources and employment law matters.
This post features a written interview with Amy, who provided her answers in response to questions from Brent Beshore.
All businesses are just collections of people, and often those people have challenges. What are the most common issues that you see amongst your clients?
The most common issue that I see among clients is the unwillingness of leaders to provide constructive feedback. The desire to avoid conflict creates a situation where the employee may not be aware of performance deficits. Or, even if the employee is aware, he or she may later convincingly claim lack of awareness. And, when the challenges get to a point where separation would be logical in the timeline, it is often not legally advisable or supportable at that point based on the absence of any formal feedback or discipline.
Juries want to see documentation reflecting that an employee has been treated fairly. They want to see that an employee was told about performance deficiencies, given an opportunity to improve, and then separated if they failed to meet that expectation. When that process doesn’t occur, it is easy for former employees to bring allegations that the real reason they were separated wasn’t their performance but instead was some unlawful reason like discrimination.
Are there any warning signs that you have with what I’ll call “HR debt,” or the bubbling of issues that perhaps haven’t yet blown up, but could at any moment?
The complexities surrounding remote work continue to bubble beneath the surface and keep me up at night. Most employers in the country flipped a switch and adopted at least a partial remote work model back in 2020 with little to no planning when the COVID-19 pandemic began. As we emerged (somewhat) from the first pandemic of the last 100 years, many employers decided to stay with their remote work model, others adopted a hybrid approach, and others have tried (largely unsuccessfully) to bring teams back to the office.
For those that have retained remote work, my belief is that very few have done a deep dive into the federal and state laws that apply to their businesses in all of the states and municipalities from which employees may be working. In the labor and employment context, remote work brings into play overlapping federal and state laws governing wage and hour practices, discrimination/harassment laws, state leave laws, workers’ compensation laws, OHSA/state plan compliance, unemployment insurance, and business expense laws to name a few. But, in addition to employment laws there are corporate taxation, employee taxation, and business registration considerations as well. These issues could blow up at any moment for any employer with a remote work model either through agency investigations or individual or class claims of legal violations.
What are the most common misconceptions or mistakes that SMB owners and operators make when it comes to HR policies and procedures?
SMB owners and operators frequently perceive HR policies and procedures as something that can be lifted from the internet in order to save cost. That is not the case. An SMB needs the right amount of policies for the particular organization and needs to adopt rules and systems that the business can reasonably follow. They also don’t want to adopt policies or procedures that are derived from laws that may not apply to them because of size, location, or other considerations. Company documents are an organization’s first line of defense. Whenever a claim is filed, the agency, court, arbitrator, etc. is going to see your company documents long before they hear a word out of a witness’s mouth. If your policies are a mess or if you have taken action inconsistent with your policies, that puts the organization in a vulnerable position right out of the gate.
Unfortunately, letting go of underperforming team members is a common part of doing business. What advice would you give to an operator who needs to let someone go?
My advice is to implement a process, follow the process, and don’t unduly extend the process trying to salvage someone. Trying to throw an employee a lifeline for too long often backfires. Steps in the process should include:
Adopt a progressive discipline policy that is not lockstep and permits the organization to skip steps in the process when warranted.
Train leaders to deliver constructive feedback, including how to deal with situations where employees inject other issues such as medical issues into the discussion.
Train leaders to document the constructive feedback that they deliver.
Before separating, take a look at the performance documentation and confirm that it accurately and fully reflects the efforts taken to try to rehabilitate the employee, as memory of the facts fades over time and decision makers come and go.
Deliver the decision to the employee with a witness advising him/her that it will be the employee’s last day with the organization; don’t engage in a lengthy discussion.
Immediately turn off all access to company email and other systems.
On the opposite end of the spectrum, we see a lot of SMBs who don’t use employment agreements or who have ones that are hastily thrown together without much meat. What are the key provisions to include in employment agreements and are they really necessary?
First, you really only need an employment agreement if the executive that you are recruiting insists upon having one. As the employer, you prefer as much flexibility as possible in the employment at will relationship, and the issues that you care about can be addressed in more limited agreements such as Confidentiality and Restrictive Covenant Agreements.
If you do have employees sign employment agreements that require “cause” for termination, make sure the “cause” section is broad enough. This is another area where we see companies pick up internet definitions that are sloppy or not thoughtful, and this can really tie an organization’s hands when separating an employee becomes necessary.
Something terrible happens and someone gets injured on the job. What are best practices from an HR perspective?
First, respond to the injury by immediately contacting medical personnel, 911, etc., as appropriate.
Second, determine whether the individual is an employee or an independent contractor, because different rules apply.
Third, determine whether the injury occurred in a state that OSHA regulates or in which OSHA has relinquished control to the state.
Fourth, immediately ascertain your reporting obligations to OSHA or the state and the applicable deadlines and comply with them.
Finally, if OHSA or a state agency is coming onsite following an injury, be prepared as to what information they will need to review and with whom they will need to meet in advance. Then, assemble this information and these witnesses and discuss the visit with your legal advisor in advance so you are prepared and can avoid pitfalls.
How should a growing business think about bringing on full-time HR staff? What are the metrics or leading indicators you’d watch?
In my opinion, small businesses are better served by leveraging outside resources while in growth and stabilizing phases, as third parties should have a mix of HR personnel at varying levels to appropriately service the business. You don’t want to hire a junior HR leader who has no internal mentorship and lay the groundwork for them to make costly HR errors that impact the bottomline. You learn how to deal with complex HR issues through experience. A good HR leader must be able to spot issues, identify legal concerns, and come up with creative solutions that are both legally compliant and that drive the organization’s business forward. That skill level takes time to develop.
Then, when the business is at a point to hire a qualified HR leader, there is value in having a dedicated person who understands your business goals and can provide HR advice that helps meet these goals by helping you lawfully navigate the complex issues surrounding hiring and managing personnel in a way that supports the business.
How have you seen the field of HR law change over the past 5 years? What implications have those changes had for owners and operators?
The regulation of employer practices has expanded such that it is nearly impossible for the largest employers to keep pace with it. At the same time, the workplace has become much more virtual over the last three years, as discussed above. This means that, in addition to complying with applicable federal laws, employers have to monitor and track the laws of all the states where they have employees working, including remote locations.
For example, in the last five years, many states have expanded their anti-discrimination laws to apply if you have even one employee working in the state, adopted business expense laws requiring employers to pay for a variety of work-related expenses, expanded the scope of protected classes of individuals to include same-sex, gender identity, and transgender protections, and adopted laws protecting employee privacy and off-duty conduct (including on social media sites).
Complicating this further is that there are many, many areas in which both federal and state laws cover the same topic. And, in the employment law context, the most employee-protective law applies. The reality of this is that it is very, very difficult for a small employer to be fully legally compliant. This is especially true if a company has employees working in multiple locations. And, we have found that smaller employers may be even more likely than large employers to have employees sprinkled all over the map because offering that flexibility enhances the talent pool. But owners and operators must ensure that they have the ability to comply with the myriad state and federal laws applicable to all of the states and municipalities in which they operate.
One of the shocks I had when I experienced various HR-related issues was the expense associated. Could you give some examples of common issues and how operators should think about budgeting for the associated expenses?
Common issues that arise will depend largely on the business and its location. Legal expenses and HR issues that a California employer has to navigate will be vastly different from the legal expenses and HR issues that a Florida employer should expect to incur. Legal expenses will also be driven by the nature of the industry. For example, a sales or service organization will have much different HR issues than a manufacturing business. So, the budgeting process has to be done with an eye for where the business is located, where its employees are located, how many employees the business has, and what industry the business is in. Based on those factors, you can make a budgetary decision that is reasonably informed.
If you could change one thing about how the legal system operates related to HR issues, what would it be?
I would make federal law preempt state law where there is dual regulation, similar to the way that the Employee Retirement Income Security Act operates. It is incredibly cumbersome for employers to have to stay abreast of which laws are most favorable to employees and follow those legal standards.
How should owners and operators find good counsel for HR-related matters? What would you advise them to look for and what pitfalls should they avoid?
Look for someone who wants to partner with you, to invest in learning your businesses, and to help you navigate the laws while being mindful of your need to run profitable businesses. Many years ago, I worked on a multi-state class action. The client had another law firm involved in the defense because of their deep knowledge of a particular state law. One day at a meeting, I asked the client whether we needed to conference in the other law firm on an issue that was within their wheelhouse. The client replied, “No. That lawyer always tells me what I can’t do and I need to know what we can do.” I was struck by this reaction, and I have always tried to be mindful of helping my clients comply with the law in a way that also helps them drive forward their business objectives and achieve corporate success.
How do you know you’ve done a good job for a client, and how should operators evaluate the quality of their HR advice?
The answer to this question reminds me of a conversation that my husband, our three kids, and I had over the holidays. On New Year’s Day, we were sitting at the dinner table talking about resolutions, and we told our youngest son that his resolution should be stopping talking back and not always saying, “I know (explanation)” whenever anyone tells him to do something. He logically replied, “Well when I know something, I just know it. I can’t unknow something that I know. There’s nothing I can do about it.” This statement gave us all a good laugh, but it is true at the core and applicable to client service. Although I would never be as brazen as my son in telling clients that I know we have done a good job for them, I know that to be the case when it is true based on my deep client service experience, knowledge of the law, and knowledge of possible outcomes.
Clients can evaluate the service they receive by asking themselves if their HR counsel cares about their business goals, understands the desired outcome, understands how the outcome impacts the bigger picture, and has done their best to get the client to the best possible position.
