When should business owners consult an attorney? Ideally, before a problem becomes expensive. The Tammany Hall political machine was notorious for its slogan of “Vote early and vote often.” For business owners, I would change that to “consult early and consult often.” The value of having a lawyer you can trust is to get quick, practical answers to three fundamental questions:
Sometimes people are in a rush to get started, to beat their competition to the punch, or to capitalize on early enthusiasm. Those are all valid reasons, but it is important not to make your life more difficult in your haste. A call or meeting with counsel when deciding what type of corporate entity to form is valuable before filing your articles of incorporation. Seeking advice before hiring your first employee can ensure your policies, handbooks, offer letters, and classifications comply with applicable laws. Similarly, consulting before certain high-risk decision, such as hiring or firing decisions, can help reduce risk by avoiding or minimizing discrimination claims.
Sitting down with a lawyer who knows what questions to ask to identify your goals and priorities, and who can incorporate those goals into legally defensible documents, policies, and decisions does take some time. But the time it takes to engage in this preventive legal work pays dividends by avoiding substantial risks and costs later on and putting you in a better position to defend any claims or disputes.
If you end up falling into the “What if I already did it?” category, you are not alone. Many calls come after a decision has been made or a situation has escalated. Real-time guidance and advocacy are available and can help you navigate the matter and improve processes.
Consider this example. This will be a little like those Choose-Your-Own-Adventure stories that were so popular when I was younger. You have a recent hire who simply is not working out. You had high hopes, but she is consistently missing performance goals and making the same mistakes on the job, despite focused training. You want to fire this employee and replace her with a more qualified candidate. So far so good, right? Then the employee tells you she is pregnant. Now what?
If you never spoke to an employment attorney about your policies concerning performance expectations, discipline, and termination, you may be missing key elements to making a defensible decision. Are the performance expectations articulated in your policies? Do you have policies that dictate the process for handling performance deficiencies to ensure you are treating all employees consistently? Do you know what your obligations are when it comes to a pregnant employee who may be requesting an accommodation? Do your policies and personnel documents reflect at-will employment? Do you have documents or other evidence to support the decision independent of the pregnancy?
If, on the other hand, you consulted an employment attorney early, you will likely be in a much stronger position. You likely had the attorney prepare or review your policies and personnel documents and you can be confident that the terms of the new hire’s employment were communicated clearly. You have policies that you can rely on and apply consistently, ensuring that your personnel decisions are legally defensible. You may still call your lawyer, but the call will be shorter, calmer, and more focused than if you are speaking with the lawyer for the first time.
At Luchansky Law, we have extensive experience working with employers and helping them put the right processes in place when you consult early, and we also provide real-time guidance and training to your HR and management teams so you can follow your documented procedures with confidence. If a situation is already escalated, we have your back and can help you defend against any claims and mitigate the damage. Call us at 410.522.1020, or email me today at alan@luchanskylaw.com.
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