Employment

No. Drafting and signing a separate employment agreement may make sense for an executive, a salesperson, an employee with access to confidential information, or an individual in a highly specialized role. But other employment-related documents are important regardless of position. For example, an offer letter should confirm each employee’s position, compensation, benefits, and at-will status. Employees should also sign an acknowledgment that they received an employee handbook, confirming that they are on notice of workplace policies.

It depends largely on the law of the state where the employee works. Some states prohibit employee noncompetes; others limit who can sign them or require advance notice, additional compensation, or specific language. In states that permit noncompetes, courts generally examine whether the restriction is reasonable and protects a legitimate business interest. Consider whether confidentiality, trade secret, or nonsolicitation provisions can protect your business without preventing an employee from taking another job.

A worker’s title or contract doesn’t determine whether a person is an employee or an independent contractor. Federal and state laws use different tests, but factors that courts consider include how much control your company exercises over the person’s work, whether the worker operates an independent business, how you pay the worker, and whether the relationship is permanent. Some states use stricter tests than federal law. It’s important to consult legal counsel if you have misclassification concerns. Penalties for misclassification include overtime, taxes, benefits, and penalties.

Common mistakes include treating an employee as exempt from overtime without confirming that the employee’s salary and duties satisfy the law; failing to record work performed before or after a shift; overlooking compensable travel, training, or on-call time; mishandling meal and rest breaks; and making improper deductions from pay. Employers also need to comply with state and local requirements, which may provide greater protections or impose additional penalties beyond those of the federal Fair Labor Standards Act (FLSA). Experienced employment attorneys conduct wage and hour audits that identify classification, timekeeping, and payroll problems.

Take the complaint seriously, document it, and determine whether an investigation is necessary. The person receiving the complaint shouldn’t promise complete confidentiality or reach conclusions before gathering the facts. You may need to preserve records, interview witnesses, review emails and other documents, or take temporary steps to protect the people involved. Your company should also guard against retaliation while the matter is pending and after it concludes. Work with employment counsel to plan and conduct fair investigations, assess the findings, and decide on corrective action.

The Equal Employment Opportunity Commission (EEOC) or a state or local agency will notify you of the charge and set a deadline for responding. The agency may offer mediation, request a written position statement and supporting records, interview witnesses, or seek additional information. Preserve relevant documents, notify counsel and any applicable insurer, and ensure managers understand that they cannot retaliate against the employee who filed the charge. An employment attorney will help you investigate the facts, prepare a response to the agency, and represent you in mediation, investigation, and any subsequent litigation.

Before making the final decision, confirm the reason for termination and review any records supporting it. Consider whether the employee recently requested leave or an accommodation, reported discrimination or another legal violation, filed a workers’ compensation claim, or engaged in other protected activity. Review any promises your company made in a handbook or employment agreement as well as prior disciplinary decisions. Also plan for final pay, benefits, the return of company property, access to company systems, and continuing confidentiality or restrictive covenant obligations. Addressing these issues before termination can prevent disputes.

Begin by finding out what the employee needs and why. Employees don’t always use legal terms or submit a formal written request, so your managers need to recognize when a conversation may trigger the company’s obligations under federal, state, and/or local leave laws. You may also need to obtain documentation and discuss accommodations with the employee. Be sure to evaluate and document each leave and accommodation request.

Review them regularly and whenever your company grows, enters a new state, changes how employees work, or faces a significant change in the law. Policies that once worked for a small office may no longer address remote employees, multiple work locations, new leave requirements, wage and hour rules, or technology usage. Your handbook should also explain how employees can report concerns. Distribute updates regularly, obtain acknowledgments of receipt from your employees, and ensure your workplace practices align with your written policies.

It depends on the number and location of affected employees and the reason for the reduction. Depending on how many workers you are laying off, the federal Worker Adjustment and Retraining Notification (WARN) Act or state law may require advance notice of plant closings and mass layoffs. Selecting employees for layoff or RIFs can also trigger discrimination claims, so review your selection criteria for possible discrimination: namely, whether your decision disproportionately affects a protected class. Then consider severance and benefit obligations and determine whether any employee agreements or policies apply. For example, if your severance agreement contains a release of claims, employees age 40 or older are entitled to an additional 45 days to review the agreement and another 7 days to revoke their agreement after signature.

Yes. We offer compliance training on harassment and discrimination prevention, performance management, leave laws, accommodation requests, and lawful hiring and termination practices.