In-House Counsel

To Be A Good In-House Counsel, Be Prepared To Break The Law, Maybe

Sometimes, to do the right thing, you have to make a decision much hastier than you might normally be comfortable with doing so.

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There is no denying that the holidays can be a difficult time for some people.

From spending time with extended family to outlaying more money than you had planned to get that perfect gift for that special someone, they can be hard and stressful. And tragically for some, it may serve as the proverbial breaking point which may cause them to wish to inflict harm on themselves or others.

Unfortunately our organization was faced with one such instance over this most recent holiday season.

Late in the day on the Friday before the week of Christmas, a frazzled human resources employee burst into my office. An employee had just called in to report one of their coworkers made what they perceived to be a comment reflecting a suicidal thought as they left for the day. The human resources employee had contacted the employee’s supervisor and learned the individual had planned to take some additional time off around the holidays as well.

It was nearing 5:00 on a Friday. My in-house colleague who handles employment matters had already left for the day and our legal office was similarly nearly empty. Regardless, we needed to act.

I am not well versed in employment law, nor is patient and employee privacy something I regularly deal with. We have a whole team who works on those matters, and despite my best efforts to reach them, time was ticking and waiting for a return call was not something we could do.

As an attorney whose job it is to avoid risk for my organization, there were many questions I would have liked to have answered before taking action. From additional information on the nature of the threat, to the history of the employee, to the veracity of the tip, there were many additional data points that would have helped, but I knew neither time nor the skeleton crew of employees left would enable me to get any answers.

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Finally, after consulting with any of my fellow in-house counsels left that I could find, we decided to enlist the help of local law enforcement to conduct a wellness check on the employee. Thankfully they reported back the employee was indeed fine and, according to their assessment, was not a threat to themselves, but rather flippantly made the comment after a bad day at work.

While the solution we devised may have been a bit obvious, the speed at which we acted is a bit atypical of an organization our size which vets near every decision multiple times before acting.

But as in-house counsel, sometimes that is a choice you need to make.

Could our fast action have perhaps violated some sort of human resources policy or employee privacy protection? Could it lead to a complaint or lawsuit from the employee for our decision to send law enforcement to their home?

Maybe. But I will take that risk any day of the week versus the risk of inaction in the present fact pattern.

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By no means should you throw caution to the wind and act however you feel at a given moment, but even as the individual tasked with mitigating risk for your employer, sometimes you have to make a decision much hastier than you might normally be comfortable with doing so.

When scenarios such as this have an obvious answer and demand immediate action to stave off the potential for a much greater harm, get comfortable with taking a decisive action even if we were trained to do otherwise.

Stephen R. Williams is in-house counsel with a multi-facility hospital network in the Midwest. His column focuses on a little talked about area of the in-house life, management. You can reach Stephen at stephenwilliamsjd@gmail.com.

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