Selecting and Using outside Labor and Employment Counsel

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Some employers wait until they are faced with a discrimination charge before they begin the task of selecting outside labor and employment counsel for their defense. Unfortunately, taking on such a challenge as the deadline for filing position papers looms is not usually in the best interest of the organization. The time to begin thinking about hiring an out-of-house attorney should be long before a charge of discrimination is received. Employers are better served when they take time before the frenzy of litigation is upon them to evaluate their internal culture, assess their need for counsel, evaluate their internal expertise, and conduct an interview and selection process that allows for careful evaluation of candidate firms.

The human resource professional responsible for making a recommendation about which attorney or law firm to use should carefully select counsel that will serve as an ally to the HR department and bolster its credibility. The benefits of such a relationship can be considerable. For example, the HR department may be faced, after a protracted and difficult sexual harassment investigation, with having to deliver unpleasant news and recommendations to senior executives who are unaware of the nuances of this problematic area. Using outside counsel to assist in delivering these messages can help the human resource professional avoid becoming a victim of the "shoot the messenger" syndrome.

The involvement of the HR professional in the selection procedure, which generally should be treated like a bidding process, is critical. He or she will be able to assess internal management expertise and assist in determining the services that outside counsel will provide. In addition, the HR professional will be knowledgeable about the business environment facing the organization and will be aware of the internal employee relations climate of the organization. He …