6 Points in Time When an Employer Needs an Attorney

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No business owner starts out with the idea that he's going to be the subject of an employment lawsuit. After all, very few owners have the intention of breaking any laws. (Granted, there are some people who do have the intention of breaking the law, but they aren't the type who will research best practices on the internet.)

The problem is, that employment law is complex. Crazily complex, actually. Sometimes, you need an employment law attorney, but you don't want to waste your money on high legal fees.

Here's when you need to call an attorney.

To write your handbook. Sure, you can write it yourself with policies that are unique to your company, but you need to have it checked over by an attorney. Why? Because your handbook can inadvertently create contracts with your employees, or have policies that violate the law.

You need to have an employment lawyer (not the same lawyer that helped you set up your corporation) check to make sure everything is good. And you need to have that looked at from time to time - especially when you hit 15 employees (laws like the Americans with Disabilities Act (ADA) kick in at 15) and 50 employees (when more laws apply to your business, especially the Family Medical Leave Act).

When any government agency shows up at your doorstep. You may find a representative from the EEOC or the Department of Labor standing in your front office and asking to see your records.

Your job is to say, “Please take a seat while I call my attorney.”

Then call your attorney immediately and do exactly what your attorney tells you to do. Don't ever think, “I have nothing to hide.” You may not, but that does not mean you want to let the EEOC go through your employee personnel files.

Call that attorney.

When an employee complains of illegal harassment. Sometimes what happened is so obviously wrong that it's easy to fix. If a manager told an employee, “You have to have sex with me, or I'll fire you,” that's pretty easy to handle. You fire the manager.

But, most harassment complaints aren't so straightforward. A lot of it is he said/she said and sometimes a joke is just a joke and sometimes it's evidence of ongoing discrimination. Conduct your investigation and double check with your lawyer to make sure you're in compliance with the law and conducting the investigation correctly.

When you're served with legal papers. Do not, under any circumstances think you can handle it on your own. Sure, you may be 100% correct, but you don't want to make a mistake on the legal side of things, meaning you'll lose the case over a technicality.

Don't respond. Don't think about it. Don't talk to the employee (or former employee) to clear up the “misunderstanding.” Call your attorney right away.

When you need to fire an employee. In all states but Montana, employment is “at-will” which means you can fire an employee whenever you want to, as long as you aren't doing it for an illegal reason.

So, you can fire an employee for coming in late three times in a row, but not for getting pregnant.

However, there are so many things to consider and so many possible legal violations, you want to double check with your attorney before firing an employee. For instance, if you fire Bill for coming in late three times in a row, you may think that's a no-brainer.

But, what if Molly's boss didn't fire her when she came in late three times in a row? Now, Bill can claim gender discrimination - you're holding him to a different standard than Molly. Always double check. Past practices matter.

When you need to lay people off. Like a firing, this should be straightforward, but you want to make sure you're in compliance with all laws. For example, the WARN Act requires certain actions from an employer with which you'll want to comply.

 

If you're offering severance pay, you'll want to have your employees sign a General Release in order to receive that severance. In this document, your employee gives up the right to sue for several things, or agrees to a non-compete or non-disparagement clauses in exchange for severance.

Your attorney will need to write the release for you. You can tell her what you want to include, but don't be surprised if your attorney tells you that you can't do everything you want to do.

You may think think that it's too expensive to pay an attorney to advise you about issues that you can handle yourself. Attorneys are expensive, but losing lawsuits can cost even more.

Establish your relationship with an employment attorney early on, and the relationship and the attorney's ongoing knowledge of your business, corporate culture, and management philosophy will benefit your business in the long run.