Is it time for an employment attorney?

April 6, 2015

“I’m Late, I’m Late For A Very Important Date, No Time To Say Hello, Good-bye, I’m Late, I’m Late, I’m Late!” – The White Rabbit from Alice in Wonderland (1951)

When to hire an employment attorney is a dilemma many employers — large and small — go through when trying to run their companies. Fortunately for some, this is a non-issue because the company never needs to deal with a lawsuit, a Department of Labor audit, an Immigration and Customs Enforcement (ICE) or Occupational Safety and Health Administration (OSHA) investigator knocking on the door, or a Union campaign. But, let’s be realistic. Unfortunately for many, the need for counsel just comes too late, leading to anxiety and a mad rush to act. 

Common problems inside the heads of owners and human resource professionals include: Am I paying my employees correctly (like salaried or commissioned route drivers and overtime)? Did minimum wage change again? Can I deduct uniform costs or shortages from my employees’ paychecks? What is family medical leave? Is my handbook a contract? Am I fine to discharge this employee? What makes a disability accommodation reasonable? Is my warehouse safe for employees? What notices do I have to post in the break room? Do I have to give my employees benefits?

While you do not want to be like The White Rabbit from Alice in Wonderland, there really is not a clear answer as to when is the right time to get an employment attorney involved in your business. However, this article can offer some guidance to ensure better protection. There are a number of phases to take into account.

New companies benefit from counsel

First phase. For companies just starting out, having an employment labor attorney to consult with is key. Again, any missteps upfront lead you down the path of The White Rabbit when issues occur later. For example, an employment attorney can prepare a sound handbook, advise you on the required employment notices that must be posted at your establishment or risk fines (e.g., OSHA Form 300A summary of injuries log, Equal Employment Opportunity (EEO), wage and hour, pay day and FMLA notices) and even explain to you the different types of reporting requirements for laws such as OSHA’s new reporting requirements for 2015, requiring that employers report to OSHA all incidents requiring in-patient treatment for just one employee and the deadline to file your EEO-1 report. If you’ve been in business for a while and have not done this, don’t fret. You can always stay ahead of the game and have an employment attorney audit your policies and practices now to make any necessary adjustments to reduce any exposure or risks in the event your employment practices are not up to snuff.

Second phase. I call this phase “maintenance”. Once you know you have all the bells and whistles in place, you can feel confident to run your business and do what you do to make money — that’s why we are in business, right? Now you shouldn’t feel the need to have to run to your employment counsel on every single employee decision (let’s be honest — attorneys cost money). However, employment issues will rear their ugly heads, like drug screens or background checks gone bad, complicated employee discharge decisions, or keeping up with the changing employment and labor laws. For these complicated situations, that’s when you can seek guidance once again from your attorney. I always say, we cannot stop employees from suing, but when they do, we’ll have the best defense as possible. When you are this ahead of the game, you are that much more prepared for any issues that come down the rabbit hole later.

When the worst happens

Third phase. The final phase is the dreaded confrontation with the process server where you are handed a complaint and summons or a charge from the EEO Commission or the surprise visit from OSHA or ICE. If you’ve done your homework up until now, these instances do not seem so scary. You know exactly who to call — it’s not Ghostbusters — it’s your employment attorney with whom you’ve already consulted and trust to handle this bump in the road. This attorney now knows your business and knows what systems, policies and practices you have in place to protect the company. You’re not caught with the Pandora’s box of employee evils because you are equipped to defend the company to dissolve these types of employee disputes, hopefully sooner rather than later.

In the end, as a business owner, you want to focus your energy towards operating a successful company, not defending yourself against employee issues. Unlike The White Rabbit, have the time to say “hello, good-bye” with your customers and vendors and leave the employee issues to the professional who is there to make your life easier so you can sleep at night.