 |
 |
 |
 |
 |
 |
 |
 |
 |
From Chapter 5: The Problem with Conventional Wisdom
Let’s assume that, in the stories above, these policies of conventional legal wisdom were in effect. Would they have prevented the problems? Of course not. The policies, mostly designed by lawyers, are for one purpose: to provide the strongest legal defense in court if an employee or ex-employee sues.
Lawyers operate from a position of prevention and compliance. Lawyers, like other professionals, respond to their clients’ needs.
Client asks, “How can I avoid lawsuits from my employees?”
Lawyer responds, “We can’t stop your employees from suing, but we can help you put up a strong defense.”
Lawyers study the law to find out what conduct is permissible and what is not. By looking at past case histories and current statutes, they learn what courtroom defenses might be most effective. Then they say, “If you put these policies in place, you will have a better chance of winning employment lawsuits.” Lawyers don’t guarantee anything. In the defense of lawyers, however, the legal system limits their role to one of risk management.
This is an intelligent defensive strategy in a litigious world. However, the fact that conflicts over sex, politics, and religion continue to arise in the workplace illustrates that compliance with the law does not guarantee safe conduct.
To make matters worse, the law does not respond well to ambiguous, new, or unusual circumstances. Unfortunately, the law is like riding a bicycle looking backwards. Lawyers have a difficult time advising clients about sex, politics and religion outside of the context of statutes or case law. Unless the conflict arises from a clear precedent from the past, lawyers revert to talking about probabilities. Conflict arising from ambiguous employment circumstances, and most of them do, results in ambiguous legal advice.
Although there are some law and economic scholars who would disagree, employment law is generally not concerned with business productivity, efficiency, or common sense. Consequently, the conventional wisdom surrounding defensive policies and prevention dependably add to the cost of business, are impractical, time-consuming, and are a pain to administer. They certainly do not offer the assurances of security that we all hope for from our legal counsel.