When Does HR Cross Over Into Law?

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Human resource departments in thousands of companies across the country are a hub of activity. Every day, human resource professionals are tasked with activities that are imperative to the success and well-being of the company they work for and their fellow employees. As an essential cog in the company machine the number of tasks and the scope of those functions can expand and morph daily. However, it is important to remember what HR should and should not be doing.

One issue that has recently arisen in human resource circles is the unlawful practicing of law. HR professionals representing a company in a legal capacity isn’t uncommon, especially as businesses try to slim down and streamline their processes. While there are many law-related tasks that HR professionals can adequately and effectively complete, there are many tasks that HR professionals are being tasked with that are truly out of their scope.

Are HR professionals Crossing the Line into Law?

What is construed as a legal proceeding varies from state to state, but by and large, court proceedings should be carried out by licensed attorneys. Some businesses have found themselves in less-than-ideal circumstances after tasking HR professionals with legal tasks outside of their scope of understanding. The legality of non-attorneys participating in legal proceedings also varies from state-to-state. For example, in Pennsylvania HR professionals can now take part in unemployment hearings, but such action is considered unlawful in Kentucky.

In some states, HR professionals may participate in the hearing, but may not participate in appeal proceedings, which is of higher stakes and more legally-intricate than simple interviews. At one time Pennsylvania outlawed non-attorneys from taking part in unemployment hearings but has since overturned that ruling, noting it was impractical to expect companies to hire attorneys for every unemployment hearing.

HR professionals may also be tasked with signing paperwork and court-related documents. The legality of such tasks also varies from state-to-state, and businesses should always be careful when dealing with legal proceedings when a licensed attorney is not present. In Arkansas, a petition for appeal was thrown out when it was discovered an HR professional had drafted and signed the petition rather than an attorney. The state found that the document was null and void, as the signature attached to it constituted the unlawful practice of law by a non-attorney.

What Should Businesses Do?

Human resource is an integral part of the business landscape. They are tasked with the most inner workings of the company and work diligently to ensure a business is running as efficiently as possible, and that all employee and employer needs are taken care of. While HR can be tasked with some routine legal forms and paperwork, it is important to remove legal proceedings and legal preparation from the scope of an HR professional’s job description.

In many cases, it is simply better to be safe than sorry. Unless a business owner has had an attorney explain the state laws and what an HR person can or can not do, it is best to leave all legal materials to an attorney; whether that is a full-time employee or legal counsel that is kept on retainer. By keeping an attorney in the loop, a business can save themselves a great deal of time, money and hassle. In addition, keeping an attorney present to deal with legally binding documents, frees the HR professional to carry out tasks that are far better suited to their skill set.

What Should an HR Professional be Tasked With?

HR professionals needn’t perform legal services in order to be considered valuable to a company. In fact, there are many job-related tasks that HR professionals should be performing instead of dealing with legal hearings and appeals. Daily tasks should include:

Meeting with management to identify needs

Reviewing resumes and identifying qualified leads

Interviewing potential talent

Processing paperwork

Oversee anti-discrimination and harassment policies

Field employee complaints and concerns

The Bottom Line

Human resource is a complex department that may appear to have their hand in every facet of business, but there are some places they just do not belong. To ensure you are adhering to your states legality, and keeping your HR professionals within the scope of their work.

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Cite this article: Lynch, N. (2017). When Does HR Cross Over Into Law? https://www.lynchlf.com/blog/when-does-hr-cross-over-into-law/


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