10 Employment Law Tips For Small-Firm Lawyers

If you currently have or plan to open your own law firm, then you need to know how to be an employer.

youre hired hiringNo one ever said it would be easy. What doesn’t kill you makes you stronger. You must be in it to win it. No pain no gain. Blah, blah, blah.

Lawyers are exhorted by all manner of pithy aphorisms and wise quotes, from law school to… whenever. But when it comes down to it, we all know what it takes: hard work and preparation, preparation, preparation.

If you have or are opening a small firm, are expanding your existing firm, or breaking away from BigLaw (hooray for you!) to start a boutique firm, you KNOW you have your work cut out for you, and you KNOW that’ll take hard work and – well, you know. You need clients; the last thing you need is advice on how to be an employer. But really, this is perhaps the FIRST thing you need to know!

We are told that lawyers are terrible businesspeople and managers, but we don’t have to be. We know how to practice our profession, we know how to study and learn what we have to, and so there is no reason why we cannot become good businesspeople and managers. But first we need to know what it takes to be an employer, and not just a lawyer, and how to avoid becoming entangled in the very disputes and lawsuits that we advise others about.

Everyone loves a list – it gives you advice and wisdom in quick, easy-to-read-on-the-treadmill soundbites. Not everything is reducible to a simple list, of course, but this may help get you started.

1. Commit to create/maintain a fair, honest, consistent and transparent workplace. Communicate with employees — the failure of communication is a major contributor to employee unhappiness and therefore employee complaints — which can easily morph into legal complaints of discrimination, and lawsuits. “Respect and compliance” (two easily remembered watchwords) in the workplace comes from the top down, so be a good role model and exemplar of fairness and probity.

2. Learn a little about the basic federal, state and local anti-discrimination and other laws affecting the workplace. Know at least what the many “protected categories” are, and, generally, what Title VII, the Age Discrimination in Employment Act (“ADEA”), and the Americans with Disabilities Act (“ADA”) prohibit; what “harassment” means and consists of; what you can and cannot ask in an interview; what constitutes “retaliation” and an “adverse action”; and what to do if an employee complains of discrimination or harassment. Know the difference between “employees” and “independent contractors,” as well as a little about the wage and hour elements of the Fair Labor Standards Act (“FLSA”), the Family Medical Leave Act (“FMLA”), and what OSHA does (know what OSHA stands for?).

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All of this is not hard these days – Google it if you have to.

3. Know who you hire. Don’t run afoul of the anti-discrimination laws noted above, or GINA (look it up!), or laws relating to, for example, credit and criminal record privacy, and health record confidentiality, but ask the right questions and check references and do some due diligence before you hire someone.

4. A diverse workplace is ideal and generally a more satisfied and productive workplace. With happy employees comes fewer grievances, which are less likely to transform into employment discrimination claims.

5. Always an important tip: Maintain a “zero-tolerance” anti-discrimination and anti-harassment policy in your company, and enforce it fairly and consistently. Make sure that this includes a procedure for reporting complaints of discrimination and harassment, and that the process to be followed if there is a complaint. Inform all employees as to where and to whom to go to register a complaint – provide the name of a person designated as an EEO officer to whom such complaints can be made. Treat all employee complaints seriously and confidentially (if requested to), and investigate all claims promptly and evenhandedly.

6. Draft (and keep current!) an employment manual or handbook that incorporates all of your company’s policies and procedures, and make sure that it is distributed to all employees. Better still, have each employee sign a receipt for it. Include things like: employment is “at will” (if that is the case in your state); your code of personal conduct, anti-discrimination, and anti-harassment rules/policies; vacation, personal day, sick leave and medical and family leave policies; and social media and BYOD policies.

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7. >Maintain good and complete records and document everything relevant in the workplace, such as employee performance and evaluations, problems and complaints, and any other matters that may be necessary down the road to support and justify disciplinary measures, termination, or reductions in force. This is important — if a complaint arises in the future this may provide you with a good defense – perhaps your only defense.

8. Make sure to conduct periodic and professionally-led training programs for all employees, as well as managers, in anti-discrimination, anti-harassment and anti-retaliation policies and practices. There are, indeed, many such professionals out there who do this – or ask an employment law expert.

9. If you can afford to (you will, eventually!), hire an experienced HR person or persons. As I have written before — they are worth their weight in gold — your gold! They know what you likely don’t, which may be all of the above.

10. Finally, if you cannot afford or justify hiring an in-house HR person just yet, make sure that you have a trained professional to whom you can turn who can identify an employment issue before it blows up. This person can be an attorney, or even an outside vendor who works with employers and knows the workplace and its peculiar issues.

Launching your own law firm is a wonderful thing, but it does come with new challenges if you have not been an employer before. Good luck to all of you who are going down this exciting path.


richard-b-cohenRichard B. Cohen has litigated and arbitrated complex business and employment disputes for almost 40 years, and is a partner in the NYC office of the national “cloud” law firm FisherBroyles. He is the creator and author of his firm’s Employment Discrimination blog, and received an award from the American Bar Association for his blog posts. You can reach him at Richard.Cohen@fisherbroyles.com and follow him on Twitter at @richard09535496.