Legal Advice vs. Non-Legal Advice HR Guidance

Does It Really Matter?

The practice of law, giving advice on specific facts concerning the law, comes with numerous protections, but two are imperative for your business:

• Attorney-Client privilege
• Insurance protection for “malpractice”

Neither protection comes with non-legal solutions.

HR “experts” and certified SHRM or HRCI employees in consulting firms may have completed the required hours, but legal advice can only be given to businesses by licensed attorneys in a law firm, and not by lawyers in a corporation or PEO. This is not an opinion, but national and state bar association rules.

So, What is Actual Legal Advice?

Legal advice forms an agreement between an attorney and their client based on a particular legal matter the client is experiencing. It has the following characteristics:

• Requires legal knowledge, skill, education and judgement
• Applies specific law to a particular set of circumstances
• Affects someone’s legal rights or responsibilities
• Creates rights and responsibilities in the advice-giver

Unlike legal information, legal advice proposes a specific course of action a client should take. For instance:

• Telling someone what to do (legal advice)
• Telling them how to do it (legal information)

Legal advice questions may include:

• Can I fire an employee with a disability?
• How does this new leave law apply to my business?
• How can I recover a wage overpayment to an employee?

Examples of legal advice would include:

• Advising on a cause of action based on the terms of an employment contract
• Drafting or completing legal documents/agreements that affect the legal rights of an employer
• Recommending next steps based on an applicant’s background check results

Does It Really Matter with My Day To Day Business?

Only attorneys can provide information or prepare the documents mentioned above for an employer’s specific situation for the employer to be “protected” and being able to seek recourse against the drafter or advisor of that legal information.

Most businesses think their Employers Practice Liability Insurance (EPLI) protects them. This insurance covers losses (that exceed a substantial deductible) only in a lawsuit for claims specific to harassment, discrimination, and wrongful termination, and sometimes wage and hour depending on the insurance company.

EPLI insurance does not cover other common but critical employment issues that are frequent pitfalls like a legally drafted handbook, FMLA & ADA legal questions, background checks (what can be used, what waiver must be signed, what an employer must provide if they find something in the check) and that’s just naming a few.

So, the answer is an emphatic yes, legal advice really does matter for the success of your business. And you don’t have to risk your business with the “good enoughs”, HR “experts”, or go without legal advice because traditional law firms are too expensive.

myHRcounsel provides business owners with unlimited, on-demand HR legal advice from employment attorneys for an affordable subscription. HR Legal Advice you can rely on.