Category Archives: Employment Law

SUMMARY OF 10 TIPS FOR SMALL BUSINESSES

I hope everyone has enjoyed my monthly tips over the last year for those who own, or want to own, a small business .  I thought as a closing for this series that I would summarize the tips in a one-page document that you can take with you and refer back to when you need a reminder.

First Tip: Create your corporate shield to “shield” you as an individual from liability by creating a corporation or a limited liability company for your business.

Second Tip: Get appropriate business insurance (worker’s compensation, unemployment, business liability, professional liability, health, etc.) and pay taxes.   

Third Tip: Do not misclassify your employees as independent contractors; do an analysis of the type of work, supervision, tools/equipment, control, etc. of your “independent contractors” to ensure they have not been misclassified.

Fourth Tip: Know the employment laws that affect your business such as Title VII, Equal Pay Act, Age Discrimination in Employment Act (ADEA), Americans with Disabilities Act (ADA), Family and Medical Leave Act (FMLA), worker’s compensation standards and Arizona state laws.

Fifth Tip: Set written employment policies in an employment handbook, consistently follow your own policies, and train your supervisors on how to implement your company policies.

Sixth Tip: Make sure you are promoting your employee benefits to your company’s advantage and do not forget the benefits that you can offer that do not cost you anything.

Seventh Tip: Make sure you have written contracts that lay out the true terms of the contract and avoid “handshake deals” which can create serious problems for your business if you end up in court.  

Eighth Tip: Integrate written social media policies into your workplace such as prohibiting employees’ use of social media at work, employees posting your company’s confidential material, trade secrets, or proprietary information, etc. 

Ninth Tip: Determine if you need a trademark or service mark for your business and if so, register your trademark or service mark with the United States Patent and Trademark Office (USPTO) to obtain exclusive nationwide ownership of the trademark and the presumption that the trademark is valid over others. 

Tenth Tip: Beware of personal guarantees because if you do sign a personal guarantee, you have to be willing to pay on the debt if the main borrower, whether it’s your business or your child, fails to pay. 

The information contained herein is general information not legal advice, and does NOT establish an attorney-client relationship with Lori Brown.

EIGHTH TIP; SOCIAL MEDIA AND THE WORKPLACE

The next tip for those who own, or want to own, a small business: integrate social media policies into your workplace.  

This past year I learned how to use Facebook for business.  I had a personal Facebook page for several years but was not an avid user.  I heard people talk about using social media for business, but I didn’t understand what that meant.  About six months ago, I went to a basic social media class and started a Facebook business page.  I learned how to post, use pictures, tag, schedule future posts, use hashtags, etc.  Now I post legal tips everyday to my Facebook page and I am slowly building an audience.  The idea of a Facebook business page might be old news to some of you and new news to others.  The fact of the matter is that a growing business needs to use every avenue available to market and social media seems to be “the” tool to use at the present moment.  Social media is also being used to investigate potential employees.  It is not uncommon for companies to choose not to hire a potential employee after viewing information posted by or about the employee on social media outlets.  And, I am seeing more and more stories about employees being fired due to items posted via social media.  Think about what you would do if your employee was posting negative comments about your business while he was at work.  Being proactive and adopting and integrating social media polices in your workplace is one way to avoid social media problems.   

A lot of workplace rules about social media really are common sense, but they still should be put in writing and reviewed with your employees regularly.  Some possible policy considerations include:

  • Prohibiting employees’ use of social media at work
  • Prohibiting employees from posting messages or material that could damage your company’s image or  reputation
  • Prohibiting employees from posting your company’s confidential material, trade secrets, or proprietary information
  • Prohibiting employees from posting messages that defame or slander management and co-workers
  • Prohibiting employees from posting messages that disparage your company or another company

My rule of thumb is everything that is posted on the internet is public.  I tell employees and employers alike not to rely on “privacy” settings because those seem to change regularly.  One of the main reasons social media is used is to expand your “reach”.  You get your word out by posting and hoping that others “like” and “share” your posts.  But, that “reach” could quickly become your enemy if something is posted about your business that is less than favorable.  The old school version would be hitting the send button in an email and the next instant realizing that you sent the email to the wrong person, or worse, hit “reply all” when you wanted to only reply to the sender.  So go out and use social media to its fullest advantage.  But, you also need to keep a close eye on what you and others are posting about your business. And, of course, I invite you to check out and “like” my business page: https://www.facebook.com/BusinessLawyerLoriBrown and I hope the information you find there will be educational and entertaining. 

The information contained herein is a business advertisement with general information not legal advice, and does NOT establish an attorney-client relationship with Hymson Goldstein & Pantiliat, PLLC or Lori N. Brown.

SIXTH TIP: EMPLOYEE BENEFITS

The next tip for those who own, or want to own, a small business: make sure you are promoting your employee benefits to your company’s advantage.  

There are many types of benefits that employers can offer to employees.  Insurance is usually the first one that comes to mind, such as medical, dental, vision, life, short-term disability, and long-term disability.  There are other benefits as well, which include:  paid sick; vacation and/or personal days; paid holidays; 401(k) matching programs; etc.  A small business owner’s main concern when deciding on what benefits to offer to employees is:  “How much is it going to cost me?”  This is a valid concern that has to be considered in conjunction with obtaining and retaining employees.  For instance, if you offer no benefits at all, will you continually have turnover with your employees because they are taking jobs elsewhere with better benefits?

I think small business owners sometimes forget to consider the importance of “employee relations” or the “spin” that can be put on what they have to offer their employees.   I am a mother of three young children and have learned the importance of the “spin.”  If I tell my kids they can have a “little bit” of ice cream for dessert, they cry and scream.  But, if I tell my kids I am giving them “a lot” of ice cream (especially if I put the ice cream in a small bowl), even though it’s the same amount I would have given them in the first scenario, they happily eat their ice cream.  The same rule applies in the workplace.  It may sound simple, but if you have staff lunches and the company picks up the tab for everyone’s lunch, promote that event as a “company sponsored” or a “company paid for” event.  Or, if you offer health insurance to your employees, consider letting the employees know how much you are paying to offer that benefit to them. 

And, don’t forget the benefits you can offer that do not cost you anything!  For instance, some employers offer their employees short or long-term disability insurance or identity theft protection.  These “benefits” are fully paid for by the employee, but the employee gets the benefit at a cheaper rate through a group plan offered via the employer.  The employer’s obligation only comes in deducting the premiums from the employee’s paycheck and transferring that money to the vendor.

At Hymson Goldstein & Pantiliat, PLLC, we have experienced employment law attorneys who can help you review your benefit policies to ensure they meet the needs of your company and your staff.

The information contained herein is general information not legal advice, and does NOT establish an attorney-client relationship with Lori Brown or Hymson Goldstein & Pantiliat.

FIFTH TIP: EMPLOYMENT POLICIES

The next tip for those who own, or want to own, a small business: set written employment policies.

All companies, large and small, need a written employment handbook that describes the policies that must be followed.  When I talk to an employer or an employee about a legal issue, one of the first questions I ask is: is there an established policy that governs this issue?  This is the same question that the court is going to ask if a legal dispute turns into a lawsuit.  The answer should be found in the written handbook.

Also, employers tend to rely on their “policy” when a problem arises.  For instance, when an employee asks a small business owner for something the owner is not willing to give, the typical (and easy) response to the employee is: that’s not our policy.  The problem is that many times the “policy” is not in writing.  Another problem is that there tends to be more inconsistency in how employees are treated when a policy is not in writing.  Inconsistency leads to the appearance of discrimination which can lead to a lawsuit.

Many policies can be included in a company’s handbook.  Typical handbooks include descriptions of the policies governing: attendance, vacation, sick, pay, confidentiality, trade secrets, discrimination/harassment, discipline, etc.  One of the most important parts of the handbook is the at-will employment disclaimer which informs employees that the handbook does not create a contract of employment.  Another very important part of the handbook is the “acknowledgement of receipt” of the handbook.  Employees should be required to sign the acknowledgment and return the acknowledgment to the company.  The employer will be hard pressed to prove to a judge later that the employee was aware of the company’s policies if the employer never had the employee sign an acknowledgment of receipt of the handbook.

And, last, but not certainly not least, once the employment handbook is created, all supervisors must be trained on how to implement the company’s policies.  There is no protection for the company if supervisors do not know and consistently enforce the policy.

The information contained herein is general information not legal advice, and does NOT establish an attorney-client relationship with Lori Brown or Hymson Goldstein & Pantiliat.

FOURTH TIP; KNOW THE EMPLOYMENT LAWS THAT AFFECT YOUR BUSINESS

The next tip for those who own, or want to own, a small business: know the employment laws that affect your business. 

If you are in business, your purpose is to make money.  To make money, most companies need workers to run the business.  Last month we discussed the difference between an employee and an independent contractor.  If you decide that you are going to hire “employees”, then you need to know and comply with the various federal and state employment laws in effect. 

For instance, there are various federal laws that prohibit discrimination in employment. Those laws include: (1) Title VII which prohibits employment discrimination based on race, color, religion, sex, or national origin, (2) the Equal Pay Act which prohibits sex-based wage discrimination, (3) the Age Discrimination in Employment Act (ADEA) which protects individuals who are 40 years of age or older, (4) the Americans with Disabilities Act (ADA) which prohibits employment discrimination against qualified individuals with disabilities, etc.  There are also similar state laws in Arizona that protect employees against discrimination.  You also need to comply with federal and state laws that establish minimum wage, requirements for payment of overtime work, recordkeeping and child-labor standards.  And then there are medical leave laws such as the Family and Medical Leave Act (FMLA) and worker’s compensation standards as well.

Not all of these laws affect every business because some of them only apply to businesses with a minimum number of employees.  For example, FMLA only applies to employers with 50 or more employees.  Every responsible small business owner should become aware of and comply with the employment laws that affect his/her business.  You certainly do not want to first become aware of a law that affects your business when you get hit with a government agency complaint or lawsuit.     

The information contained herein is general information not legal advice, and does NOT establish an attorney-client relationship with Lori Brown or Hymson Goldstein & Pantiliat.

THIRD TIP: EMPLOYEE V. INDEPENDENT CONTRACTOR

The next tip for those who own, or want to own, a small business: do not misclassify employees as independent contractors.  The reason that many small business owners want their workers to be independent contractors is because independent contractors are not covered by employment, labor, and related tax laws.  Therefore, a new business owner might be tempted to misclassify employees as independent contractors in order to avoid paying payroll taxes, benefits, and other liability.  Before you make this determination, you should do a careful analysis of many factors including:

  • the type of work the  worker is performing
  • whether the worker is supervising your employees
  • whether the worker has his/her own tools and equipment to perform the work
  • how much control you have over the worker (such as who sets the work hours and the pay rate)
  • whether the worker has his/her own insurance
  • whether the worker works for other companies or just for yours
  • whether the worker advertises his /her services separately

The above is not an exhaustive list, but demonstrates that this issue is not a simple one.  For instance, typically, independent contractors sign an independent contractor agreement which details the terms of the relationship between the company and the independent contractor.  But, do not fall into the trap of thinking that if you have a worker sign an independent contractor agreement, than that automatically makes the worker an independent contractor.  If you are being investigated by a government agency, the independent contractor agreement might be one factor that is considered, but it will be unlikely to cut short the investigation and end the inquiry altogether.

Also, consider this: if an employer fails to pay wages owed to an “employee”, that employer could liable under Arizona law for three times the unpaid wages.  If a court or government agency found that your business had misclassified an employee as an independent contractor and failed to pay wages properly, you could face other penalties as well including penalties related to the employment taxes you should have been paying all along.  There are other issues to consider as well such as immigration and worker’s compensation coverage.

My grandma used to say: “begin as you mean to go on”.  She was a wise lady because that is not only good life advice, but good business advice.  Whether you own an existing business or are starting a new one, it is wise to make sure you classify your workers properly.  And, if you already have an ongoing business and think you might have misclassified your workers, you are better off making efforts to correct your mistake now rather than letting the problem linger which could lead to bigger problems down the road.  At Hymson Goldstein & Pantiliat, PLLC we have experienced employment law attorneys who can assist you and guide you to avoid these legal pitfalls.

The information contained herein is general information not legal advice, and does NOT establish an attorney-client relationship with Lori Brown.

NON-COMPETE AGREEMENTS IN ARIZONA

Over this past year I have had several clients who left a job and came to me because they had signed a non-compete agreement with their former employer.  These individuals were concerned that the noncompete agreements they had signed would prevent them from getting new jobs.  This concern was valid as non-compete agreements may be enforceable in Arizona depending on the facts of each case.

Courts analyze the enforceability of non-competes by looking mostly at the reasonableness of three main features of the provision: its duration; its geographic scope; and the activity it restricts.  For instance, a non-compete might say that an employee cannot compete with her former employer for six months which is more likely to be enforced by a court than a five year limitation.  Next, a non-compete might say that an employee cannot compete with the former employer within five miles of the former employer’s office which is more likely to be enforced by a court than if the non-compete says that the employee cannot work anywhere in the United States (and therefore the employee needs to move to another country to find work! ).  Finally, a non-compete that says for example that a pulmonologist cannot practice pulmonology for a certain time limit and in an certain area is more likely to be enforced than a non-compete that says the person cannot practice medicine in Arizona for the next year (and therefore that doctor has to enter a whole new field if he wants to stay in Arizona).

To know when the courts will or won’t enforce a non-compete agreement is not easy.  Many clients think that a form used in one business will work for another – but that’s not the case.  Because so much depends on the facts of each situation, if you are ever presented with a non-compete agreement or are an employer thinking about having an employee sign a non-compete agreement, you should strongly consider having an experienced employment lawyer review the agreement with you to determine the agreement’s strength and enforceability.  Otherwise, you could end up in an unwanted lawsuit.  At Hymson Goldstein & Pantiliat, PLLC, we have several lawyers that are well-versed and experienced in employment law and non-compete agreements who have argued appeals on this issue that can help you understand and avoid the pitfalls of such an agreement.

  • SEVERANCE AGREEMENTS

    Lately I have been reviewing and negotiating severance agreements for a variety of clients.  I continue to be surprised that employers are offering severance pay in this economy.  You wouldn’t think, with so many people being out of work, and companies closing down regularly, that an employer would want to pay hundreds, if not thousands, of dollars to an employee who is being fired or laid off from employment.  But, I suppose it does makes sense when you consider that the main reason an employer offers severance pay is to obtain a broad release from the departing employee to prevent the employee from suing the employer.

    For instance, the normal practice in a severance pay situation would be for the employer to notify an employee that s/he is being separated from employment and present the employee with a written severance agreement which describes the terms of the separation from employment.  Typical terms in a severance agreement include, among other things, the amount of money the employee is being paid, health insurance continuation (usually under COBRA), and, of course, release language that states that in exchange for the severance pay, the employee is releasing any and all claims the employee has against the employer.  Sometimes the agreement will include outplacement service to assist the employee in finding new employment and these terms are often very negotiable.

    Thus, every employee being presented with a severance agreement must understand that once the severance agreement is signed by the employee, the employee has effectively released all of his or her claims against the employer.  Potential claims against the employer can sometimes be used to negotiate a higher severance payment from the employer.  But, in most cases, once that severance agreement is signed, a lawsuit can’t later be brought against the employer for issues related to the employee’s employment.

    So remember not to just “take the money and run”.  If you are offered a severance package by your employer, you should carefully consider the written terms of the agreement, evaluate any potential legal claims you may have against your employer, as well as have legal counsel review the agreement before you sign.

    %d bloggers like this: