Lessons from Small Business to Small Law Firm - - Hiring and Firing

A small business owner lamented The High Cost of Bad Hiring a few weeks ago in an article in the New York Times "You're the Boss" series.   Small law firms are also small businesses.  The solo practitioner or small firm partner is also a "boss."  

 Lawyers tend to be notoriously poor managers.  Don't interpret that last comment as entirely negative.  Lawyers simply prefer to practice law, not interviewing new hires, training office staff or giving performance feedback.  This same tendency might be observable among other professionals and even in some businesses where the principals would prefer to focus on their particular expertise (for example design, cooking or merchandising) rather than manage their business.

 There are exceptions in the legal profession.  Some excellent managers, even CEO's of substantial businesses, are legally trained.  But, let's focus on the more general case.  Most of us can benefit by thinking through the lessons offered by The New York Times'  once-frustrated-but-now-enlightened business owner: 

1. It's worth taking the extra time to thoroughly screen candidates to find the "right" one;

2. Training is essential.  So is supervision.  As our now-enlightened owner put it: "I was not delegating.  I was relegating.

3. Tenacity is important.  It may take a while and multiple tries to find the "right" person for the job.


I would add that effective hiring is especially critical for the small law firm.  There is simply no one around to pick up the slack for a bad hire.   By the way, a "bad" hire can mean a bad hiring decision or bad supervision by the manager or partner, not just an underperforming employee.

 My bottom line: if staff is necessary for the delivery of professional services, legal or otherwise, a well-balanced approach with due attention to managerial issues, such as hiring, can only benefit the practice.





Brown Bag Lunch & Employment Law at Ridgefield Chamber of Commerce

Partner Beverley Rogers led a lively discussion of Employment Law, primarily hiring practices, at the “Brown Bag Lunch” sponsored by the Ridgefield, CT Chamber of Commerce on Thursday, February 21. Our other partner, Angelo Tartaro, also attended and provided light assistance. The questions raised by attendees highlight issues of concern to the Ridgefield business organizations.

Our goal is to keep our clients and readers out of litigation, if possible. With that in mind, in leading the discussion Beverley did not dwell on technical distinctions and defenses such as the varying definitions of “employer” and “employee” under federal and state statutes and caselaw. Rather, the focus, as in this Blog, was on “best or at least better” practices of good management to avoid tangles of a legal dispute over hiring and other employment practices.

With that in mind, Beverley presented and discussed a series of questions that may and may not be asked at an employment interview. For example, an interviewer is asking for trouble when questions involve childcare arrangements but not whether a frequent travel schedule will be acceptable to the applicant. An interviewer should never ask whether an applicant has ever been arrested but it is perfectly acceptable to ask whether the applicant was ever convicted of a crime. Questions relating to sexual preference, religious practices, national origin (such as the derivation of your last name) have not place. Questions relating to whether the applicant can perform the essential functions of the position, with or without a reasonable accommodation, are acceptable. Of course, the interviewer should not suggest that a reasonable accommodation might be necessary; the applicant must request it. The examples discussed are too numerous to review here in detail; to download her handout, click here.

The attendees were very interested in how to handle a situation where the applicant volunteers information about a “forbidden subject.” The interviewer should state that the information is not appropriate to discuss any further and return the discussion to the essential functions of the position. And, the interviewer’s notes should not reflect any information about the inappropriate subject matter.

Beverley advised that notes of the interview should be kept separate from the job application. An attendee volunteered a humorous anecdote that reinforced the point. It seems the organization’s Human Resources auditors wanted to know why a notation of “W” was made an a job application. The implication was that the notation meant “White” or “Woman.” In fact, it denoted the “Western” division of the hiring organization. The better practice is not to have any notations that could be misinterpreted for a discriminatory purpose. Beverley presented and discussed a sample employment application from ____________________, which can be downloaded by clicking here.

Moving on from employment to other practices, Beverley explained that Connecticut and New York are still “employment at will” states in which an employee can be terminated for any reason but that protected classes of employees cannot be terminated for a discriminatory reason or under other circumstances covered by specific statutes or for specific conduct that is actionable under federal or state common law. An example of the latter was illustrated by one of our firm’s recent cases in which a client received a favorable settlement after suing an employer for defamation because he was wrongfully accused of stealing without an investigation.

In that case, an investigation was promised by the Employee Manual but the management largely ignored its manual. Attendees were very interested in Employee Manuals and the nuances of what they should or should not include as policies. That discussion was too extensive for this article but two general points stand out: (1) the better practice is to issue a manual and obtained a signed receipt when first issued and when updated; and (2) the manual does not do much good if actual practices deviate from those promised in the manual.

We may not be the most objective observers but we came away with the impression that the attendees found the event to be enjoyable, informative and topical.