South Carolina Lawyer
SC Lawyer, March 2008, #1.
Lawyers As Employers: Hiring, Firing and Everything in Between
South Carolina LawyerMarch 2008Lawyers As Employers: Hiring, Firing and Everything in BetweenBy Molly HughesLawyers are focused on the demands of practicing law and running their practices. Often, they do not have time to dedicate to managing their employees. And, in fact, some lawyers may not see themselves as employers. However, the success of any business, including law firms, is tied directly to its employees. Competent and professional employees are critical to a firm's ability to produce quality work and keep good clients.
It stands to reason, then, that a law firm would commit sufficient resources to addressing personnel decisions. Recent employment litigation involving law firms, however, seems to suggest otherwise. These cases serve as a stern reminder that the employment laws apply equally to law firms as to any other employer. Law firms are not immune from employment laws. And, law firms, like all employers, can make good and bad employment decisions. The wrongful hiring, firing or disciplining of an employee can have both significant economic consequences for a firm and a negative impact on employee morale.
While not for purposes of giving specific legal advice, this article explores some common pitfalls law firms may encounter with personnel decisions and generally illustrates some ways that firms can develop practices for making employment decisions and avoiding disruptive and costly litigation.
Law firm employment decisions
There are a number of employment decisions a law firm may face each day and a number of legal and practical considerations may impact each one. As to the legal issues, keeping abreast of all the employment laws and any changes to them can be a full-time job. Many firms delegate this responsibility to individuals tasked with other duties -an office manager, for example, or someone else-and do not provide them with human resources training. Furthermore, some law firms with a dedicated human resources manager rely on select attorneys to serve on recruiting committees to hire associates and paralegals, without any guidance on the permissible and impermissible aspects of interviewing. This can be a recipe for disaster.
Another mistake some firms may make is to assume that they are too small for any "significant" employment laws to apply to them. However, size does not matter. Having just one employee subjects a firm to numerous federal, state and local employment laws. More importantly, as they grow, law firms-like all businesses-become subject to even more employment laws.
For example, when a law firm reaches 15 employees, it will generally be considered an "employer" under the terms of and subject to the Americans with Disabilities Act (ADA), 42 U.S.C. § 12111 et seq., and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e. At 20 employees, the firm is covered by the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. §§ 621-634.
Importantly, law firms should not summarily conclude they do not have sufficient employees for these federal employment laws to apply. For purposes of the ADA, Title VII and the ADEA, employees are counted first by including the number of people on the payroll and then adding any other individuals who have an employment relationship with the firm, such as temporary or other staffing firm workers. In any case, the law firm must have the requisite number of employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year. 42 U.S.C. § 2000e(b); 29 U.S.C. § 621. The weeks do not have to be consecutive, though they must fall within a single calendar year. Rogers v. Sugar Tree Prods., 7 F.3d 577 (7th Cir. 1993), abrogated by Papa v. Katy Indus., 166F.3d 937 (1999) on other grounds. Part-time employees are included as long as they worked on each working day of the week being counted.
Finally, law firms should not assume that employment laws do not apply to partners or...