YOU CAN PAY ME NOW . . .

If you are my age or a little older you may remember a series of TV commercials that used the tag line “You can pay me now or you can pay me later.” I think the ads were for an oil filter for your car. The message in the ads was that you can spend a little money on a new oil filter now or spend a lot of money on new engine later. Must be a lot of people were deciding to forego oil filters.  Funny how things stick in your mind even after all these years.

Why, may you ask, am I mentioning an ancient TV ad? First of all, because I am ancient. Second, and more importantly, because it seems applicable to something I ran across over the New Year Holiday. You see, I had 4 days at home with my wife and teenage kids. After about three days of me at home my wife and kids had clearly had enough “dad time” to last them the rest of 2010.  So, taking the hint, I retreated to a corner with my computer. Being the modern computer-age guy that I am, I have joined several social networking sites over the last year like Facebook (to keep an eye on my kids), LinkedIn (as a business tool) and Twitter (because I like to say I “tweet”), and I thought I would spend some time looking them over. The one that really drew my attention was LinkedIn, probably because it is the one that I have spent the least time on. So, on LinkedIn, in addition to connecting with business contacts, you can join “Groups”. LinkedIn has a lot of great groups that I bet are very valuable resources. As a matter of fact, I am a member of several of these groups, like one called MSU Alumni Association. These things are great—lots of great discussions with lots of great ideas. There is also a bunch of stuff for our HR friends. Again many great groups, some of which I belong to, with many great discussions about benchmarking and best practices and lots of other HR buzz words. What could be better? Answers a few key strokes away. Ask a question and get access to not one answer, but lots of answers. How great is that?!

Not so fast my friends. I also noticed something that is troubling. Let’s face it, if it wasn’t troubling I wouldn’t be writing about it. Many HR folks were asking legal questions about things like the applicability of the FMLA to certain situations and how the FLSA applied to this employee or what do we do about the ADA with still another employee. And sometimes these HR folks were getting answers from other HR folks and sometimes those answers . . . well, they were just flat wrong.

Some people, I am sure, are asking these questions online because the first thing they think of when they have a question is to ask it on one of these sites. That’s how younger people think. Someone thinks, “Oh, I have a question. Why should I ask the guy down the hall when I can ask 10,000 “friends” at once?”  But some do this simply because they don’t want to spend the money on a lawyer. That however is not the pay me now or pay me later part. You see, the reason you are asking the question makes no difference. It doesn’t really matter if you are asking because you lean that way or because you want to save a couple of bucks. What does matter is the kind of question you are asking. There is nothing wrong with being frugal or asking all 10,000 of your closest friends what they think if you are asking about best practices. So what if you really end up with only the second best practice.

But when you are asking about how the law works, especially how the law works in a specific situation, well that is where my trip down memory lane comes in.  First of all, lawyers are not the ones answering these questions, even the questions about the law. Now I know what you are thinking. . . . that’s because lawyers don’t like to give things away for free. Well, that is only partly true.  After all, I do this blog and you don’t pay for that. But then again, this blog is not “legal advice.” (I even have a disclaimer on the blog saying it isn’t legal advice. Click the “About” tab above and you can see it.) And it is also not true that lawyers aren’t answering these questions because they aren’t in the group. I’m a member of many of these groups.

The real reason we don’t answer these questions is because the law and its application is very fact specific.  You see, we need the whole story before we can give you real advice. And you just can’t get the whole story from a question posted on a social networking site. We are going to have questions too. And the questions matter. But none of the non-lawyers who are answering the questions seem to know that. If you take their advice and it is wrong, you don’t just have the second best solution, you have “liability” which can lead to “damages” which you must defend by paying a lawyer “legal fees.”  All of which are nice legal words that mean you can pay me later.

One other thing to keep in mind. When you talk to your lawyer about the application of the law to a particular situation, that conversation is generally privileged and you don’t have to share it with anyone, not even the person suing you. But when you talk to your lawyer, or anyone else over a social networking site that can be viewed by lots and lots of other people, that is NOT a privileged conversation and you get to share that with lots and lots of people, including the lawyer representing the guy suing you. He is going to like that.

Yes, calling a lawyer does cost money. But you see, paying a lawyer to try to help KEEP YOU OUT OF TROUBLE is a whole bunch cheaper than paying one to GET YOU OUT OF TROUBLE. So, “you can pay me now or you can pay me later.”  It is up to you.