Even though they have the same primary objective in mind — the welfare of the organization — employment lawyers and human resources professionals can approach the goal from very different angles. Sometimes, it can seem like they’re not even from the same species, let alone playing for the same team.
While it’s fine to let the lawyers be the lawyers, and you be the HR pro, sometimes it’s important for HR managers to think like an employment lawyer, says Adam Kokas, General Counsel, Chief Human Resources Officer and Corporate Secretary for Atlas Air Worldwide Holdings.
Atlas is a business-to-business airline with 2,200 employees and the largest fleet of 747 Boeing freighters in the world. In addition to moving cargo and freight, the company trains Air Force One pilots, and flies celebrities and military service people around the world. Heading HR for a global company with relatively few employees has given Kokas the opportunity to deal with some highly complex employment situations and regulatory considerations.
Kokas advises HR professionals to incorporate legal considerations into their decision-making when dealing with key issues:
Setting policy for conducting background checks
While most companies will perform a background check when hiring for an executive level position, fewer do so when promoting from within. Yet the intention of background checks is to protect the company and the brand from exposure to anything questionable that might show up in an employee’s personal or professional history. From an employment attorney’s perspective, background checks for internal promotions make sense to protect the brand, Kokas says.
HR managers should also keep in mind the regulatory environment when establishing policy for background checks. State law drives much of what a company can and can’t do regarding looking into an employee or candidate’s background. “There are lots of rules related to these things,” Kokas notes. “If in the normal course of business for doing background checks, you’re getting a red flag, the first thing you have to say to yourself is ‘What can I do legally? What’s appropriate as an HR professional getting this information, and how can I use this information so that I’m not putting the company in a bad position both in terms of a hire, but also in terms of potential liability in the future?’ ”
When terminating employees
“The Five O’Clock Club specifically advocates very strongly that you treat your departing employees with dignity,” Kokas says. “That’s a strong adage of Atlas. It’s a way to treat people as well when they’re leaving as you do when they’re coming on board, and we found that works to everyone’s advantage.”
Consider the value of offering severance — even in cases where an employee is fired for cause — as a means to secure a signature on a separation agreement. Keep such agreements simple and easy to read, he advises. Employees already stressed over losing their job will be less inclined to read a lengthy, complicated agreement, let alone sign it.
When hiring independent contractors and/or vendors
With just 2,200 employees and a global reach, Atlas works with a lot of contractors and vendors. Kokas says companies that rely on independent contractors for their regular business need to be mindful of the possibility that a court could decide those contractors are actually full-time employees of the company. He cites a recent action in California in which the courts ruled that Uber drivers are employees of the company.
“Be mindful of this from a legal perspective. Look at your list of contractors and vendors and think, ‘How will this be viewed?’ The Department of Labor and the IRS have been spending a lot of time, effort and resources on these kinds of investigations.” Companies that have evergreen contracts with vendors or contractors may find regulators view the relationship as full-time employment.
When expanding and operating outside the U.S.
“As you’re starting to expand and you’re starting to look at a global footprint, you need to be mindful of and think about the ramifications in terms of hiring people, benefits and things of that nature,” Kokas advises.
For example, “There is a concept of employment-at-will in certain countries and certain locations, but it’s not always the case,” he says. “I’ll use Chile as an example. If you have a workforce of eight employees … they can unionize. They can create their own small union and you’ll have to manage the relationship with the employees through the union.”