Deterrence

Abstract forthcomin

Legally Defensible vs. Organizationally Sensible: Avoiding Legal-Centric Employment Decision Making

Managers and human resource professionals express grave concern about the increasing influence that the law and lawyers are having on their ability to manage employees effectively. Blame is typically placed on growing governmental regulation of the employment relationship, a “litigation mentality” among workers, and overly aggressive lawyers pursuing selfish interests. Much less common, however, is attention focused on the role that organizational decision makers play in contributing to the perceived problem. This article is intended to help address that limitation by alerting managers to the likelihood that they are unnecessarily contributing to the impact of legal considerations on the management of employees as a result of “legal-centric decision making”, and by providing information and guidance that will assist them in formulating better informed, more strategic responses to employment issues that have potential legal implications. Keys to implementing the strategic approach are identified and discussed, and the approach is illustrated by applying it to a decision that American employers continue to confront: how to respond to the eroding employment at-will doctrine. The analysis strongly suggests that the extent of the law’s negative influence on the management of employees can be moderated significantly if organizational decision makers recognize their contribution to “the problem”, focus on what is organizationally sensible rather than what is perceived to be legally defensible, and adopt a more strategic (less legal-centric) approach to the challenges posed by employment decisions that raise legal concerns