EMPLOYMENT LAW FOR EMPLOYERS
Smyth & Mason routinely counsels businesses on Employment Law. Here are some of the many ways we help:
PROTECT YOUR WASHINGTON BUSINESS THROUGH NON-COMPETITION, NON-SOLICIT AND PROPRIETARY INFORMATION AGREEMENTS
Non-Compete and Confidential or Proprietary Information Agreements are essential protections for Employers. Just ask any Employer who lost clients, employees or valuable information because they did not get one from a key employee. Many Employers don’t seek advice on these agreements. That is a mistake. Non-Compete Agreements must be tailored to your business. If they are broader in scope or duration than what an Employer reasonably needs, they will not be enforced as drafted. If they are not signed at the beginning of employment, they won’t be enforced at all unless additional consideration beyond employment is provided at the time signed. Proprietary Information Agreements protect sensitive business information from disclosure and use except on behalf of the Employer and also accomplish assignment of copyright, inventions and other rights of an employee. We can draft Non-Compete and Proprietary Information agreements tailored to your business and help establish valid consideration for those agreements.
When an employee violates a valid Non-Competition Agreement by going to work for a competitor, we can often help avoid litigation through a combination of a cease and desist letter to the employee and a notification letter to any new Employer. The new Employer has a legal obligation not to interfere with your valid non-competition and proprietary information agreements. Once confronted with signed prior agreements, many new Employers will fire your former employee before placing their own company at risk. This triangulation strategy can make a big difference in achieving cost-effective compliance.
If litigation does prove necessary, we can help obtain preliminary and permanent injunctions to stop violations and recover any damages for breach of an enforceable Non-Competition agreement. The message this sends to your remaining employees is also important: they learn you will enforce these agreements, so they better abide by them.
PROTECT YOUR WASHINGTON BUSINESS THROUGH PROPERLY DRAFTED EMPLOYMENT HANDBOOKS
All Washington Employers should have a well drafted Employment Handbook. Employment Handbooks help Washington Employers avoid liability by setting forth anti-discrimination and harassment policies and timely reporting obligations for alleged victims of such behavior. Without those policies, discrimination and harassment claims are more difficult to defend. Employment Handbooks also help preserve “at-will” employment and set forth Employer policies which help show compliance with federal, Washington and local laws on issues like pregnancy, disability and family leave, military service, vacation, and wage laws. In addition, Employment Handbooks can be used to establish policies on things like social media behavior and the absence of privacy rights as to Internet use, texts, e-mail and other usage of Company owned equipment cell phones, PCs and laptops.
PROTECT YOUR WASHINGTON BUSINESS THROUGH PROPERLY HANDLED INVESTIGATIONS OF DISCRIMINATION AND HARASSMENT COMPLAINTS
When an employee complains of discrimination or sexual harassment, Employers are required to investigate and to take prompt remedial steps to end any illegal behavior. Using counsel to assist in the investigation process helps Employers properly conduct and memorialize the investigation, achieve the right result and take action that is appropriate to the circumstances. Sometimes, the conduct complained of does not rise to the level of illegal discrimination or harassment. We help Employers understand what conduct rises to the level of illegal discrimination or harassment and what does not. Appropriate investigations also insulate the Company from criticism that they did not properly investigate or did not take appropriate remedial action. Failures in this area routinely result in further claims and lawsuits.
PROTECT YOUR WASHINGTON BUSINESS BY DOCUMENTING EMPLOYMENT PROBLEMS, TERMINATING APPROPRIATELY AND AVOIDING RETALIATION CLAIMS
We educate Employers and their managers on how to memorialize poor performance and properly terminate. One of the trickiest areas in employment law involves disciplining or terminating a non-productive employee when that employee is protected by law against retaliation. Retaliation protections arise in many different contexts. Exercising FMLA or state leave rights, making a workers compensation claim, complaining about overtime or other wage and hour violations, or complaining in good faith about perceived discrimination or harassment (even if the behavior does not ultimately rise to the level of legal discrimination) each give employees protection against retaliation. When an employee entitled to retaliation protection is later criticized or disciplined for performance problems, they often argue the real reason for those actions is retaliation. We help Employers navigate these concerns and defend retaliation claims.
PROTECT YOUR WASHINGTON BUSINESS THROUGH COMPLIANCE WITH WAGE AND HOUR LAWS
Employers are often confused by their wage obligations. Common mistakes include misclassification of employees as exempt from overtime, failure to correctly calculate overtime, failure to provide required paid breaks, improper rounding, failure to pay travel time, mischaracterization of employees as independent contractors and withholding of wages due to cash flow or otherwise. Unfortunately, the stakes are high. Employees can recover double damages and attorney fees and costs for clear cut violations and can also sue owners and managers individually who participate in the wage violation. Sometimes claims are brought in the form of a class action. It also only takes one disgruntled employee to complain to the DOL or DLI to trigger a comprehensive, costly and time consuming audit. We help Employers understand their obligations and make appropriate employee classifications. When an Employer faces vulnerability due to past practices, we also help formulate strategies to bring the Employer into compliance and minimize back-end exposure.
PROTECT YOUR WASHINGTON BUSINESS THROUGH DEFENSE OF UNINSURED WRONGFUL TERMINATION AND WAGE CLAIMS AND OBTAINING GO-FORWARD INSURANCE COVERAGE
Obtaining Employment Practices insurance coverage is a key element of protection for Employers. Unfortunately, not every Employer purchases such coverage and many assume they have such coverage when they do not. We defend and help resolve uninsured employment claims on behalf of Employers. By guiding Employers on appropriate employment policies, procedures and training, we also help them qualify for Employment Practices coverage on a go-forward basis.
PROTECT YOUR WASHINGTON BUSINESS THROUGH STRATEGIC USE OF SEVERANCE/SEPARATION AGREEMENTS AND RELEASES FOR DEPARTING EMPLOYEES
We also help Employers by drafting Severance, Separation and Release agreements and advising Employers on when to use them. These agreements provide Employers with a release of known and unknown claims and can be used to re-affirm and, as necessary, establish non-competition, non-disclosure, and non-disparagement commitments. These agreements need to be supported by consideration such as a severance payment, but that cost is often justified by the additional protection
PROTECT YOUR WASHINGTON BUSINESS THROUGH OFFER LETTERS AND EMPLOYMENT CONTRACTS WITH KEY EMPLOYEES
Sometimes, attracting and retaining talented employees requires a greater commitment by the Employer than a promise of at will employment and standard benefits. We draft tailored offer letters and employment contracts for Employers setting forth unique termination, retention, compensation, change in control and benefit arrangements necessary to attract or retain specific talent. We also help Employers to protect themselves through claw backs of signing bonuses, relocation and other benefits when an employee is terminated for cause or leaves too soon.