Joel P. Bennett's employment law tips for businesses
From his Georgetown office, Joel P. Bennett concentrates his law practice on employment law and serves as an expert witness in cases involving legal malpractice in employment law cases. He's been gracious enough to share some tips for small businesses on dealing with employment issues for The Georgetown Dish. But first, a little about Joel P. Bennett.
Prior to starting his own practice in 1976, Mr. Bennett was an associate with the law firm of Stein, Mitchell and Mezines in Washington, D.C. , a trial attorney with the Federal Trade Commission in Washington, DC and a law clerk to the Hon. Richard W. McLaren on the U.S. District Court for the Northern District of Illinois. He is a member of NELA and has been on the board of the Metropolitan Washington Employment Lawyers Association since it was founded and served as its first secretary. Mr. Bennett is a graduate of Brown University and the Georgetown University Law Center, where he served on the law journal. He spent his junior year of college abroad at the London School of Economics. Mr. Bennett has also served as Chair of the Law Practice Management Section of the American Bar Association, President of the voluntary Bar Association of the District of Columbia, co-founder and first chair of the Law Practice Management Section of the mandatory District of Columbia Bar, chair of the Litigation Section of the District of Columbia Bar and a member of the Steering Committee of the Labor and Employment Law Section of the District of Columbia Bar.
JOEL. P. BENNETT'S TIPS FOR BUSINESSES TO AVOID EMPLOYMENT LAW PROBLEMS
1. Confirm terms of employment in writing
I have had many cases for employers where disputes dragged on and cost the employer significant attorney’s fees because all agreements were oral and the parties had different recollections of what had been said. It is also “penny-wise and pound foolish” as the British say, not to have your attorney review any such documents before they are given to the employee. I have had cases where letters confirming employment were ambiguous and lead to expensive litigation that could have been avoided if an attorney had reviewed the letter before it was sent to the prospective employee.
2. Document all problems with employees and advise employees of problems in writing
While small businesses do not have sophisticated personnel manuals and procedures, an ounce of prevention is worth a pound of cure, as the saying goes. In termination cases, the employer’s defense is made much stronger when there is evidence of contemporary written counseling of the employee for deficiencies of performance or misconduct. The employer should have the employee sign and date all such documents to prove receipt. Written employee evaluations for each year are also a good practice, with interim written counseling for any problems.
3. Have a general knowledge of the federal and D.C. laws that apply to you as an employer
4. Know when to consult an attorney for guidance
It is more important to know what you do not know and than what you know. A small company I have represented incurred substantial attorney’s fees because it had a misunderstanding of the legal requirements for paying overtime and was sued by several employees. Thousands of dollars could have been saved if the employer had consulted a knowledgeable employment attorney when starting the business or if the employer had consulted the overtime section of the web site of the U.S. Department of Labor.
5. Be familiar with federal and local wage and hour laws on overtime and payment obligations
This is a particularly tricky area of the law. The regulations are voluminous but are available at http://www.dol.gov/whd/
6. Be fair and pleasant to all employees but not overly familiar to avoid sexual harassment claims
Do not engage in sexual banter or jokes. Do not engage in physical contact with employees. If you have multiple employees, have a written sexual harassment policy and a policy for filing complaints. Give each employee a copy of your policy and get a written receipt for the policy.
7. Do not have employees work off the clock
See the web site noted in 5 above for wage and hour rules and regulations. This are tricky and must be consulted to avoid expensive litigation.
8. Do not treat employees as independent contractors unless you meet the IRS test
See www.irs.gov and insert the phrase “independent contractor” in the search box to pull up the IRS publications on this. If you improperly designate an employee as an independent contractor you could be liable for back taxes, interest and penalties.
9. Keep good records on employee hours worked, absences and leave used
If you are investigated by the U.S. Department of Labor or sued by a former employee and you do not have accurate, contemporaneous written records, the employee’s recollection may win out against you.
10. Do not enter into any contracts with employees, including severance agreements, without consulting an attorney
Again-do not be penny-wise and pound foolish and an ounce of prevention is worth a pound of cure. It is much less expensive to consult a knowledgeable and experienced employment law attorney at the time of terminating an employee than to pay to have a lawsuit defended later, even if you win.