Updated: Oct 4
As a business owner, you may wear many hats: marketing guru, janitor, supply manager, fearless leader, shelf-stocker, buck-stop, bookkeeper, and HR department. And if you are, in fact, serving as your own HR department, you may be tempted to create your own employment documents or to purchase them from the internet. This is understandable, given that you also manage the budget. Why pay an attorney to do what you feel you can do for yourself?
Why You Should Have an Attorney Review Your Employee Documents, Processes, and Handbooks
According to the US Chamber of Commerce, businesses saw an increase in out-of-court dispute resolution with employees during the COVID-19 pandemic. But this uptick in settlements may also mean that businesses find themselves on the receiving end of an increase in employee lawsuits and labor complaints! The most common filings include those related to discrimination, harassment, worker injuries, payment dispute and breach of contract. (US Chamber, 2021) So how does a smaller business protect itself against these common complaints? I hope we can all agree that prevention is key.
You might feel that staffing--as in, not enough good candidates to hire, and difficulty retaining staff--is your biggest issue. In reality, finding and keeping the right people is largely related to (a) the image your business projects in public and (b) the consistency with which you treat your employees. So how does a business owner embrace consistency and respect within its policies?
To apply policies to employees consistently and to adopt processes that prevent complaints, a business will need both written materials and adherence to those written materials. Employee documents and handbooks are essential for almost any business, but it is important to have them reviewed by an attorney to ensure that they comply with all applicable laws and regulations. It is also essential to talk to your attorney about how you use those documents and monitor compliance to ensure that your own policies will not be used against you. Here are a few reasons why attorney review is essential:
To protect your business from legal liability. Employee lawsuits are on the rise, and one of the most common claims is that the employer violated the employee's rights. A well-drafted employee handbook can help to protect your business from these types of claims, and even application of the policies can counter accusations of discrimination.
To ensure that your policies and procedures are fair and consistent. An employee handbook should be clear and concise, and it should outline your company's policies and procedures in a way that is easy for employees to understand. An attorney can help you to draft a handbook that is fair and consistent, and that complies with all applicable laws. Policies should not be reactionary, but should be proactive.
To avoid costly mistakes. If you are not familiar with all of the applicable laws and regulations, it is easy to make a mistake when drafting employee documents. Using an online template or someone else's handbook might recreate someone else's problem! An attorney can help you to avoid these mistakes, which can save you money and time in the long run.
Small Business Investment in Outside Counsel
While large corporations have legal departments, most smaller companies do not have a general counsel they can reach by intercom. So how does a small business utilize the help on an attorney? Finding an attorney who handles business setup, disputes, and labor issues is important to do before you actually develop a dispute. After all, we invest in prevention by buying insurance, spraying for insects, using slip-free mats and rugs, and installing security cameras! Here are some specific examples of the types of employee documents that should be reviewed in advance by an attorney:
Employment contracts. Employment contracts are legally binding agreements between an employer and an employee. It is important to have an attorney review your employment contracts to ensure that they are fair and that they protect your business interests.
Employee handbooks. Employee handbooks should outline your company's policies and procedures on a variety of topics, such as hiring, discipline, and termination. It is important to have an attorney review your employee handbook to ensure that it complies with all applicable laws and regulations. Items of note include:
Disciplinary policies and procedures
Termination policies and procedures
Employee leave policies and procedures
Discrimination and harassment policies and procedures
Non-compete agreements. Non-compete agreements are contracts that restrict an employee's ability to work for a competitor for a certain period of time after leaving their job. It is important to have an attorney review your non-compete agreements to ensure that they are enforceable--and there are important restrictions on these agreements in many jurisdictions.
Non-disclosure agreements (NDA's). It is easy to overstep in limiting an employee's ability to disclose confidential or trade secret information, and even more difficult to navigate what to do with former employees. An attorney can advise you on where your NDA's risk going too far.
Confidentiality policies and agreements. Similar to NDA's, confidentiality agreements are contracts that require an employee to keep certain information confidential, such as trade secrets or customer information. In an electronic world, it is especially important to have an attorney review your confidentiality agreements to ensure that they are enforceable.
If you are a business owner in Kansas, it is important to have an attorney review your employee documents and handbooks. An attorney can help you to protect your business from legal liability, ensure that your policies and procedures are fair and consistent, and avoid costly mistakes. If you do not have an attorney, I would be happy to meet you.
If you have any questions about reviewing your employee documents and handbooks, or if you need assistance drafting new documents or handbooks, please contact me today and ask about our business subscription plans or flat-fee document review.