Culture

"An ounce of prevention is worth a pound of cure."  Those words were never more true than in employment and labor law.  How does an employer minimize litigation and manage the risk associated with those cases that do get filed?

Get beneficial agreements with your employees.  Federal and state law respect the right of an employer and an employee to agree to resolve their disputes in private arbitration proceedings instead of in court.  Arbitration is considered to be quicker and less expensive than litigation in court, and the claim is usually decided by an arbitrator selected by the parties rather than a jury.  Consider asking some of your employees to sign restrictive covenants like non-compete agreements and confidentiality agreements.   

Scrub your employment policies.  Are you using a handbook that you found on the internet?  Have you been using the same policies for the last five or ten years without having them reviewed by a lawyer?  The worst time to find out that your policies are out of date is after you've already acted on them.

Audit your employment practices.  Do you use progressive discipline before terminating an employee?  Do you give employees a notice of their rights under the Family and Medical Leave Act if they take a covered leave?  Keep a good appetite for change and take a second look at the way you do things.

Audit your payroll practices.  Are most of your employees paid overtime if they work more than 40 hours in a workweek?  Are employees performing work before they "clock in" or after they "clock out?"  The laws allowing an employer to pay and employee a "salary" and not pay overtime compensation are very narrowly construed.  The general rule is that most employees are entitled to overtime compensation unless they are "exempt" under one of several specific exemptions.

When the process server is knocking at the door, the best defense is a good offense.  Your best outcome depends in large part on the aggressiveness of your defense.  It is critical that your attorneys have a firm, broad understanding of employment litigation.  You do not want a new associate or general litigator learning the process at your expense.