Employment consultants: friend or foe?

written by attorneys with the West Virginia law firm of Steptoe & Johnson PLLC

As a result of sexual harassment litigation, a new consulting cottage industry has developed. Most of these consultants have no law degrees and little, if any, legal training. Those that have a law degree usually specifically disclaim any attorney-client relationship and maintain that the services they provide do not entail the practice of law.

Nonetheless, these consultants market themselves as "experts" in the areas of sexual harassment investigations, employee handbooks, and a myriad of other employment-related issues. Most attract the interests of smaller businesses because their fees are lower than those of an employment lawyer. Some of the consultants are quite good. Unfortunately, not all are.

Danger ahead

Some of the dangers associated with consultants are obvious. First, if the consultant gives you improper advice that you rely on when firing an employee, your company could be facing a wrongful discharge suit. If he improperly trains your supervisors how to address sexual harassment complaints, your company may be unable to successfully defend the claim with the certain affirmative defenses available in these cases.

Even worse, when the situation rises to the level of litigation, the consultant you chose is most likely going to be a witness. The way he presents himself at deposition, the way he responds to heavy cross-examination, and the knowledge he has or doesn't have can and will have an impact on your company's credibility at trial. Therefore, it is imperative that you choose your consultants wisely.

Choose carefully

First, you may wish to consider whether to retain a consultant or take the safer route and retain an employment attorney. This is a question of economics and will be left up to each company to resolve based on its budgeting constraints. Assuming you move forward with the decision to hire a consultant, you should spend just as much time -- if not more -- in selecting a consultant as you would in hiring your own employees. That means reference checks and interviews.

Here are some things to keep in mind when interviewing a consultant. Quiz her about the basic legal principles in the area with which you are concerned. Take sexual harassment, for example. The consulting expert should be able to rattle off the top of her head the four elements of a hostile work environment claim: (1) unwelcome conduct (2) based on gender (3) that is so severe and pervasive as to constitute a change in the terms or conditions of employment and (4) that is attributable to the employer. If she can't, then she is no "expert" at all, and your interests will be better protected elsewhere.

Ask what consulting services have been provided in the past and in which states. While state law governing the employer- employee relationship is largely modeled after federal law, there are some minor, but important, differences. For example, employers in West Virginia routinely run afoul of a unique provision in the West Virginia Code when they fire employees who have been out on workers' compensation leave beyond a certain number of days. Thus, national experience is good, but experience at home is also important.

Second, pay attention to how the expert explains these principles and how he responds to your questions. Does he explain things so that someone with no HR training can easily understand? Does he look and sound professional? These are all things that counsel and jurors will be paying attention to when your consultant testifies and, it is hoped, convincingly explains why the correct course of action was taken.

Ask for a resume, and check the consultant's references. What training has she had that makes her qualified to be an "expert" on employment issues? How has her advice been received in the past? How many times has she been deposed? How many times has she been involved in litigation because of the advice provided? Of those cases, how many were tried to a jury? How many of those were victories?

Call your friends in the HR department at other companies. Have they heard of this consultant? Check with your labor and employment attorney to see if he or she has come across the consultant in any cases.

Bottom line

As you can see, a variety of matters need to be discussed and reviewed before retaining a consultant. Great care must be given to ensure that (1) you are receiving competent and accurate advice and (2) if and when litigation comes, the consultant is going to be able to protect your interests by making a good witness.

Larry J. Rector, attorney with Steptoe & Johnson PLLC, concentrates his practice on employment discrimination, wrongful discharge, industrial injuries, and mine safety and health.
E-mail: rectorlj@steptoe-johnson.com

Larry is editor of the West Virginia Employment Law Letter.