When you start or manage a business or run a Human Resources (HR) department, your first thought is probably not on hiring an employment law attorney. While you hope never to have the need to use their services, keeping such an attorney on retainer is a good idea for any firm that will employ workers. Some large firms may even have an employment attorney on staff.
The Complexity of Employment Law
No senior managers or professional HR staff start out with the idea that they're going to be the subject of an employment lawsuit. After all, very few managers have the intention of breaking any laws. 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. Other times, it is critical that you make the investment in an employment attorney.
Simple or Potentially Harmful Problems
The average HR employee has an ongoing dialog with an employment attorney for checking those everyday situations where your company needs to play it safe—and employee relations smart. These situations can include the introduction of a new policy, how to inform employees of a benefits change, and what are the latest trends in employment law.
In these everyday situations, managers and owners usually depend on HR to hold the conversation—if they decide to hold a conversation at all. That's okay in these everyday situations with employees.
However, not every legal situation is a common or everyday type of issue. Some have the potential to spiral out of control and potentially bring great harm to your organization.
Oversight of Your Employee Handbook
Sure, you can write the employee handbook yourself with policies that are unique to your company, but you need to have it checked over by an attorney. Your handbook can inadvertently create contracts with your employees, or have policies that violate the law.
You need to have an attorney specializing in employment law—probably not the same lawyer that helps you with corporation matters—check to make sure everything is good. Also, you need to have the handbook reviewed from time to time—especially when you hit 15 employees. Laws and regulations set 15 employees as the tipping point on the application of a ruling like the Americans with Disabilities Act (ADA).
When you hit 50 employees even more laws and regulations are applicable to your business, especially the Family Medical Leave Act (FMLA). You'll need an employment attorney to understand the implications of the laws.
Companies are available that specialize in writing handbooks, and if you go that route, make sure that an employment attorney who is licensed in your state reviews the completed handbook. Ideally, that person should be on staff, but if not, it's worth the money to hire a local employment attorney to give it the thumbs up.
Equal Employment and Labor Issues
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 employment attorney.”
Then call your employment 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.
Ideally, you will have a relationship with an employment attorney before the government agency shows up, but if not, still say, “Please take a seat while I call my attorney” and then find an attorney quickly.
Attorneys for Complaints of Illegal Harassment
Sometimes a situation may fall into the realm of an illegal harassment claim. Most harassment complaints aren't straightforward or easy to handle. As in an equal employment and labor case, harassment cases require a specific series of steps take place.
You need the advice of an attorney trained in the applicable laws to advise you as you conduct your investigation. You need to be in compliance with the law and conducting the investigation correctly.
There are legal pitfalls in any harassment investigation so make sure your policies and procedures are in place before you get a complaint. And those procedures should, of course, be checked by your employment attorney.
Being Served With Legal Papers
At times, you may find your firm on the wrong end of a complaint or summons where an official notice of a proceeding will be delivered to your address. You must understand how to handle the receipt of these documents. If the issue applies to any employment or employee issue, get your attorney on the phone.
Do not, under any circumstances think that you can handle the situation on your own. Sure, you might 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.
Firing an Employee
In all states except Montana, employment is at-will which means that 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 situations that you must 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 decision.
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.
Legal Help When Laying People Off
Like a firing, layoffs should be straightforward, but you want to make sure that 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. Different states have different laws regarding layoffs—especially California.
If you're offering severance pay, you'll want to have your employees sign a general release of claims in order to receive that severance. In this document, your employee gives up the right to sue for several reasons 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 them 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. The law varies from state to state and you need to stay in compliance.
You may 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 you even more. Employers need an employment attorney to help them prevent lawsuits and prevent compliance problems.
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.
Suzanne Lucas is a freelance writer who spent 10 years in corporate human resources, where she hired, fired, managed the numbers, and double-checked with the lawyers.