Mon May 7thRestrictive Covenants and Blue Pencils: A Shifting Landscape
Business Employment Law Counsel
Alexandria Business Attorney Offering Legal Advice on Employment Law Matters
Harvey & Binnall guides businesses through the challenging employment regulatory landscape. Our attorneys take a two-pronged approach. We first counsel businesses on important practices and policies that comply with employment laws and avoid disputes. Should a dispute arise, we take decisive action to resolve the matter as expeditiously and effectively as possible.
Our comprehensive representation is particularly crucial to the success of small businesses that are growing or that have undergone rapid expansion. Laws and regulations that cover health care, wages, hours, family leave and other issues are different for small businesses than for midsize and larger companies. Therefore, a small company that has complied with the law for the life of the business may inadvertently violate the law as it grows. We understand the nuances of employment laws and how they affect companies, depending on their size, industry, location and other criteria, and work closely with our clients to protect their interests.
Full Scope of Employment Law Representation
In operating a business, companies are required to follow certain laws and legal processes, which can be time-consuming and burdensome. Our firm handles every detail of employment law matters so businesses can focus on operations and growth. We guide businesses through these important functions:
- General Corporate Counsel, to be on-call to answer questions and offer general advice
- Employment litigation, including settlement negotiations, administrative hearings and trial
- Wage and hour issues, including overtime pay, commissions, bonuses and labor laws
- Family and Medical Leave Act (FMLA) with respect to the rights of employees to take leave for illnesses or care for sick family members
- Discrimination claims based upon gender, pregnancy, race, nationality, religion and age
- Business development and its effect on employment policies and procedures
- Wage and hour compliance, to ensure the business is abiding by state and federal regulations
- Employee handbook and policy review, to develop comprehensive and effective rules for employees
Harvey & Binnall counsels and assists businesses of all sizes and at all stages of development regarding corporate creation, corporate governance, outside counsel services, asset purchase, D & O disputes and executive agreements.
Our attorneys have experience helping entrepreneurs found successful organizations and creating corporate structures to achieve success in business. We advise private companies on matters related to appropriate management and corporate governance structures that minimize risk to the individual directors and allow the company to weather both market and management changes over time.
We also assist corporate officers and boards of directors in preparing and negotiating employment agreements for new directors and management level employees. Executive employment agreements often create significant financial obligations for corporations, including severance, continued health and retirement benefits, indemnification for legal actions against the officer in their official capacity, and specific limitations on the rights of either party to terminate the employment relationship. Both the company and an executive should consider both the limitations on their right to terminate the agreement and the legal ramifications of terminating the agreement without following the established protocols. Harvey & Binnall assists both executives and corporations in crafting effective management-level employment agreements to mitigate risk and protect our clients’ rights.
Employment cases involve complex legal issues and are intensely personal for businesses and individual plaintiffs. For businesses, the more you grow, the more exposure to employment issues you face. Your business is unique, and a former employee’s claims will also be unique to their experience with the company. The federal government and the states heavily regulate employment – statutes apply at different times and have different requirements. Success in avoiding expensive litigation and efficiently resolving claims means hiring counsel who will develop a deep understanding of your business, the facts of each situation and your goals, as well as a command of the litigation process before federal and state authorities.
With a combined 50+ years of experience, Harvey & Binnall’s attorneys have helped numerous businesses navigate complex litigation in federal and state courts in Virginia, Maryland, and Washington, D.C. We have defended companies of all sizes in discrimination, wage and hour, breach of employment contract, misappropriation of trade secrets and corporate confidential information and intellectual property ownership cases.
At Harvey & Binnall, we pride ourselves on our strategic and zealous approach to litigation, preparing every case in anticipation of trial. Our aggressive strategy and trial experience gives our clients a leg-up and helps us strive for great value and great results.
In this evolving economy, many companies are shedding the traditional 40-hour work week. Instead, they’re building dynamic enterprises encompassing more project-based work rather than shift-based employment. In addition, more organizations offer flexible schedules, allowing employees to work remotely or complete their work during non-traditional hours.
Wage Requirements and Disputes
Wage disputes-particularly disputes regarding overtime and minimum wage compensation-are common claims in every industry. The underlying statutes and rules determining:
- whether an employee qualifies for overtime;
- the amount of overtime owed; and
- how the overtime is calculated are very complex.
Under the Fair Labor Standards Act (FLSA), certain employers must pay employees at least the minimum wage and must pay 1.5 times the employee’s regular pay rate (“time and a half”) for each hour above 40 hours they work during a particular work-week. The Act has numerous exemptions, as well as pitfalls for employers who do not understand how the Act applies to their business. For example, salaried employees are not automatically exempt from the FLSA, but may be exempt if their positions meet certain criteria.
Violating the FLSA carries significant risks. The Act permits employees to claim not only the amount of unpaid overtime in damages, but also an equal amount in liquidated damages, punitive damages and attorney’s fees for successful claims. Failing to properly pay your employees carries a significant risk, and with the ability to collect attorney’s fees, employees have no shortage of attorneys willing to bring claims on their behalf. Harvey & Binnall is proud to represent employers in finding ways to avoid FLSA claims and defend them against such litigation that cannot be avoided.
Joint Employer Status
The FLSA provides for joint employer liability, which means that two companies benefitting from the employee’s work can be jointly liable for any unpaid overtime. Corporations often find themselves the subject of wage suits brought by employees of staffing companies or franchisees, claiming that the franchisor or company utilizing or benefitting from the satellite staff’s work is their employer under the FLSA. Courts analyze joint employer claims on a case-by-case basis according to the totality of the circumstances of each situation. The key component is control over the employee’s work.
An experienced attorney can help your managers avoid joint employer liability and help you properly defend yourself against joint employer FLSA claims.
Employees v. Independent Contractors
No wage issue is more contested than the independent contractor exception to the FLSA. The FLSA’s wage requirements do not apply to independent contractors. Many companies can find themselves facing a wage dispute from independent contractors who allege that they are actually employees under the Act. The key component is whether or not the employer exercises significant control over the employee’s work.
Harvey & Binnall can help your organization navigate these issues and understand your obligations under federal and state employment laws.
The Family and Medical Leave Act (FMLA) places a number of requirements on employers. Not knowing your obligations as an employer or understanding when the act applies can result in significant legal problems.
The FMLA requires covered employers to provide qualifying employees with up to 12 weeks of unpaid leave within any 12-month period for a serious health condition, to care for a family member following the birth of a child, or to care for a spouse, parent or child with a serious health condition.
While that description seems straightforward, the FMLA has numerous qualifications that affect whether an employee is entitled to leave benefits under the act. Not all employees qualify for protection and not all employers are covered by the statute.
Qualifying employees are those who have worked for their employer for at least 12 months and at least 1,250 hours during those 12 months prior to taking leave. The employee must also work at a location where the employer has at least 50 employees working within 75 miles of the location.
The FMLA only applies to the following organizations:
- Private companies employing 50 or more employees for 20 or more workweeks during the current or prior calendar year.
- Federal, state and local agencies, regardless of the number of employees.
- Public or private elementary schools, regardless of the number of employees.
If your organization does not fall within one of these three categories, you are not a covered employer under the FLSA. Employers should seek legal advice regarding their employee’s leave rights before denying a leave request; the employee may have rights under other federal or state statutes.
What is a Serious Health Condition?
Generally, a condition will qualify as a serious health condition under the act if it is an injury, illness, impairment or condition that requires inpatient care or causes incapacity for three or more consecutive days. Not all medical conditions qualify as a serious health condition under the FMLA. Whether the condition qualifies will depend on the facts of the situation and to what degree it prevents the employee from engaging in normal daily activities.
Employer Interference and Retaliation Prohibited
The FMLA prohibits employers from interfering with an employee’s right to FMLA leave or by retaliating against an employee for taking leave. Interference, includes termination, disciplinary action, and other adverse actions.
Before you take any action against an employee for requesting or taking leave that may be covered by the FMLA, speak with an Alexandria business attorney to discuss the situation and plan your response. Our skilled attorneys are here to assist and guide your staff in FMLA compliance.
Discrimination claims are the most common and also the most disruptive employment disputes. They are intensely personal, both to the employee and to the staff accused of discrimination. Effective management training and clear anti-discrimination policies can significantly reduce the risk associated with discrimination claims.
Employers have a duty not to base employment decisions on your race, sex, age, religion, national origin, pregnancy or disability. Generally, discrimination involves treating certain employees less favorably than other employees because of one of the protected categories. Some jurisdictions also prohibit any employment decisions based on sexual orientation, however that varies from state to state. Sexual orientation is not a protected class under federal law, but public opinion (and with it judicial interpretation) is evolving rapidly.
Discrimination cases are factually complex and can take many forms. Knowing whether something qualifies as discrimination requires an in-depth analysis of not only how the complaining individual was treated, but also how comparable or “similarly situated” employees were treated in similar circumstances. The following are a few examples of treatment that may qualify as discrimination:
- Refusing to hire someone of a particular race or because they are or appear to be older;
- Providing training opportunities and promotions to only male employees while female employees holding the same positions receive less or no training opportunities and promotions;
- Punishing or disciplining all employees from foreign countries and not punishing natural born citizen employees for the same actions.
Our attorneys have experience representing clients in state courts, federal courts and before state and federal administrative agencies in discrimination matters. Obtaining a good result depends on marshaling all available facts and applying them in the most supportive and persuasive way to the court or a jury. At Harvey & Binnall, we believe the best way to protect your interests is to be ready for trial and thoroughly investigate all of your employer’s business practices to support your claim.
A successful business begins with a solid and thorough business plan. Whether creating a new venture or pivoting into a new business model or product line, planning and preparation are critical. Harvey & Binnall’s business development practice helps business owners create long-term strategies for success and growth. Along with a business plan, a working knowledge of applicable employment laws is necessary to business foundation and future success.
Our firm also has helped numerous businesses, advocacy groups and non-profit organizations with entity formation and corporate governance issues. Business stakeholders and officers need a clear understanding of revenue generation, profit-sharing, the decision-making process and who has control over day-to-day operations, business accounts and hiring and firing decisions. At Harvey & Binnall, we help new businesses and expanding enterprises begin with a solid foundation and help them navigate the operational and legal obstacles to success.
The Fair Labor Standards Act and state law impose strict recordkeeping and records retention requirements on employers. Employers must properly pay their employees under the FLSA, but must also keep proper and complete time and wage payment records for every employee. Employers must include basic information about each employee in their records, including the hours worked each day and during each workweek, the wage rate for the employee, and the total wages paid for each workweek. While employers are not required to use any particular recordkeeping format, the records must be complete and accurate. Employers must keep the records for at least three years; state law may require a longer retention period.
Failure to keep accurate time records carries significant risk should an employee file an FLSA claim. The burden of proof in FLSA cases falls almost entirely on the employer. A plaintiff alleging that they were not paid properly can prove their claim through their own testimony and is not required to present their own competing time records. Further, if the employer fails to keep accurate time records, the court can presume that the plaintiff’s allegations are true and find in the employee’s favor.
Employee handbooks are useful business tools that set the parameters of the employer-employee relations hip, and establish standards for common employment issues like vacation, sick leave, teleworking employee benefits, and address many common workplace issues before they arise. Since handbooks cover a large number of policies and must comply with employment laws, employers should consult knowledge counsel when creating an employee handbook. A handbook should be uniquely tailored to the operational and structural needs of the business. Company size, culture, the company’s products and services provided to customers and safety concerns all impact the handbook. Employment law is constantly evolving, and handbooks must account for those developments. We also advise our clients to internally review their handbook regularly and to include competent counsel in the review process. A proactive approach to handbook creation and revision will ensure that your workplace is compliant with all laws while minimizing future workplace conflicts and liability.
What is an Employee Handbook?
An employee handbook serves two key functions: it is a reference resource for an employer’s policies regarding common workplace issues and a manual for a company’s operational standards for addressing those issues. The handbook need not address every possible issue, but it should create a framework for how problems will be addressed and what behaviors will not be tolerated in the workplace. A thorough handbook includes sections on harassment, discrimination, drug and alcohol use, workplace violence, permissible Internet use, bring your own device (BYOD) policies, and rules of conduct. A well-written handbook can provide an excellent defense to potential legal claims that may arise.
Common Employee Handbook Sections
An employee handbook should accurately and clearly outline applicable employment laws and company policies. The handbook should address the following legal issues:
- Wage and hour laws
- Sexual harassment
- Overtime pay
- Sick days
- Employee leave (paid and unpaid)
- Americans with Disabilities Act and reasonable accommodation requests
- Vacation time
- Holiday pay
- Family and Medical Leave Act
- Parental leave and pregnancy-related issues
- Dress code
- Disciplinary procedures
- Termination policies and procedures
- Severance pay
- Grievance procedures
Other helpful sections include:
- The confidentiality of business proprietary information
- Employee privacy
- Teleworking and remote access to company systems
- Bring Your Own Device (BYOD) policies
- The ownership and rights in intellectual property related to the business and its work
A well-drafted employee handbook proactively addresses concerns before they arise, reducing the risk of workplace conflicts. Harvey & Binnall can help employers craft and revise employee handbooks that address the ever-changing employment landscape. Our knowledgeable attorneys can work with you to develop policies that streamline your operations, set operational standards and avoid potentially costly lawsuits.
Counsel on Employment Law Policies and Practices
Businesses have a duty to know and comply with employment laws. Yet, most small businesses do not have inside counsel to oversee the creation and enforcement of policies and procedures.
Our firm acts as general corporate counsel to guide businesses through the process of establishing employment law plans relating to wages and hours, grievance procedures, claims handling and other matters. We draft, update and review employee handbooks and policies and advice on best practices. We keep abreast of changes in the law and advise our clients on remaining in compliance in order to avoid lapses or violations.
Employment Dispute Resolution
Even the most diligent company can encounter an employment dispute. Workplace disputes can be especially problematic in a small business with limited resources and a small workforce. By intervening early, we are often able to resolve claims before a complaint is formally filed. We are also able to collect relevant evidence and mitigate damages should the claim proceed to administrative proceedings or litigation.
Learn More About Employment Law Compliance
Need assistance with a business or employment law matter? We’re here to help. Contact an Alexandria business attorney at Harvey & Binnall for guidance on employment law compliance and representation in employment disputes.