6 Statements That May Mean Your Business Will Be Keeping An Employment Lawyer Busy

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Employment law can be tricky, and is not always intuitive to business owners who do not have time to learn some of the intricacies of employment law and best human resources practices. As part of our continuing effort in this space to educate business owners on important issues to their business, here are six statements that often mean an employer who may think she is saving money is actually putting the business in harm’s way.

“Noncompetes aren’t really enforceable. I’ll just hire him.”

Many employees and employers alike have a misconception that noncompete agreements are not enforceable. This misconception causes employees to take jobs that violate their noncompete, and new employers to hire them. While there are legislative efforts in various states around the country to limit noncompetes, the fact is they are usually enforceable at least to some extent in most states, including Ohio. (The biggest exception to that statement: California.) Make a new employee represent to you whether he has a noncompete with a past employer, and if he does, insist on a copy of it and review it with legal counsel before hiring that employee.

“I’ll just get a document off the internet.”

I will be the first to tell you, there are many things that do not need to be done by a lawyer with a high hourly rate. There are relatively simple legal documents that require little if any modification from client to client. We have machines that can conduct many aspects of document review in complex litigation, and we are working to teach machines more and more.

So maybe the following statement will no longer be true in the future, but for now, in my opinion, whether it is an employment contract, or a workplace policy, or a contractor agreement, or any other employment document, what you find online, whether it is well done or not (that’s a toss up), is not likely to perfectly fit your business. An experienced lawyer should have most such documents available and can almost give it to you in a form that your lawyer already knows fits your fitness. It is unlikely that you will save money getting these documents off the internet.

“I’ll write it myself, then my lawyer can review it.”

Similarly, it usually takes me less time to modify a document I’ve used before, or even to write a new document for a client, than it does to review and revise something the client has written for my review. Lawyers definitely need client input about the client’s wants and needs. If a lawyer is not asking for that, you probably need a new lawyer. But not many clients are going to speed up an experienced lawyer’s work by starting a document for her. It may sound like it will save you money, but it probably won’t. Would you get started on a medical procedure for your physician?

“Other employees are tired of having to cover for him being sick.”

Many employees with health issues are considered disabled under the law. Disability discrimination laws can apply to employers of literally any size. And if an employee is disabled, she has certain rights under the law – laws that, frankly, don’t care if other employees (or you) find the absences inconvenient. No employee is entitled to unlimited or indefinite or wholly unpredictable leave, but she is often entitled to more than you would like. The legal requirements relating to ill employees are complicated. Talk to legal counsel before simply reacting to the frustration, even though that frustration is often understandable.

“We can’t afford background checks. Anyway, I’ve got good instincts about people.”

Many employees we spend time talking to employers about should not have been hired. In other words, employers do not often call me to discuss issues with good employees. And once we learn more about that employee, we often realize that we could have learned some of that telling information at the time of hire. Employers are often in a hurry to fill a need when they hire somebody, and as a result they do not spend the time getting to know the prospective employees.

I have said it for years: virtually any investment of time and money in the hiring process is a good investment, not only in avoiding legal issues, but simply in putting together the best team. Whether it is background checks or a thorough interview and evaluation process, your business can’t afford not to hire carefully.

“I don’t want somebody who files complaints working here.”

It ticks employers off when employees file a complaint or a charge with a government agency or even a lawsuit. I get that. You may think – and you may be right – that it’s disruptive, disloyal, and a bad way to solve problems. And – the employee almost certainly has a legal right to file it, and your business will have a bigger legal problem for taking action against the employer than it already has. These are complicated situations that are not easily solved, and employers need to approach them as such.

All of these statements are understandable, and intuitively make sense if you have not lived through tricky employment situations. But ultimately, oversimplifying things will actually cost you money. A proactive approach, including a lawyer you trust to give you answers that are in the best interests of your business (and not necessarily the lawyer’s short term financial gain), is ultimately the best way to save money.

Barnes & Thornburg LLP is a large, full-service law firm that seeks to take a more entrepreneurial and cost-effective approach both to client service and its own business.

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