Lawyer as Employer

LAWYER AS EMPLOYERLAWYER AS EMPLOYERCOURSE NO. 1091D

Building an effective team starts with informed team leaders.

LAWYER AS EMPLOYER

SUMMARY OF COURSE CONTENT

Introduction

I. PART ONE - Labor and Employment Laws

a. Overview of Federal and State labor and employment laws

i. Federal laws

1. FLSA - Fair Labor Standards Act

2. Form I-9 - Immigration Reform & Control Act

3. OSHA - Occupational Safety & Health Act

4. ADA - Americans with Disabilities Act

5. ADAAA - Americans with Disabilities Act Amendment Act

6. ADEA - Age Discrimination in Employment Act

7. EPA - Equal Pay Act/Lilly Ledbetter Act

8. FMLA - Family and Medical Leave Act

9. HIPAA - Health Insurance Portability Accountability Act

10. Title VII of the Civil Rights Act

11. COBRA - Consolidated Omnibus Budget Reconciliation

Act

12. USERRA - Uniformed Services Employment and

Reemployment Rights Act

13. EPPA - Employee Polygraph Protection Act

14. FCRA – Fair Credit Reporting Act

15. NLRA – National Labor Relations Act

ii. Florida – State Laws

1. Florida Civil Rights Act of 1992 & Equal Pay Act

2. Florida Whistle Blower Protection Act

3. Florida Minimum Wage Act & Child Labor laws

4. Right to work & employment at will

Lawyer as Employer Summary of Course Content

2

5. “Guns in the Workplace”

6. Florida Domestic Violence Leave

7. Florida Workers’ Compensation Law

iii. Florida and Federal Right-to-Know Laws

b. Who must comply?

c. What are the perils and pitfalls?

d. Tips on compliance when recruiting, interviewing, hiring, managing,

disciplining, and terminating

II. PART TWO

a. Policies, Processes and Procedures

b. Handbooks and Manuals

c. Training Programs

d. Employee Recruitment, Hiring, Orientation and Training

e. Performance Appraisals

f. Termination

g. Compensation and Benefits

h. Conflict Mediation

i. Leadership Styles

III. Appendix

a. LOMAS Sample Position Description-A

b. LOMAS Sample Position Description-B

c. LOMAS Sample Performance Evaluation Form

d. LOMAS Staff Management Self Audit

e. Florida Bar Journal, July/August, 2009, Volume 83, No. 7, “Employment Law for Law Firms: Do the Shoemaker’s Children Need New Shoes?”

S G A

A T T O R N E Y S A T L A WEXPERIENCED RESPONSIVE STRATEGIC

CHWARZBERSSOCIATES Attorney

Profile

Steven l. SchwArzberg

Steven L. Schwarzberg, AV-rated by Martindale Hubbell, has served as counsel for a number of corporate and individual clients for more than 30 years. He specializes in handling litigation and trials in the areas of employment law as well as commercial, probate, intellectual property, corporate and real estate law. Steve regularly represents a broad spectrum of clients, private and public, in both Federal and State courts around the country, in the trial and appellate levels as well as before administrative

agencies, arbitration panels, mediators and other alternative dispute forums. He works closely with clients, general counsel, HR Directors and corporate management to find strategic and cost-effective solutions to avoid disputes, if possible, or conclude litigation successfully, when necessary.

Steve is the founder and managing member of Schwarzberg & Associates, a litigation boutique specializing in employment law compliance and defense and commercial litigation.

• Panelist on the Daily Business Review’s Employment Law Roundtable

• Runner up for the South Florida Business Journal’s Key Partner Award

• Named one of Florida Trend’s Magazine’s 2007 Florida Legal Elite for Labor & Employment Law

• Featured speaker, Schwarzberg Spector Duke & Rogers Employment Law Breakfast Series, 2006 and 2007

• Featured speaker, Employment Law for Law Firms Seminar, 2006 and 2007

• Featured speaker, Employment Law for Non-Profits, 2007

• Lecturer on various Employment Law-related topics before Chain Restaurant Compensation Association, Worth Avenue Merchants Association and other organizations

• Provided in-house seminars on employment-related matters for bank, retail chain and other similar clients

• Featured in American Bar Association article “Suing The State,” June, 1984.

Please visit us online at www.schwarzberglaw.com

E-mail: [email protected]

Notables and Accomplishments

Areas of Experience• General representation of clients • Complex

Commercial, Corporate and Partnership litigation • Employment Law, defense of FLSA overtime

compensation claims • Probate and Trust litigation • Real Estate, Land-use and Environmental litigation • Trademark and Copyright litigation • Intellectual Property • Internet-related matters • Health Care

• Business Torts • Bankruptcy litigation • Insurance litigation • Appeals • Administrative Law

• Alternative Dispute Resolution

Admitted to Practice Florida

United States District Courts, including Southern, Middle and Northern Districts of Florida

United States Bankruptcy Court

United States Circuit Court of Appeals for the Eleventh and Fifth Circuits

EducationJ.D., cum laude, University of Miami

School of Law, 1980

B.A., magna cum laude, Government, Harvard University, 1976

Professional and Community Involvement

Member, Florida Bar

Member, Palm Beach County Bar Association

University of Miami School of Law, Former Instructor, Legal Research and Writing

Barry University and Nova University, Former Paralegal Instructor

Anti-Defamation League, National Executive Committee

Forum Club of the Palm Beaches, Board Member

President B’Nai B’Rith Justice Unit of the Palm Beaches

United States Holocaust Memorial Museum, Palm Beach County Board

Harvard Club of the Palm Beaches

University of Miami Law Alumni Association

Board Member and Co-Founder Richard David Kann Melanoma Foundation

Esperanté Building222 Lakeview Avenue - Suite 210

West Palm Beach, FL 33401Phone: (561) 659-3300

Fax: (561) 659-1911

Judith D. Equels

The Florida Bar’s Law Office Management Assistance Service

(LOMAS) 651 E. Jefferson Street Tallahassee, FL 32399

(850-561-5795) Occupation Director, The Florida Bar’s Law Office Management Assistance Service

(LOMAS), 2009 – present Expertise Law office business and workflow process evaluation and development; risk

management assessment, planning, marketing, retreats, structure and governance, law firm accounting procedures and budgeting, compensation systems, training, support staff delivery systems, staffing requirements, systems, space utilization, office build-outs, office remodeling and office moves; law firm mergers and lateral acquisitions; law firm mergers, lateral acquisitions and firm dissolutions.

Previous Employment:

Senior Practice Management Advisor, The Florida Bar’s Law Office Management Assistance Service (LOMAS) 2000-2009 Management Consultant: Hildebrandt International, Naples, FL 1998-1999 Office Manager: Greenberg Traurig, West Palm Beach & Boca Raton, FL 1991-1998 Administrator: Shapiro & Bregman, West Palm Beach, FL 1988-1991

(acquired by Greenberg Traurig in February 1991). Office Manager: Wolf Block Schorr & Solis-Cohen, West Palm Beach, FL 1986-1988

(a Philadelphia-based law firm; the Florida offices became Shapiro & Bregman) Administrator: Roberts Baggett LaFace & Richard, Tallahassee, FL 1980-1986

(acquired by Greenberg Traurig in December 1991). Speaker/Lecturer: (Representative Listing)

• Upcoming: “Trust Me: It’s Not Your Money,” Association of Legal Administrators Annual Conference, Boston, May 3, 2010

• Upcoming: “Everything You Need to Know about Being a Successful Lawyer You Learned in Kindergarten” annual conference of The Florida Bar’s General Practice Solo & Small Firm Section. Present the law practice management and trust accounting segments. March 26, 2010.

• “Practicing with Professionalism” present the law practice management segment for this on-going seminar series for The Florida Bar’s Young Lawyers Division

• “Ethical Considerations in Electronic Records Management, EDD & Metadata,” 2008 Environmental & Land Use Update, Amelia Island, FL

• “Avoiding Stress & Developing Strategies to Balance Your Life & Practice,”, AFELA – Academy of Florida Elder Law Attorneys Annual Meeting, December 2007, Orlando, FL

• “Essential Competencies for Legal Administrators” (ECLA) Orlando, FL, Human Resources segment, November, 2007, for the Association of Legal Administrators (ALA National - Chicago, IL)

Resume of Judith D. Equels Page 2

• “Business Continuity Planning,” January, 2007, State Bar of South Carolina Annual Meeting, Charleston, SC

• “When What If Becomes What Now,” December, 2006, Chicago Title, New Orleans; October 2006, Illinois State Bar Association, Chicago, IL

• “Risk Management” February 2006, American Bankruptcy Institute Caribbean Symposium, Miami, FL; April 2006 Florida Bar Environmental Section; August 2006 Chicago Title, October 2006 ISBA Mutual Insurance Company.

• “Maintaining a Trustworthy Trust Account” December 2003, Old Republic Title, Columbia, South Carolina; and July 2003, South Carolina Bar Annual Meeting.

• “Managing and Growing an Entertainment, Arts or Sports Law Practice,” The Florida Bar’s EASL Section, January 17, 2003.

• “Professionalism and You” 19th Judicial Circuit Bench-Bar/Pro Bono Committee & The Florida Rural Legal Services October, 2002.

• “Trust Accounting” ALA National, Financial Section, Chicago, November 2004; and in Region II, ALA Regional Conference, September 2002.

• “Records Management,” and “The Budgeting Process,” The Florida Bar Elder Law Section Retreat, August 2002.

• “Best Practices of Governmental Law Offices” Florida Association of County Attorneys Annual Meeting, June 2002.

• “Avoiding Stress & Taking Control of Your Practice,” Tampa Bay Inn of Court, June 2002. • “Red Hot Marketing Tips,” Annual Meeting of the Georgia State Bar, June 2000, Florida

Association of Women Lawyers March 2003, Indian River County Bar Association February 2003.

• “Law Office Management – Soup to Nuts,” The Florida Bar Business Law Section Annual Retreat, Naples, Florida, September, 2000.

• “Improving Attorney Efficiency,” Aegon Group, Legal Department Annual Conference 1999 (Clearwater, Florida).

• “Changing Role of the Legal Secretary,” Annual Conference, Office of the General Counsel, United Services Automobile Association (USAA), 1998, San Antonio, TX.

• “Disaster Preparedness,” Annual Conference, Office of the General Counsel, United Services Automobile Association (USAA), 1998, San Antonio, TX.

• “Disaster Preparedness,” Economic Council of Palm Beach County, Florida, 1996. • “Cost Containment for Law Firms,” The Association of Legal Administrators International

Annual Educational Conference, Toronto, Canada, May, 1990.

Other Activities, Honors & Awards • Florida Department of Education, Business Management & Administration Group, Workforce

Education Advisory Committee, 2008-present. • Paralegal and Legal Studies Advisory Committee, Tallahassee Community College, 2002 – 2004,

2008 – 2010. • Member, Capital City Kiwanis Club, Tallahassee, Florida, 2008 – present. • Association of Legal Administrators, Florida Capital Chapter, President 2005 to 2007; Program

Chair, 2002-2003; Board of Directors 2001-2007; Chapter Coach: Certified Legal Manager Exam, 2007, Member 2000-present, Honorary Life Member.

• Staff Administrator: The Florida Bar’s Quality of Life and Career Committee, 2003 -2007. • The Florida Bar LOMAS Advisory Board, 1996-1997, 1999- January 2000.

Resume of Judith D. Equels Page 3

• Association of Legal Administrators Regional Vice-President 1991. • Association of Legal Administrators Assistant Regional Vice-President 1991. • Association of Legal Administrators Financial Management Section Committee (National)

1988-1991. • Association of Legal Administrators, Palm Beach County Chapter, Newsletter Committee Chair

1989 – 1991 (ALA National Award Winning Newsletter 1991). • Association of Legal Administrators National Nominating Committee 1988. • Association of Legal Administrators National Conference Planning Committee, 1987. • Association of Legal Administrators Tallahassee Big Bend Chapter, Founding Member &

Secretary 1984-1985 (Member of National since 1982).

Education Florida State University 1983-1985, accounting and business coursework Associate of Arts Degree, Tallahassee Community College, July 20, 1983 Continuing Education through the American Bar Association (ABA), the Association of Legal Administrators (ALA), the American Records Managers Association (ARMA), and the Society for Human Resources Management (SHRM)

Authored Works

for The Florida Bar: • “Sprinting Towards a Brick Wall: Retirement & Succession Planning for Lawyers

and Law Firms” 2008 • “When ‘What If?’ Becomes ‘What Now!?’ ” 2007 • “Your Law Firm’s Annual Checkup” 2004 • “Why Rainmaking Ability is Important for Small Firm Associates” 2002 • “Trends in Partnership Criteria” 2002 • “New Practice Checklist – Are You Ready?” 2001 • “To Merge or Not To Merge: Pre-Merger Discussion & Action Plan” 2001 • “The Seven Business Processes” – LOMAS 2001

for The Association of Legal Administrators:

• “Financial Management Section Handbook” ALA Financial Management Section Committee, 1991

Lawyer as Employer

is a two-part DVD set covering over 3 hours of practical, legal, and ethical aspects of law office employee management. Lawyers and law office staff must function as a team. Building an effective team starts with informed team leaders. From recruiting to termination, from FSLA wage & hour compliance to developing your own job descriptions, this DVD set with course materials, checklists and forms, is a valuable tool for every partner or law office manager tasked with managing support staff personnel.

THE FLORIDA BAR

LAWYER AS EMPLOYER

Practical and Ethical Considerations of Human Resources Administration

in Law Practice Management

Lawyer as Employer The Florida Bar's

Law Office Management Assistance Service (LOMAS)

800- 7 30- 2020

ERESENTED BY STEVEN L. SCHWARZBERG Schwar7be-g & sssccares

22 2 Lakevlgw Avenue; SUite 2 10 West Palm seecn, Flon ~a 3 3401

(561) 6 59· 3 300 steveQ:5:h....'anb-en;ll aw t;Om

PART I - Federal Laws

c LABOR AND EMPLOYMENT LAWS

• OVERVIEW OF f EDERAL AND fLORlOA LAWS • WHO MUST COMPLY • WHAi ARE THE PITFALLS • PRACTICAL TIPS ON COMPUANCE

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Federal Laws in this Presentation

o FLSA Fair labor Standards Act

o Form 1-9 Immigration Reform & Control Act

o OSHA Occupatronel Safety & Health Act

o ADA Americans with Disabilities Act

o ADAAA Americans with DIsabilities Act, Amendments Act


o AOEA Age Discrimination in Employment Act

o EPA Equal Pay Act/lilly ledbetter Act

o FMLA Family and Medical Leave Act

c HIPPA Health Insurance Portab ility Accountability Act

o Title VlJ of the Civi l Rights Act


c COBRA Consolidated Omnibus Budget Reconciliation Act

o USERRA Uniformed Serv ices Employment and Reemployment Rights Act

c EPPA Employee Polygraph Protection Act

o FCRA Fair Credit Reporting Act

I 0 NLRA Nat ional Labor Relations Act

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Foundational Concepts

1:1 Flarlda is an " At Will State" o Employee versus Independent Contractor 1:1 Criteria to Determine Classifi cat ion o COmply with Employment Law Requirements

• employee Hacd llOok • Implement ira -nir g • PoII0 es and ::>r:xedIJres mlJst be :n place

Foundational Concepts

o Disparate Impact • Neutrarpoll cy Or cracuee wLth ~ disc, Im in Cl torv resu rtDr Im pact • R i~ '.I De5teli/no

D DIsparate Treatme nt • In~~nt IOrlal d j S~ ri m l ""at lor..

• Su bject to bUrde r'P-~h , ft , n9 (."'1:!>Otli?eUDol,.g liH ccro. 01, G"e~)

o Retaliatlon (Generally) • E n'l O(O"~ eng3::l€ S In a protected ~et J"" lty

• Em ~o~ee expe riences adve rse emp loym ent act ion • A ca-.J:sal connecnon exists between the two • Bur l ing ton Northe,"n& Sal1ta Fe Raf,Fway Compaf1y' v. Whj~.

Fair Labor Standards Act ("FLSA")

c Florida - nation's hotbed of wage and hour litigation

On Q.i:!.£ d r"y, 70 ne w taV'ls \.J ~ts. weref lled In reo es-etCOurt III tne Scutnem D is~ Tl et of Flonda

• 36 were emp1oyment· re lated d etms, of rnc se, t swere F"LSA. overtime com :J~"sa tio " d aims

o FLSAclaims - greatest l itigation threat against employers today

a Ease of obtain: n9 class certification - Section 216(b) of the FLSA (29 U.S.C. § 216(b)

o Enterprise vs. Ind Ivid ual Coverage a Exempt versus Non-Exempt

LOMAS

THE FLORIDA BAR

FLSA, coot. o MonttOr meal breaks (no work performedl) o Beware: Non-exempt employees working from

home and/or "off the clock" oJ-year Statute ot limitations· willful Violations o Liquidated (double) damages available for

successful plaintiff/employee • ExceptiOn - act in good faith :

D comDlyingw j ~h a ",r~ttenQdmfn l$t:rali'Vere.9ula~ lon, Order/ruling Or

l:I Interpretat 1or,cf DOL 3cministratlvesxact1ceJporicy

C Generally no insurance coverage - employmentpract ices liabil ity insurance (EPLJ)

c "Comptrrne" is not allowed IJ White Collar Exemptions

FLSA, coot.

o Willful violations • Civil fines up to $1,000 per viola tion, • Cnrrunatfmes of up to $10.000, and • Impris onment ler up to six month. fer repeat offenders

IJ Record keeping requirements - burden is on employer to keep accurate time records

c Beware of state and federal child labor laws a Avoid improper pay deductions IJ Include all compensation in overtime calculation o Statutory attcrnevs fees - platnt: ff L1..QI

defendant

FLSA - Potential Costs Example: Ass istant Manager Earning $1,000

Per Week Working 50 Hours Per Week - .

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Immigration Reform & Control Act (IRCA)

o In effect since November 1, 1986 D Purpose: to control im migration by eliminating

opportunity to work without proof of eligibility D Requires all employees to complete For m 1-9

• Proof Or I~ent lty

• Proof of ellg il>lIity to wor1< In thl! U.S.

D Government Contractors required to use EVerify - September 8, 2009

o Compliance information located at www.uscis.gov

Occupational Safety & Health Administration (OSHA:L) _ o OSH Act of 1970

• Penalties

n Who must comply [J Duty to report [J General Duty Clause - to provide safe working

environment o Recordkeeping requirements o Posting requirements [J Examples of violations in the law office

• HI N~ , Carpal Tunnel Syndrome, et c.

o Material avetteble at www.osha,Qov

Americans with Disabilities Act (ADA)

a Who must comply • Penalties

o About the ADA (enacted 1990) a Prohibits discrimination against

qual ified Individuals • Physical/mental impairment that

substantially limits one or more major l ife activities

• Record of an impairment • Being regarded as haVing an impairment

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ADAcont.

o Recordkeeping and confidential ity a Agencies who enforce the ADA

• EEOC • DOL • State/Local Agencies

a understanding "reasonable accom moda tlon"

o Interactive process o Common violations

ADAIADAAA cont.

o Materials available at www.ada.qov • ADA GUide for Small Businesses

a hUp:Ilwwy!.adil.Qov/publicat,htm#AnchorAOA-35326

• A Guide to Disability Rights Laws o http;llwww.ada.goylcguide.Ddf

o EEOC FAQ - ADAAA • http://www.dol .gov/esaJofccpJregs/compliCi

nce/taqs/ADAfaqs.htm

American with Disabilities Act, Amendments Act (ADAAA) o = f f e::t. r ~ e January : ,2 009 o ~,standarn fc r '"'reg a"'<ledas" Q EEOC ·...'111 reVISEde fI nit Ion of ~· s u b s:t. a n tt a tJ y limits" and

"Sig n:f'uA nth' restricted " Q Oefi ....auon or <:lsa.blllty construed br oadly cOnly 1 /V.:tj or Life Activity ne ec ce IInite<: c Exoande d li st of Maj~r U fe Acnv nres e Ep I5.::diC: Im pairm ent s or those in rerrnss-onare covered If

"5u ts ta :"l ti 3 11 't'li m i t1 n~ " w," e n aetJve D M,tlgat ln ij meas ures st>OIJld net ee con sidered o No eccemmocen on fer "re garde.das· o Ex:ep:JQn for eyeglasses and correcnvete nses o Excepti on fot "transrrcrv lmparrment" a C':. l..i a l/ e :x p e et ~

dur a,t lOI'1 6 m or. ~ s cr less

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Age Discrimination in Employment Act of 1967 (ADEA) c About the Act n Who must comply

• 20 Or more em ploy ees

C ADEA rnineflelds • Appl ies to both emp loyee. and Job appl icant.

c Common violations [] Gross v. FBL Fmsnaet Services, Supreme Court

June 18, 2009 • age was the 'but -tor' cause 01 the employer'. adverse

action

C r-laterlal can be obtained at: • http:.llwww.eeoc.goy/typcs/age.html

Equal Pay for Equal Work o Equal Pay Act of 1953 o TItle VII of the CIvil Rights Act of 1964 c Age Discrimination In Employment Act of 1967 c Title I of the Arne ncens with Olsabil it ,,,s Act of 1990 o Considerations :

• 5 '<111

• Effort • Respon si:>ihty

• Work1n9Conditions • Establis,hmenVPt.ace

c Enforced by the U.S. Equal Employment opportururv Comm ission (EEOC) :

Lilly Ledbetter Act

Cl First act of congress sig ned Pre sident Oba rne o The ISO-day statute of llm lt ations for filing an

equal-pay lawsuit regard ing pay di scrim inat ion resets With each new discriminatory paycheck • In cludes charges fi led with the EEOC • 1 eludes retiree an nuity payments

=expanded cause of action: • Those .'affected" by an act of pay dlscnmtnatton may

file a claim

D Practice TIps: • Monil::)rpay ooroes, ;:; raCbC€s. enc cedsicos • Scrul inlze ~ obs : t'! 3l may b~ slmJlar with ctrrerere pa y

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THE FLORIDA BAR

Health Inforrnario n Ponability and Accountability Act of 1996 (HIPAA)

c Protected Healt h Information (PHI ) • "mdwiduaJ.'.,. 'demlfiable hell i th informaCion" held or

tra sm tt ted ey a covered e t ity

CJ Personnel Records are not PHI • Does not pro tect em ployment records, even Ir the

Information Is nea lth -retated • Does not prevent supervisor , HR, Or others trc m

asking ror a docto r's note or other in form atJon about employee's health If necessary to adrn tntster sick leave. workers ' compensation, wellness programs. or health Insurance.

o Matenals evauabte at hlt~; {/www.hhs.gov/ocr/privacy/

Title VII of the Civil Rights Act of 1964

c Unlawfu l for an employer, With 15 or more employees, to fail or refuse to hire or to discharge any lndivldual, or otherwise to discrim inate aga inst any individua l with res pect to his/her compensation, te rms, conditions or privileges or employment, because of such ind iv idual 's race. color, re ligion , ~ or nationa l orig in. • Estaolt shed the Equal Emplo yment Opportunity

Commission (EEOC)

o ',latertals can be obtained at http://www.eeoc.gov{types/race.html

The Fami.ly and Medical Leave Act of 1993 (FMLA)

c Who must comply • Employers WIth 50+ em ployees

c Traditional forms of leave • UP to 12 weeks 01 unpaId leave In a 12 month period • For the birth and care Of the newborn chi ld of the

emp loyee ; • for pla cement with the em ployee of a SOn Or daughter

for adoption Or foster care; • To care for an Immediate fam Ily me mber (spouse.

child, or parent ) with a serious healUl cond it ion ; or • To tak e medic al leave w hen the emp loyee Is unabl e to

.....or\( because of a serious health condition .

LOMAS 8

THE FLORIDA BAR

The Family and Medical Leave Act

of 1993 (FMLA)

n Bermuda Triangle c When employees must give notice of Intent to

take Ft-lLA tlme off c Employers' ool igatlons o Compliance tips a Common violations of the FMLA

• Enforced by the Feder al Department of Labor , Employment Standa rds Admin istration

• r~aterials ~ an be obta ined at http:/ .www.dol.gov/es.. lwtld.frol.. /

FMLA Military Leave o Effective January 16, 2009 c 2 Forms of Military Leave: I , "Qua lifying Exigency·

Handling af faIrs related to employee 's. spouse 's, paren t's , or child 's being called u p rn sup port of contingency op erat ion

2. ~Serious In jury or Illness" • t eeve to care for a ' covered serv ice m em ber ' who

suffe rs Illness er injUry while in servi ce " t nat m ay render the m em ber m edica ll y un fit to perform the duties of his/ he r otfrce, grade. rank. or rat ing '

Consolidated Omnibus Budget Reconci liation Act (COBRA)

c Em ployers ", ith 20 Or more employees c Em ployee s/ Fam ilIes abIlit y to ccn uo ue group hea l th

bene fits • w m ltE-d periods cf t ime

• Qaall fyln g events: a ....'clunta ry or Involuot ary )Otllcss

o 'lWu<:tJon In the hours worl<ed o Death a DI>(O=

Cl Qualified In<llv lduals u p t o 10 2% ot the cost to the plan Cl Not ice Requil ements

Cl Penalt ies c Materl a's can be obtained at

http://www·dcl.goy/dol/topk/he... tkJl..ns/wbr... htm

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COBRA-ARRA c COBRA Contlnuatton Coverage Ass is~n ~e i noer the

Amer ican Recovery and Reinvestment Act of 2009 (ARRA)

• Premium reductions ano add itional election opportunities

• Eligible indivi duals pay only 35'/0 of t heir COBRA premiums

• Employer pays 65% is reimbursed to th e coverage provider through a tax cre cit

• Effect,,,,, March I, 2009, up to 15 months additional coveraqe for those who became elig lole for COBRA from Sept ember I, 20D8 through Feb 'uary 28,2010

c cue to an Involuntary le rm in3 tl0 :1 orernptc vmem o requires emp10Yer to send noturcanons

Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA)

c October 13, 1994 o Provides service members' reemployment rights

• Returnr ng from a:tive duty In the unrormeo services,

• Retumlng fr orn the reserves Or National Guard • Dlsab(ed veterans

c Employee benefits continuation D Prohibits employer dlsCflminatJon based on m il itary service D Notice Requ irements

• 'Your Rights Under USERRA' http ://www.~ol.a(:v/ e ! a .....·5. use rra ....tm

c The U.S. Oepartmen: of labor's (DOL) Veterans' Employment and Training Service (VETS) administers USERRA.

Florida Statutes 768.096 ~ ?rov ide,; employers faced With cla ims of neg ligent hiring

with a presumption that il acted pro perly ifit per/arms a oackoround Invest,gat,on of a p rospect ive employee th at Includes :

A cnminal background lrl'VeSl lga oen ; Contacting references: Comp le:ionof a jab apphcat icnwn :h Indu::1es quesncns ebcvt : gI Crlmll'lat convict)c-I'\s• .}nQ

01 Involveme nt 1!1o "rlt bt..-Uons (o ~ fn~e nt1ontll t.ort:s wllere It...e c-cscectwe em p}o .,,~ was a defer.d2! nt;

Obta =ning ",,'nttenauthon zat lon frcrnthe P(OSpe-~I',,'e employee to dleck hiS/herc:rivers' I,cense record if such a c~ed< is relevant to the ","orl<to be dane; and Intervl~wlng the prospecti ve emoiovee .

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Employee Polygraph Protectio n Acr of 1988 (E PPA)

c Prohibite d Aets: • Re: c u l~ su l;j 'i~ !.t an emc 'c-ee (el'"ProsDe-cuveempl :l)' ~e:) t:2lk.e! ~ ne

cetectc r les t : cr us e c r inquire about r6Ulu. 0' a ne oereetc r test 01all e mp l!J,' U (Of crcscecn ...-e e:nploye.e); Or Dt s Ch~rge. dlsd pCine, dtscr rrntnate .)t; ~ ln3 ~ • .:: ~ .1y ~mj:: lcy rr:ent gr promot.e :or th reaten) to an em c'csee (or prosoecnve err.' iO·, I!t"

a ~'v! to t lt l... ... tes : g ::.a tn e N!1S 0 ' th. ~1$ ora t n t

a to· M 9 . c:em~6 ' M

a rei" l est t fln;J l !"o lJr.y prO!~~nil or to' ~ '!ro ~ n~ !In.,. ""9~'~! ~. EW;'

o Not ice Reouifemen:o;s: • Must display the EPPApost er

a The fmploym e,t St anda rds Ad minist rat ion's Wac;e ar.d Hour Div ision IWHO ) w,th,n tne U.S. D"l'''rt mentof Labo"(DOl) eo~or(e'S the EPPA

Employee T ermination

c Practices to follow relating to employee te rm ination • Create a file for employ ees • Issue Warnings to Employees

Social Networking & Background Checks

a Recent st at ist ics • Over 9 0% of emp loyers conduct some k ind of

background check • Over 70 ;;' of j ob recruite rs use t he I nterne t as part of

the screening process o Over 20% hav e respo "lCe:j m survevs that the .... anm.oatec

a cand;date- t asoo ::::n ir: rc· ma':lCn founa c fl:.l":e 'r-et • v\"hen lay.. f irm recruiters Viewed candidates' sc cra:

networki ng w ebsttes : c Over 6:>0:0 0 :he ~ ro files 21 c \,;aUy cc nta inej Intor.n .i3 Uon

suppc rtmq reievar,t :>rofessicnal quatulcancns o Over 30cro or ~ t'e p"ofUes conv eveda - orofess1c,nal lmage"

LOMAS II

THE FLORIDA BAR

Recruiting Minefields

c Social network ing sues - legal risks • 0e4amatlcn • first Amen<:ment - PUDI ~C SectCr

• T,: Je VII ar.d other protected classes • In .... astcn of prtvacv

o Why use these sites when recruit ing? • Obtain! confirm bac 'cproond Inform ! tton

e ove- <4 0% cr l'Ipplir;.a nts. ue.,:;":I:Jt wc:rk hl:slc ry 1::1 Ov er ~ O% of ~ppUc a n ts. lie O!I >OI,Jteducatioa al t:ISCC :V

CI Over 20 % 'Of appUcan.u (~ ' S l (led Inrormat JoCl

o 8ackg rOUnd c ecks o Fair Credit Report ing Act Compliance o fACTA otsnosa t Rule (2005)

Background Checks

c Why conduct them? • Av oid costly hiring mistakes • Applicants who will have nexus to the firm's money • Ne<;II,gent h r. r1 ~ decls,ons

1:1 Hlst¥Y or rnert, viclence, abuse, naressment.etc

o Practice lips • Stale on employment application what will be che<'<ed • Use on all applicants for ell classes of employees • Use of a thlrd-partv, out side agency • Document the background checks

National Labor Relations Act ("'NLRA")

Cl Even nc n-unrcn employers m ust com ply

" Section 7 - employee rlghl to organize and barqam colie :t ively

a Employer may not interf ere with " protected concerted act iv ities" for the purpose of "collective bugain ing or other mutual aid or protection"

o Generally prohibits most confidentia lity ru les

• Pay • Job benefits • Terms and conditions of empl oyment • Employee drsc iphne

LOMAS 12

THE FLORIDA BAR

Workplace Posting Requirerne nts Federal Posters

[] Job Safety & Health Protection - (OSHA) o Fair Labor Standards Act (FLSA) [] Your Rights Under The Family & Medical Leave

Act (FMLA) [] Uniformed Services Employment &

Reemployment Rights Act (USERRA) [] Employee Polygraph Protection (EPPA) [] Americans with DIsabilities Act (ADA) [] Equal Employment Is the Law (Title VII)

Workplace Posting Requirements, cant.

o Penalties for not posting o Help for workplace poster

requirements • httDj flwww.do!.Qov/osbpfsbrefa/po

ster fmatrix,htm • Posters required depends on the number

of employees - elaws Advisor: c http://www.dol.goV lelaws tfi,ststep/ol0,

bQn?b=CLQQOOOOQQQQQQQQQQQQQOQQQQQ OQQQQQQll

PART II - Florida Laws

o Florida Civil Rights Act of 1992 & Equal Pay Act

a Florida Whistle Blower Protection Act (FSA 112.3187) & Retal iation

IJ Florida Min imum Wage Act & Child Labor c Right to Work & Employment at Will

o " Guns in the Workplace H

o Florida Domestic Violence Leave

o Florida Workers' Compensation Law

LOMAS 13

THE FLORIDA BAR

Florida Civil Rights Act of 1992 [J Similar toTIt le vn [J Proh ibits discri mination based on race , rel igion,

sex, nallonal origin, age, handicap, pregna ncy, and marital sta tus

[J Punitive damag es cap - $100,000 o Prohibits sexual harassment [J Prohibits retaliat ion o Handicap claims construed un der ADA [] Parallels the Federal Equa l Pay Act

Florida Equal Pay Act

[J Paraltets the FederaI Equal Pay Act

The Preservation and Protect ion of th e Rigbtto Keep and Bear Ar m s in M ot a , Vc hicles Ac t of 2008

o "Guns in the Workplace" o July 1, 2008 [] Pubhc or pr ivate employers may not:

• J>rohib ll em ployee s from possessina any legally owned firea rm whe n locked Inside of a private v ehicl e In a parkIng tot :

• Ask an employ ee If he/she hil s a fi reaon in hIs/her vehicle

• u:. nduct a search or the emp loyee 's vehic le • Take any acti on agamst an emp loyee tor statements

made regarding possession of a f1rearrr • Condition Or terrnlnat e ernp lovrnent based on whether

an emplcy ee has a firearm license

LOMAS 14

THE FLORIDA BAR

Florida Domestic Violence Leave Law

[] July 1, 2008 c Employers wi th 50+ emp loyees [] 3 days of leave in any 12-month period

• Employee, fam ily , household m em ber of employee is a victim of d omesti c or sex ual v iolence

• eave may be wi th or w ithout pay • Emp loyee m us: be em ployed 3 + m ont hs • Can require use of vacallon/slck/PTO • Em ploy ee must prov ide advanced no tice

o UnlB-s l:nminert':. d3'1g-e"

o May not discharg e, dem ote, suspend, reta liat e or discriminate

Worker's Compensation Retali ation F.S. 440.205

[] May not discharge/threaten to discharge, intim idate or coerce any employee based on a val id wor ker's compensation claim

n Actual discharge is not necessary c May recover lost wages, lost earn ing capacity,

& med ical benefits [] Exclusive remedy provision

• Exce ption : Inle ntlo na ltorts

Required Florida State Posters

IJ All Federal Posters o Child Labor laws c Minimum Wage [] Unempl oym ent Compensat ion [] Worker's Compens at ion o Right to Know [] Florida CiVil Rights Act

LOM AS 15

THE FLORIDA BAR

Florida & Federal Right-to-Know Laws

c Employees have the right to know about physical dangers, hazardous or toxic substances in the wor kplace. The law requ ires th at employers disclose the hazards and provi de info rmation to ensure workers' safety.

c Under Florida Statutes, Chapter 442 , and the Federal Occupational Safety and Health Administration, Hazard Communication Standard, employers must develop a comprehensive program to Inform employees of hazards they may encounter In the work place, and also provide training in the use and handl ing of products contain ing hazardous chemicals.

Arbitration and Mediation o Mediation and Arb itration are forms of alternative

dispute resol ution (ADR) o Intended to avoid the potentially high Cost and

unpredictable outcome of a lawsuit. o Both are priva te forms of dispute resol utio n. This

means that, unlike a court case, they are not a matter of publ ic record.

a This confidentiality may be an extremelyimportant feature to one or both of the parties involved in the dispute.

o Disadvantage: alternative procedures are not ofte n bound to renew legal precedent in coming to a decision, parties cannot count on legalprecedent to be determinative of the result.

RRTFB 4-8.4(d) Misconduct

o "A lawyer shall not: • Engage In conduct in connect ion with the

practice of law that is prejudicial to t he admin istration of justice, including to knowingly, or through callous indifference, disparage, humi liate, or discriminate against lit igants, ju ro rs, witnesses, court pers onnel, or ot her lawyers on any basis, including, but not limited to, on account of race, ethn icity, gender, rel igion, national origin, disability, marital status, sexual orientation, age, socioeconomic status, employ ment, or phvsicat charactertstlc;"

LOMAS 16

THE fLORIDA BAR

TIME TO TAKE A BREAK

Lawyer as Employer

PRESENTED BY STEVEN L. SCHWARZBERG

Schwarzberg & Assodates 222 lAlo;~ Aven~; Suite 210 We:o.t Pal-n seacn. nCi''da .n~Ol

(561) 659- 3300

steve@sd1warzbel"glaw.com

LOMAS 17

PART II

LAWYER AS EMPLOYER

Practical andEthical Considerations ofHuman Resources Administration

in Law Practice Management

Lawyer as Employer

PRESENTED BY:

The Florida Bar's LawOffice Management Assistance Service

(LO~1AS)

800-730-2020

PART II

The Roleot Human Resources Management

in Law Office Operations

LQPAAS

What we will cover

• What is human resources management

• Policies, Processes and Procedures • Handbooks

• Manuals

• Training Programs • Employee Recruitment, Hiring,

Orientation and Training

• Job Descriptions

What we will cover

• Performance Appraisals

• Termination • Compensation Systems

• Benefits • Confiict Mediation

• Leadership Styles

A few words . . , • LOMAS cannot teach you everyth ing you

need to know about HR in thls one session.

• This QE-DVD is intended to address what you need to know and how to find resources. • Managing personnel will tI)' every maternal,

paterna, nurturing fiber you possess.

• There is no single "correct" way to manage the most important firm asset. Employees are a shared, lim ited resource with in the firm .

•.O~'Yo.S

2

Human Resources Management

• HR polides must reflect a firm's mission and goals. • Nature or the work and dients

• Never try to circumvent laws and regulations • What is the spirit 0; the law/regulation?

• Legislative intent

• Always have reasons for the firm's policies, processes and procedures and communicate them to the firm's employees . • BUilds trust

Three to remember

l.AmJree to be managed.

2.ItIlsinlB'O'9{JJtlt to bel ieve that you can supervise people when you do not know what it is that they do.

3.~llTMtlt is a support function.

• Being in control for control's sake Is not management.

The Partner's and Administrator's Role in HR

• Risk management • Recruitment, Selection, Train ing,

Supervision, Evaluation/Compensation

• A supervisor administers the policies

and processes of the firm's owners . • Recommends policy

• Only the owners approve and direct the enforcement of office policies

3

Law Office Policy Manuals

l,O r.1,.;5 '"

The effect of firm structure on policy development

• Authoritarian Style or Cooperative Style • Confederation of solo pract itioners? • Attorney practice groups.

• Best practices vary by area of law.

• Individual profit centers . • Each has own "deal."

• Large firm, Mid-sized firm, Small Firm

tOWS "

Managing Change • Using surveys to determine trends.

• ALA, ABA, TFB

• According to widely used personality tests (1'-1yers Briggs; Keirsey), most peopledislike change, and many people will actively resist change.

• Managers must communicatethat • Change ispart of thejob,

not an exception to thejob.

LOMAS "

4

Who and what are we managing? • "4-Gen" in the Workplace.

• TradiUonals (Mostly retired),Boomers (Senior Tsunami),Gen-X (Sa ndwichiCa' eglVer Generation), Gert-Y (Ec 0 Boomers).

• Changing nature of the "job." • Flextime, Job-sharing • Shift work, part-timers • V,rtual office • Independent contractors • Shrinking labor pool • Aging of the Profession

i s

4-Gen & Workforce Diversity • 1960 - 60% of U.S. workforce are wh e males • 2005 - 30% of U.S. workfcrce are white males • 2009 - Alm05t 50% of U.S. workforce are women • GenXand Gen Ydemand

• Techncl<l9)'. Flexible Hours. Olreer Faths, Ufe Balance

• Boomers demand • Part-lime work. Beg inningin 2006. a Boomer turn s 50 every 6

seconds.

• Don't Just adapt, capitalize on diversity • Work/Family Dilemma: t-lany great employees are

available, but cannot or will not work 9 to 5.

Aging of the Profession 1980 1990 2000I

51% of all la",,!ers 44% of all 1a\\~-er5

under 40

370/.: of .lllawye<S

under 40

46% of .11 lawyers 40 8< over 40 &.over

10% of all lawyers 13% of aDlawyers over ss

24% of all 136% of "II

over 65

33% of all Ia",yer s under 40

56% of all lawyers 40 & o\'er

12% of ali lowyers o'le r f>5

44%ofall lawyers are "ge lawyers are age / Iawyers are age 40 -f>5 140 . 65 40-65

41 ~ .; s

~r-o;Y4!le.rr l<;W.S

% change

198~2000

-18 '>b

+19 0/,

·1 %

+20%

MEOIAI~ AGE

' $

39

5

What Gen-Y is up to • ~EchoW Boomers • "The Millennium Generation H

• Born 1981-1995 • Job-hopping not a bad word • Technology skills out the whazoo • 3 out 4 has a working mother • lout of 3 Is non-Caucasian • lout of 4 live in a single parent household • They have already begun graduating law

school

"

Policy, Process & Procedure Manuals

• Policy, PROCE~ and Procedures • Manuals and Handbooks are designed to

give information: • Set limits and boundaries • Describes the firm 's compliance with labor

and employment laws. • Describes how the owners want their firm to

operate.

"

Workflow & Business Processes • Define how are jobs Interconnected • Rule of Thumb:

• In larger firms, job descriptions are more narrowly defined because there are economies of scale that jUstify single function jobs (e.q., file c1er;<, copy clerk). In smaller firms, cross-training and flexibility Is a rundamental aspect0' the cooperative management stvte foond In many small law firms.

• Business Processes and Procedures • Office-wide

• Workflow Processes and Procedures • Canvary acccrding to office, practice area, location

let-lAS .I

6

Protecting Employees and Clients' Personal Information • Identity Theft Prevention

• Programs and Policies • FfC's Disposal Rule (2006) • www.FTC.gov

• Technology Usage Policy • Internet and Social Networking

• e·mail • Camera phones • Texting • Fac;eBook. 'rwitter, LlI1kedlrt, etc.

"

Policy Manuals • Must emphasize manuals are not

employment contracts. • Alwars- have an HR specialist or labor &

employment lawyer review the manual. • Review the manual every year to determine

relevancy to operations and compliance with the law.

• There are several excellent form manuals in the legal marketplace to help you get started. • ABA, legaI publishers. • Canbe edited to fit your f irm andorcurnstances,

Process and Procedure Manuals • No one can write your procedures manual

because no two firms are alike.

• Start with the table of contents • The skeleton and framework.

• Don't try to write it yourse lf.

• Assign topical groupings of procedures to your employees to begin drafting.

• Meet frequently, veril'y the procedures.

• LOMAS can help.

"

7

TRAINING

COMAS

Training

• Not a one-time task; an ongoing effort

• Develop a checklist • Basic procedures • Equipment • General purposesoftware • Specialty software • Contact LOMAS for assistance

Where to find help with training • Askyour equipment and software vendors for

training checklists. • Ask the vendors ror a list of certified trainers In

your locale. • Audit the training manualsthat camewith the

equipment or software and create a checklist to use with the manual.

• Nevergive an employee a manualand walk awa;.; ,

l OM.loS

8

Get a grip on technology • Definepurpose of the software/equipment,

how your firm intends to use the technology before developing a traIning checklist

• Technology comprising up 6% to 15% of a law firm's gross revenues.

• Firms who are not properly training employees on the proper use of valuable technology are wasting resources.

• TlClining, Training and more Training

EMPLOYEE RECRUITMENT, HIRING, ORIENTATION

AND TRAINING

" )' IAS

Overtime Pay & Classification of Positions

• Exempt • Non-Exempt • Independent contractor

• co you have a contract?

• where to find help:

• www.irs.gov

• www.dol.qov

9

Classification of Employees

• Exempt • Th ree-pron~ rest • August 2004overhaul of the "",ge & bour laws

• Non-exempt • AlIOidunbidden overume

• IndependentContractors • Efflav:oral Control, Finanaal ContrQ!,Relationship of the

parties • Extensi,e instruction. must be trai~ in workplace

procedures, work dependent,,? • Con susl<lin a profit or loss • Sigr.lficant rl/lancial investment (tools of the trade) • Receiving ber.efits, perks

ae

Classification of Employees

• Three-prong test • 1. Does the employee supervise someone

else?

• 2. Is the employee directly or indirectly involved in the hiring and firing of other employees?

.3. Does the employee work independently?

You might be an employee (and not an Independent Contractor if.

• You have your own phone extension and are listed on the firm's internal directory

• You have your own assigned parking space

• You have a workshift

• You don't work for another company

10

Attendance Recordkeeping

• Must keep attendance on a 40 hour work week within the same time increment accuracy as you pay overt ime (e.g., 15 minutes)

• Why keep attendance records on everyone • Exempt job status is challenged • Off-site worker's comp claim • The receptionist needs to know where

people are!

Job Advertisements Nuances & Discrimination • College Student • Part t ime worker • Handyman • General repairs person • Gal Friday • Office Coordinator

• Young • Energetic • Older person • Mature • Young man • Can lift numerous 40

pound file boxes with no restrictions

Job Advertisements • SOurces for job postlngs

• School placement offices • Search firms

• Request a replacement guarantee

• Job fairs & open houses • Professional associations • On-linerecruiting • Your existing staff

• The goals of a good job advertisement are to generate good candidates as well as to screen outunqualified candidates

LC.......

11

This is a real job posting LEGA,LSECRETARY: &J s; ness l .wyerl~ '"e'\era tle firm,Cf-.:l ,.,, 1 sweett<!artof . guy, seeksreplacementror disl:»BI I€l; ' secretor/who Is QUttin9 just becauseshe'smO'iingto S,lacauga, Already had ~Ien:y 01 aPQIicato1Sfrom candJdates who ',,""Id l ke::>CClTleln a liC e earl. strol tnehalls, cnat 1"1111 frioonds, trO'l It", Intetl' et , <no::kOJt accco'e01 doaJmentsrelyingtotally onSpelCheci<, ..d tneo s., eak :x.(a Iinle "'c', :0 get the toesdcne. One of us oeedste ha-,escbsta , ti<llt!>'.P"'ierxe ,n ,ve rd, Ex:elaodo:heroomputer D<OQ'<lms, 3Ild i~ ~ no: gcing tc be me. Preferred::3ndJtlates will havebeen considereda geek In EfY,llish d.ss, "- mace ~ to llle fit1a1~nd in the61 h grade Sl'!ilingbee, CO"15lj ,,:he Je::pard,. c 'Je<.llOnStDceasy, and Jo:)~ back foodlyon c!>Opl:1ng wood.v. ,y moming befcre mi'kJog lhe ccws. ExcerJent ber etits, If plannit\gl or ",cmess ,death, dlsaOlI.:y&o1d age happens to "PI'6' 1to j'OU. II youknow lhedi/lerence ~ "a/lect "and "elfea" and arereaC,to ...-or1c, ;>easerepl,' tc:

Interview techniques • Prompting questions

• Avoid questions that requi re a yes or no • "Tell us how yOU . . • "

• Behavior oriented quest ions

• Scenarios • Get the deal breakers out of the way

first • Do not take notes on the resume

• What else?

LOMAS

Interview Techniques

• Traits of gooo mterviewers • Puts interviewee at ease • Is o~iectiYe ; keeps personat feelings in

dled< • Stru<bJring Interviews

• Rappo rt • Em pathy • Perspective on applicant backgmur.d • Details on applicant background,

education and experience • ;:valuating special accomplishments • Co~ S ideri ng the whole picture as a fit for

your fum

ThDFb uh e,."

12

Interview Techniques

• Topics covered in job offer interview • Start date or deadline for accepting offer

• Compensation package

• Conditions of a possible offer

• Relocation requirements

• Job requirements

• How reviews, raises and bonuses are handled

Interviewing: Weak V5. Strong Questions

• Give me an example where • Are you a leader? you emerged as the leader

of a group. Why? What were the results?

• Do you set a good example for others?

• Tell me in what ways you set a good examp le for others to follow?

The Laws - Protected Questions

• Why Should You care?

• Purpose of the Laws • Review Protected Questions • Consequences of Violations

• Ask only questions related to the position

• All Selection criteria equally applied

• Refer to Part I of this seminar

as

13

Don't Ask • National origin • Mantel status, cruldren • Religlon/ <reed • Race/color • Nuclear family and family planning details • Arrest reco rei

• can ask'haveyou everbeenCOIWicted of a rome?" -I t 1115 reievant to the jOb

• Photograph • Age, birth date • Ouzenshp

• exc..pt rc, proofof elg,b·1 it)' to wor!< fn I"" ccun!l)'

eu

Don't Ask • Mother tongue, first language, native

language • Except Job-related requrernents, e.g.,how fluent

are you In German; 1'1111 you take a test forus' • Travel

• cannot ask if travel will conflict with personal life • Can ask if applicant can travel; be prepared to

discuss how much lravei • Clubs or associations • Rentjownjor who lives with you • Gender related

Job Application & Reference Checking

• Usea form so you are consistent in checking the background of all viable candidates.

• Remember that protected questions apply not only to interviews but also to the job application and reference checks.

• You may always ask: • Previous employment • Oatesof hireand last date worked • Positions held • Employee's salary history

Lew.:;

14

Job Descriptions

The Foundation of Human Resources Management

'.or.'AS

Job Descriptions

• Job descriptions help cure problems with other HR management issues • Employees not knowing what their job

responsibilities are • Overlapping responsibilities • Cross-training and the Silo effect • Loopholes

• When to hand off to another employee • Chain of ccmmand re latlonshlps

lO '-"'"

Job Descriptions

• Properly developed job descriptions help with recruitment and management efforts. • Interviews • Performance standards • Training and Coaching • Discipl ine • SettingLimits & Boundaries

15

Job Descriptions

• Developed from the bottom up • What does everyone need to know how

to do? • Software • Equipment • Systems • Processes, procedures • Skills, education, certifications necessary

LC·.·:·..·

Job Descriptions

• Job Title

• Organizational unit

• Reporting accountability

• Job summary • Direct Duties and Related Duties

• Prerequisites

"

New Employee Orientation • Importance of Orientation

• Integration into firm • Canlake weeks • Makeappointments

• What to cover • sets the tone for the employee's work

experience with the firm • Always usea checklist

• LOMAS can help

LO'MS

16

What's in Your Personnel Folders?

• Why should you care? • Contents of Personnel Folder can become

the cornerstone of losing or winning a wrongful termina tion suit.

• Security. Is there enough information in the file to create a risk of identity theft? • Guardboth paper files eno electronic databases

lcM4S .,

Personnel Folders

• Contents • Employment application • Other skdls, but ot needednow • Pre-employment tests • Reference checks • Or,entation checklist • Policy manual receipt • Emeq;ency cootact Information • History of evaluations, coaching, training • Continuing education ecorns

Lor""'';

Personnel Folders • Keep In separate group files:

• Health insurance information • 1-9'5 • Performance evaluation forms

• Resumes • Tax forms - withholding informauon • Know when employees have a right to

review for accuracy.

ro...... "

17

Progressive Discipline • Florida is an at-will employment state

• If you Involve me firm in progressive discipline, you must administer the policy equally among all employees

• Progressive discipline actions could void the firm's at-will protection.

• No dtsdpllnary forms or memos - UNTIL the employee has read & discussed the disciplinary action with supervlsons),

Performance Appraisals

Appraisals Gathering Information

• Performance evaluations • SelfReview • Review from someone other than primary grcup

• Administrator's review

• Primaryreviewer

• Avoid line item rankings, however overall ranking can help bring closure to the form

18

Conducting the Appraisal • Positive atmosphere

• Start with positive feedback • Be sensitive

• Ask for solutions, Offer solutions • Concentrate on future actions

• What the firm needs

• Allow the employee to discuss feelings • Listen • Gain agreement future goals

" )"'AS

Delivering Difficult Messages

• C,red criticism at the • No anger or sarcasm action - no: the person • Listen to the employee • Acceptir.g constructr-e • Reaffirm support and

crmos m is often hard to connceoce In the personaccept

• GOAL = change• Fair warning? behavior • Be s;:Jecif,C, No threats • Ask, "wnat can [ do to

helpT

Terminations

l O",,"

19

Terminations • Document, document, document. • Review the termination checklist. • Review all documentation with the firm's

managing partner. • Considerconsulting an employment law

attorney. • Do not terminatean employee in a private

office, select neutral space such as a conference room.

Terminations

• Face-to-face meeting • Never terminate by phone, letter, e-mail.

• Second person (witness)present • Be brief • Details in writing, if warranted • Expect emotion • Insist on helping employee collecthis/her

belongings

Terminations • Terrmnatton checklist

• LOMAS can provide a sample • Near the top of the list should be steps taken to

safeguard the security of the fi rm:

• Fiml employees

• Firm clients

• Firm data

• Give all money due • 5everar,ce vs, wages in lIeu of nonce

• Accrued vacation. sick, ether leave

LOMAS

20

SUPPORT STAFF

COMPENSATION AND BENEFITS

LOMAS "

Compensation Systems • Remember: You Get What You Reward • 8enchmark against competing firms

• Whatcompensation frills and add-ens can your firm prov ide that other fir s are not in your locale?

• Be prepared to discuss the entire compensation package and provide written documentation • Beyond wages or salary • Showme tne money? • Additional motivators beyond money?

Compensation Systems • Tools to plan • Compensable factors • Compensatio n philosophy • Mar1<et survey data • Joo "wo rth"

• Mario:.et value appecacn • Internalvalueapprcacn - ranklngs

• Payranges and caps • Raises and bonuses • Permitted DiSparity

• Consideration for spedllQJlar Irnl ivid~ a ls

• Pitfalls

21

What is your firm's Compensation Policy

• Is it docu mented for management review and approval?

• Strategically driven? • What are the firm's staffing goals?

• Longevity over talent or vice-versa?

• Bonuses are tied to Individual performance, employee class, or firm results, or all of these?

OJ

Pitfalls &Traps to Avoid I • Paying the "Going Rate." • Announcing new compensation system until

ready to roll it out. • Creating your own plan in a vacuum. • Leaving criteria a mystery • If everyone is mild ly dissatisfied with the

compensation plan, it's probably pretty good! • Perfect is the enemy of Good

Compensation System Planning Tools

• Tools • Compensation planning checklist • Job descriptions • Job questionnaires, work logs • Benchmarking

• Use Surveys • No two firms (ire alike • Ask other firms ...

..to.."'"

22

Compensable Factors

• Education • Accountability • Experience • Loyalty • JobComplexity • Dependability • Supervision • Years in servicerequired

• Training completion • Accuracy/Quality • Mentoring/helping• Output/Quantity

others• Potential

lOtJAS "

Types of Compensation Systems

• 5kill-basec pay • Arm must be good at tm ining • Usuaily .....or1<s only In larger firms • Offers IJI'ward mobil,ty , but has a ceiling

• Cornpetercv-basec pay • I-'.anysu;Je(llisors don't have the In-depth knowledge of

""ukers' jobs to manaqe this system pr"llertv. Re!;Uires attorneyparti Cipation .

• Brcadbendino • Posted pay~a nges by em pl~ dassiflCatiol1 group, e.g .,

edmtrustraton, secreta ries, pcra le-~als

• Downside is ',andling spectacularem;>loyees who "cap out"

• Vanable Pay Systems • Ba~ pay plus share of a $Spool

LCI.A,l:.S

Raises and Bonuses

• Merit-based • seniority-based • Category-based • Overtime control • Spot bonuses, retention, signing • COLA • Annual holidaybonus or gIft, or both?

LO:-..v..s

23

Is your plan working?

• Perception of fairness @))• In line with firm's financial health • Everyone understands the system • Payis relative to job importance • Competitiveenough that you are not cherry

picked to death

• Compliant with laws • FleXible enough to attract special talent

LO~S "

Non-monetary Rewards Employee Motivation

• Recognition - employee of the year • Staff Appreciation Day • Choice of rewards

• Movie or event tickets

• Gift card • Day off

Conflict Mediation

L::ttM

24

Conflict Mediation v ! •

• Get training, don't go it alone~~'~~. • .j~ • set the ground rules .. ~•

• ~ABC" method ~{,

• Acknowledge the problem ,.; • Restate and confirm

• Boil down the problem • Clarify and prioritize th e issues

• Choice making • Br.alnsltOrm • TIl an k the employee for the effort at resol utiO"

Conflict Mediation con't.

• 2 climenslons of confllct • The 4 R's of conrhct • n ,'t? lssue • Respcns:bi1ilY

• The emction5 • Relatio nship

• 4 types of workplace • Real prob lem

confilct • Resp« t

• Over ta:ts • The 4-step process lOver process and • Your tum

methods III My turn • Over purpose • Mutual plannJOg • Over values • Follow th rough

• t-,.op«ns.tlnatlo:"l

Conflict Resolution can't.

• Active listening • Paraphrasing • Open-ended questions

• Oanfying

• Reflecting

25

Minefields

• Feedback relationship • Facilitate; don't get caught in the middle of a

contllcr between a lawyer and his/her immediate staff

• Halo/Horns Effect • Lawyer loves paralegal today; hates tomorrow

• Resources for lawyers • 00 not confront lawyers in crisis

• Provide resources and a plan for the partners to tleal with their brethren

,.LOOAS

Leadership in Human Resources

Management

LC.t.1AS

Becoming An Extraordinary HR Leader

• Staycurrent with • Become a good trends listener • leading edge, not • Acrive listening skills

bleeding edge • Progress- not • Avoid flavor of the perfection

month step-gap • Perfect is the enemy measures

ofgocd• Develop your • Choose consultantscommunication skills with care

101.u.s

26

Have you been tra ined to manage others?

• Do you have the skills and tr aining to properly manage oth er people? • If not, learn how to supervise others

• Where to get help and training • American Management Assodedon • Society for H!.Jman Resources Management • Chamber of Commerce • Communrty Co/lege, Universtr';' • S!d!!patl1.com • ABA-I.PM Section Bookstore • Theflorida Bar'sLOMASProgram

LOMAS

The Florida Bar's Law office Management

Assistance Service

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27

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July/August, 2009 Volume 83, No. 7

Employment Law for Law Firms: Do the Shoemaker’s Children NeedNew Shoes?, Part 1by Steven L. Schwarzberg, Kerry A. Raleigh, Larry A. Strauss, David I. Spector, Christopher S.Duke, Lorraine O’Hanlon Rogers, Arlene K. Kline and Scott A. Atherton

Page 69

You love that your secretary Betty plows through lunch to get your letters done and out to the client,taking bites of her turkey on rye in between keystrokes. You empathize with summer associate Joe,working until midnight, zealously getting your research done, and think back to your own days of latenights and flash a knowing smile. You’re grateful for your paralegal Sue, who is always willing to takework home with her to make sure she gets it done.

The problem is, while you are loving, empathizing, and being grateful, you are potentially violating the

overtime compensation provisions of the Fair Labor Standards Act (FLSA).1 You also just might be onthe receiving end of a not-so-nice lawsuit from lovely Betty, helpful Joe, and super Sue as a result.

The FLSA presents just one (albeit a large) part of the employment law quagmires facing theuneducated employer, and law firms are certainly not immune. As lawyers we are often so busyadvising others how to stay out of legal predicaments that we may forget to keep our own house inorder. This article offers some of the housekeeping tips law firms can use to make sure they aremeeting their own obligations as employers.

Sizing Up the SituationThe sound approach is to try to stop trouble before it begins and employ measures at the recruitmentand interviewing stages to minimize future problems. You may have heard the adage, “believe none ofwhat you hear and half of what you see, and you’ll get along fine in life.” When it comes to resumesand interviews, that’s sound advice. Don’t rely on them until you have confirmed the claims made onand in them. Some cases in point:

• Remember Michael Brown, the former FEMA director who gained prominence during the inquiriesabout the inadequate Hurricane Katrina relief efforts? Apparently his FindLaw.com profile boasted hewas an “outstanding political science professor” at Central State University. This was not true,

according to a Time magazine investigation, which found he was only a student there.2

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• According to a USA Today article in February 2006, Radio Shack Chief Executive Officer David

Edmonson lied on his resume, claiming to have a four-year degree when he didn’t.3

• More than 50 percent of all resumes are bound to have some form of inaccuracies, ranging from

falsified exam results and exaggerated work experience to blatant lies or omissions.4

It’s not enough to take Bar passage at face value, either. Go ahead and hire an attorney withoutconfirming he or she is actually licensed by The Florida Bar and let the billing begin. Once it isdiscovered that person has been engaging in the unlicensed practice of law, you can take the time torefund all of those billables, and endure the embarrassment of having to do so. Afterward, you canreflect on the fact that it all could have been avoided with a 60-second visit to the Bar’s Web site or a

call to its office.5 When hiring recent graduates, ask to see a copy of their Florida Board of BarExaminers letter confirming passage of the exam once the results are out, and verify its authenticity.

The due diligence does not stop with attorneys, of course. Support staff and others are also part of theinterviewing and hiring process. Confirming claims on resumes regarding everything from typing speedsto employment history will help you to gauge a person’s true level of competency and lets you knowyou are getting a person whose experience in reality mirrors what is on paper.

On the nuts and bolts side, some of the interview dos and don’ts bear repeating:

• Pregnancy: Off limits. Do not ask questions about family planning, number of children, etc.

• Religion: Avoid commenting on a job candidate’s cross, Star of David, or hex sign, for example. Itmay be viewed as if you have issues with those items — and the person. If the candidate is not hired,it then can become an issue for you.

• Criminal Record: It is permissible to ask if someone has ever been convicted of a crime. Don’t ask ifhe or she has ever been arrested.

• Citizenship: Stick to the tried and true: “Are you able to work in this country?”

Can They Stay or Should They Go?Lawyers come and lawyers go, but surely their departures tend to be the messier of the twooccurrences. Imagine this scenario: It’s five o’clock on a Friday and your prized associate walks intoyour office and says, “I really hate to tell you, but I am leaving, and thank you for your client listbecause I plan on calling every one of your clients, even though I have only worked for your firm forsix months.” What are your responsibilities to your clients and your firm under the ethical rules when alawyer leaves your firm?

First, the Rules Regulating The Florida Bar apply. Rule 4-5.86 details the responsibilities for lawyersand law firms when a lawyer leaves a firm. Among the first questions that come to mind: Who gets tonotify the clients about the attorney’s departure? If you want ultimate control over who gets to pick upthe phone and tell the client, put it in an employment or operating agreement. The Florida Bar hasexplicitly said such agreements control the issue.

Absent a specific agreement, the lawyer leaving is not permitted to unilaterally notify clients. Thelawyer and the law firm must work together to develop a joint notice that goes to that client. If youcannot work out a joint response, then the departing lawyer and the firm are allowed to unilaterally

Bar Journal Article


contact clients. Certain things must be addressed when you make that notification:

• Advise the client the lawyer is leaving.

• Advise the client he or she has the right to stay with the firm, go with the departing lawyer, or pickan entirely new lawyer/firm.

• Advise the client if he or she leaves, the client is still obligated to pay the firm’s fees and costs thatexisted as of that date.

Also, when it comes to client notification of an attorney’s departure, it doesn’t matter if the person isan associate or a partner. As in the practice of law in general, it’s all about the relationship the lawyerhas developed with that client. That relationship triggers the notice that must be given following therule.

Furthermore, a firm cannot restrict a lawyer’s ability to practice law after his or her termination. The

Florida Bar, in Ethics Opinion No. 93-4,7 found that an employment agreement that 1) prohibited anassociate during the two years following the associate’s departure from the firm from soliciting thefirm’s clients and inducing the firm’s employees to quit; and 2) required that if the associate did solicita firm client and the client followed the associate, the associate was required to pay the firm 50percent of any fees generated, violated Rule 4-5.6(a), which prohibits agreements that restrict the

rights of a lawyer to practice after the termination of the relationship.8

Rule 4-5.6 states that you cannot enter into an agreement with a lawyer that restricts the lawyer’sability to practice law after his or her termination. As a result, it is very clear that non-competeagreements between attorneys are unenforceable. The Bar’s Ethics Department also advised restrictionson attorneys’ fees are also impermissible, because they unfairly interfere with the attorney-client

relationship.9

They Can Leave, But They Can’t Always Take It With ThemRemoval of client files is often another area of contention when an attorney departs a firm. Here theanswer is clear, courtesy of The Florida Bar Ethics Opinion 69-1. In the absence of controllinggovernance language in a partnership or operating agreement, the files belong to the firm. A departinglawyer cannot take those files, absent the client’s express consent.

One area of perceived ambiguity often arises over clients who’ve not paid their bills. Here, too,however, the answer is clear. A law firm cannot hold the client’s file hostage in an attempt to get theclient to pay its bill. Doing so interferes with the client’s new lawyer’s ability to effectively representthe client, and you run the risk of a Bar grievance.

Attorneys (especially partners) also need to be mindful of their fiduciary duties to their firms, and the

applicability of the Uniform Trade Secrets Act (UTSA), which has been adopted in Florida.10 Suchthings as a firm’s business plan, financial information, and client list are generally protected under theUTSA. If an attorney decides to take such information on his way out the door, UTSA offers the firman avenue for enforcement, including injunctive relief.

OvertimeNow that you’ve worked through some of the issues involved in the arrival and departure of yourattorneys and staff, let’s contend with a critical day-to-day concern: the hours your non-exemptemployees work, and how you pay them for that work — notably, the hours beyond the standard workweek. A law office generally does not keep “banker’s hours.” Indeed, many attorneys and staff get to

Bar Journal Article


work early or stay late every day (often both), and staff — especially paralegals, interns, and lawclerks — may join attorneys in working some hours on the weekends. Given the more professionalrather than clerical nature of their work, the temptation to classify paralegals, interns, and/or lawclerks as exempt employees may be appealing, but firms must avoid the temptation of doing so.

Under the FLSA, wage and overtime exemptions exist for bona fide executive, administrative, or

professional employees.11 The professional and administrative exemptions each require that theemployee be paid a salary of at least $455 per week in order to apply. However, this salary thresholdis just one requirement. Even assuming that the salary requirement is met, paralegals, interns, andlaw clerks may not fall within these exemptions. A closer look is needed.

Paralegals. The skill sets, backgrounds, and experience levels of paralegals may vary considerably,fueling a desire to claim a professional exemption where the qualities lie on the high end of thespectrum. For example, Paralegal A has a four-year college degree and 10 years of experience, reviewsand assesses documents, prepares draft discovery requests and responses, as well as pleadings —everything up through the final approval and signature of the attorney. Paralegal B, on the other hand,may have a high school diploma and perform slightly more than secretarial tasks.

Despite those glaring differences in our sample paralegals’ skill sets, Paralegal A is not exempt fromovertime. The Department of Labor has addressed this issue, consistently finding that paralegals do not

fall within the most applicable exemptions — administrative and professional.12 Most paralegalpositions do not require a prolonged course of advanced study in the field of science or learning

required for the professional exemption.13 Further, because the paralegal is subject to the finalapproval and review of an attorney, the paralegal position does not require the requisite level ofindependent discretion and judgment to qualify under the professional or the administrative

exemption.14 If the paralegal’s work is being billed to a client, he or she is probably a productionemployee, and, thus, ineligible for the administrative exemption in any event.

Of course, as with most things in the law, there are exceptions: If a paralegal has an advanced degreein a field other than law, and uses that advanced degree in the performance of his or her duties, theparalegal may be exempt. For instance, if a paralegal has an engineering degree and uses it to advise

an attorney on an application for a patent, then that paralegal may be exempt under the FLSA.15

Interns. It is important to know the difference between a volunteer (or perhaps unpaid internship) andan intern. You may be approached by a bright-eyed, first-year law student who wants to come to yourfirm over the summer for the experience and work for free. It is a very nice offer from yourperspective. However, the Department of Labor and the courts don’t recognize a volunteer relationship

for private, for-profit companies.16 So what you may have is an employee who needs to be paidminimum wage and overtime.

There are certain criteria which must exist in order to have a bona fide internship.17 Essentially, theinternship should focus on the training and educational type instruction that is for the benefit of theintern. If the internship relationship offers a material benefit to the employer (such as being able to billclients for a substantial portion of the intern’s work), chances are it may not be a bona fide internship.In such instances, the intern may be considered an employee and firms must pay them at least theminimum wage and overtime.

Some colleges and law schools have a clinical program with a curriculum and a lot of oversight. Suchprograms probably do qualify as internships. However, for the intern recruited through a nonschool-

Bar Journal Article


sanctioned program, firms need to be very cautious about how they compensate interns. Theconservative, perhaps safer, approach is to consider them nonexempt employees, and pay them at

least the minimum wage and overtime.18

Law Clerks. FLSA exemptions for law clerks can be a tricky business. Some law firms treat law clerksas exempt under the FLSA, typically relying on the professional exemption. Although the professionalexemption can apply to licensed attorneys who have achieved their juris doctorate, law students do notyet have their license or degree, nor are they allowed to actually practice law (subject to limitedexceptions).

Employers have to keep a close eye on the type of work law clerks are doing. For example, if clerksspend a lot of time doing clerical or other administrative work, they may not qualify for an exemption.Moreover, if the law clerk is really acting as a paralegal, he or she may not be exempt as set forthabove. Thus, in light of the uncertainty surrounding law clerk exemptions, the safest approach may beto treat them as nonexempt employees, in which case they would be entitled to overtime compensationas well.

Time Management Once you determine whether an employee is exempt or nonexempt, you have a baseline to determinewho is entitled to overtime. Then it becomes a matter of managing that overtime through the policiesyou implement.

Under the FLSA, the employer has the burden to show that its time and pay records are reliable.19

These records will have to overcome an employee’s verbal claim of working off the clock, throughlunch, or at home. If you let an employee take work home, what mechanism do you have in place toshow that he or she worked one hour as opposed to six hours? If you allow employees to work throughlunch or on weekends, how will you prove you paid them for all hours worked?

For nonexempt employees, firms should consider having a rule against working unauthorized overtime.While you have to pay an employee for any overtime worked — even unauthorized overtime (if theywork it, they get paid for it), an employer can discipline an employee for any unauthorized overtime.Some firms also require that employees review and sign their time and pay records and have a policyin place that instructs employees to notify their supervisor if they believe their pay or time records arenot accurate.

Although you do not have to pay your independent contractors and exempt employees overtime underthe FLSA, you must also be careful as to both.

Independent Contractors. If you have true independent contractors, they are not employees, and as a

consequence, you don’t have to pay them overtime.20 However, just calling someone an independent

contractor doesn’t make it so, nor does just having a contract with them.21 The Department of Laborand the courts look at the economic reality of the situation, and have actually laid out a number of

factors to consider as part of a fact-intensive test.22

For example, if a firm hires a lawyer and calls him an independent contractor, but controls the work heor she does, how and when it is done, assigns staff to that person, and reimburses the individual forany costs incurred, chances are the so-called independent contractor is actually an employee. So if theindividual is paid hourly, he pr she needs to be paid overtime because, as stated above, to qualifyunder these exemptions the employee must be paid a bona fide salary. If you lose the salarycomponent, you most likely lose the exemption.

Bar Journal Article


For exempt employees, an area of concern is not doing anything to jeopardize their exemption. If youstart making improper deductions from an employee’s salary based on the amount of hours worked,

this may no longer be considered a true salary — at which point you may lose exempt status.23

So what is a proper pay deduction?24 A basic example includes when an exempt employee misses oris absent from work for one or more full days for a personal reason other than sickness or disability, or

an employee takes an unpaid leave of absence under the Family Medical Leave Act of 1993 (FMLA).25

An isolated mistake is not necessarily going to cost an employee’s exempt status. However, if theemployee can show a common practice in which every time an exempt employee works a half-day, theemployer makes a pay deduction, it is likely to support a finding that the employee lost his or her

exempt status.26

Thankfully, the FLSA has a safe harbor provision to protect an employer from losing the employee’sexempt status. There are three factors an employer must satisfy to benefit from the provision:

• Have a policy in place, preferably in writing, that is given to employees and specifies the employerwill not make improper pay deductions and provides a complaint mechanism;

• Reimburse employees for any improper pay deductions made;

• Do not make any willful violation or continued violation of the improper pay deduction once the

employer or other employees complain about improper pay deductions.27

To minimize the risks of running afoul of the FLSA, firms should ensure that their employees areproperly classified as exempt or nonexempt, keep accurate time and pay records, have appropriatepolicies in place, and protect the exempt status of their exempt employees.

1 29 U.S.C. §201 et seq.

2 Daren Fonda & Rita Healy, How Reliable Is Brown’s Resume?, Time (Sept. 8, 2005), available athttp://www.time.com/time/nation/article/0,8599,1103003,00.html.3 RadioShack CEO Lied on Resume, USA Today (Feb. 16, 2006), available athttp://www.usatoday.com/money/companies/management/2006-02-16-lying-exec_x.htm.

4 Steve Boggan, Nice CV, Shame About the Lies, The Guardian (UK) (October 10, 2006), available athttp://www.guardian.co.uk/money/2006/oct/10/workandcareers.g2.

5 The Florida Bar, Find a Lawyer, http://www.floridabar.org, click on “Find a Lawyer,” or call (850)561-5832.

6 Rules Regulating The Florida Bar 4-5.8, available athttps://www.floridabar.org/divexe/rrtfb.nsf/FV/5FD4074FB6E696DE852570DF006EDDE9.

7 Florida Bar Ethics Opinion 93-4, available athttp://www.floridabar.org/tfb/TFBETOpin.nsf/EthicsIndex?OpenForm.

http://www.time.com/time/nation/article/0,8599,1103003,00.html

http://www.usatoday.com/money/companies/management/2006-02-16-lying-exec_x.htm

http://www.guardian.co.uk/money/2006/oct/10/workandcareers.g2

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Bar Journal Article


8 See id.

9 See id.

10 Fla. Stat. §§ 688.01-688.09 (2007).

11 29 U.S.C. §213; see also 29 C.F.R. Part 541. (For administrative exemption, see 29 C.F.R.§541.200-§541.204; for professional exemption, see 29 C.F.R. §541.300-§541.301).

12 See DOL Wage and Hour Opinion Letter, 2005 WL 3638473 (December 16, 2005); DOL OpinionLetter, 2006 WL 2792441 (July 24, 2006).

13 29 C.F.R. §541.301(e)(7).

14 See DOL Wage and Hour Opinion Letter, 2005 WL 3638473 (December 16, 2005); DOL OpinionLetter, 2006 WL 2792441 (July 24, 2006).

15 29 C.F.R. §541.301(e)(7).

16 See DOL Fair Labor Standards Act Advisor — Volunteers, available athttp://www.dol.gov/elaws/esa/flsa/docs/volunteers.asp.

17 See DOLWage and Hour Opinion Letter, 2006 WL 1094598 (April 6, 2006).

18 Note that under 29 C.F.R. §541.304(c), employees engaged in internships, whether licensed prior tothe commencement of the programs, qualify as exempt professionals if they enter such program afterearning the appropriate degree.

19 See 29 U.S.C. §211(c).

20 See Dole v. Shell, 875 F.2d 802, 804-805 (10th Cir. 1989).

21 See id. at 804.

22 See id. at 805.

23 29 C.F.R. §541.603(a).

24 29 C.F.R. §541.602(b) sets forth proper pay deductions.

25 29 U.S.C. 2601, et seq. Unpaid FMLA leave is designated as appropriate under the FLSA in DOLregulations, 29 C.F.R. §541.602(b).

26 29 C.F.R. §541.603(b)-(c)

27 20 C.F.R. §541.603(d).

http://www.dol.gov/elaws/esa/flsa/docs/volunteers.asp

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Journal HOME

Steven L. Schwarzberg, Kerry A. Raleigh, and Larry A. Strauss of Schwarzberg & Associates, andDavid I. Spector, Christopher S. Duke, Lorraine O’Hanlon Rogers, Arlene K. Kline, and Scott W.Atherton of Akerman Senterfitt, all collaborated on the CLE presentation that formed the basis for thisarticle. Rogers and Strauss edited the article.

This column is submitted on behalf of the Labor and Employment Law Section, Eric James Holshouser,chair, and Frank E. Brown, editor.

[Revised: 07-01-2009 ]

© 2005 The Florida Bar | Disclaimer | Top of page |

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Staff Management Self Audit

The Questions A large part of a client's impression, of your law firm will come from the actions of your staff. It is critical to your success that your staff is well trained and motivated to provide excellent service to the firm's clients. Check your policies and procedures against the following list of questions: Question – Staff Management

Yes

No

N/A

Do we clearly communicate expectations of performance to all firm employees?

Do we have a current office policy and current procedures manual?

Do we have written job descriptions for each support staff position?

Do we clearly communicate to employees how they will be evaluated and compensated?

Do we provide all employees, including lawyers, with a copy of the Bar Rules and help them to interpret how these rules affect law office operations?

Do we train employees in the ethical requirements of working in a law office environment and clearly communicate their limits and boundaries as support staff personnel?

Do we keep staff members informed and give them an opportunity to offer input regarding matters affecting them?

Do we properly supervise employees by reviewing their work? Do we set a good example for our staff by creating, implementing, and monitoring dependable office policies and

The Florida Bar’s Law Office Management Assistance Service (LOMAS) Staff Management Self Audit Questionnaire Page 2 Question – Staff Management

Yes

No

N/A

systems, (i.e., docket/work control, conflicts of interest, good documentation, etc.)? Do we encourage and motivate employees to take pride and ownership in their work?

Do we provide support and assistance for staff members in the handling of disrespectful, rude and otherwise out-of-line clients and others?

Do we keep our staff informed as to our whereabouts and schedule?

Do we provide a safe workplace/office environment?

The lawyers in the office must recognize the critical functions performed by staff in the office and acknowledge that this expertise is a necessary ingredient in the law firm's ability to serve its clients. Some lawyers who have never been law office employees themselves have difficulty supervising and motivating staff because they do not know how to look at issues from an employee's point of view. This makes it even more important to learn to listen to what the law firm staff is saying. Documenting expectations and communicating how the firm runs the practice, and the business, accomplishes many positive things in a law office. Here again, the Communication Process interrelates with another important business process, the Personnel Management Process. Law office employees must have recent, written instructions about how their jobs will be performed and management performance expectations.

• What their job is and is not. (Position descriptions). • How the firm and the partners want the employees to do their jobs—not a re-

hash of the procedures from the employee’s previous employer. (Processes and Procedures)

• Why does even the smallest law office need a Policy, Processes, and Procedures Manual? If the firm does not have a procedures manual and orientation training, employees will use what they already know to get the

The Florida Bar’s Law Office Management Assistance Service (LOMAS) Staff Management Self Audit Questionnaire Page 3

job done. What if the new employee’s last place of employment was an office of chaos?

• Limits and boundaries (No matter how much the support staff members have learned by experience, they are not the firm’s lawyers).

• Standards and conventions. Is there is consistency in what things, actions and functions are called, many tasks are made easier (e.g., records management, document management, staff training, etc.)

• Example: If an attorney is looking for a particular motion for summary judgment on the firm’s computer, will s/he have to look once for “motion for summary judgment” or will s/he have to conduct several searches: “MSJ,” “Mtn S/J,” “summary judgment motion,” etc. If there is consistency in our procedures, less time is wasted.

• How will the support staff will be trained and cross-trained? Cross-training is a critical on-going need for small to mid-size law firms that do not have “depth” in support staff ranks (e.g., both bookkeepers are unexpectedly unable to come to work).

• What is the culture of the office? • What potential is there for promotion? (be honest) • Support staff personnel should not be placed in the position of prioritizing

attorney work product. To do so is very stressful to the employee, moreover, the attorneys involved in such a situation are “asking for trouble.” • A common complaint from support staff is, “I don’t know what to do next

because it all needs doing.” Many people will not work (for too long) under these conditions.

• Lawyers should, as a matter of policy, discuss workloads, deadlines, and new assignments at daily or weekly meetings with their team members.

• The importance of documenting workflow and business processes is discussed on the DVD. How well does your office document the way the office works and is management accomplishing two important objectives: • When support staff are absent, written procedures can act as a checklist

ensuring that lawyers, substitute, on-call or temporary staff do not overlook duties that are normally handled by the absent staff person; and

• Written procedures enable new employees and temporary support staff personnel (who may have office experience, just not in your office) to be more useful, sooner.

• “It is arrogant to believe we can supervise others if we do not know what it is they do.” Attorneys should have a general working knowledge (not be an expert!) of all the staff duties and responsibilities in the law office.

• Performance Evaluations. How will management conduct performance reviews? What are the measurement criteria? How the support staff will be compensated?

The Florida Bar’s Law Office Management Assistance Service (LOMAS) Staff Management Self Audit Questionnaire Page 4

• Support staff compensation and performance measurement systems vary greatly from firm to firm. However, every law firm should conduct a performance and compensation evaluation at least once per year. • Employee reviews start with a good job description. How can performance

be measured if there are no minimum thresholds for performance and assigned duties? How can the law firm compare salary survey information if there are no written benchmarks?

• Job descriptions should begin with the skills everyone in the firm must have. From there, we begin to add requisite skills for the particular job. It is recommended that employees assist management with the development of the job description. In some instances, the employee can be asked to prepare the first draft. Job descriptions should be reviewed for accuracy every year, or whenever reorganization occurs or when a significant new tool is added to the firm’s resources (e.g., new software, etc.).

Add Job Description Forms Add Training Forms Add Termination Checklist Add Orientation Checklist Add Interviewing Dos and Donts Create Table of Contents Look for other HR forms to add for course materials

Building a Job Description

LOMAS SAMPLE POSITION DESCRIPTIONS

INTRODUCTION

LEGAL ASSISTANT / LEGAL SECRETARY

A Legal Assistant or Legal Secretary possesses broad-based specialized training in law office process and procedures above that of a clerk or receptionist. Legal Assistants/Legal Secretaries assist the lawyer in managing the individual law practice. Manage case-related projects and act as team leader to the other support staff personnel (e.g., records clerk, file clerk, services clerk, receptionist, data entry specialists, bookkeepers and the like) in the delivery of the work product. This is not a supervisory position; rather the incumbent must have a sufficient degree of knowledge and interpersonal skills to coordinate the firm’s resources resulting in the efficient, timely delivery of the attorney work product. A Legal Assistant or Legal Secretary:

• Monitors, and often maintains, the attorney and/or paralegal calendars on cases and other legal matters.

• Manages attorney calendars of non-client, but firm-related activities. • Manages task lists and contact databases to avoid duplication of entries. • Arranges courthouse appearances, meetings, mediations, arbitrations,

depositions, and other client matter related activities and creates a reminder scheme for same.

The work also includes:

• Telephone call management • Basic legal research or Internet research under attorney supervision • Act as backup, when necessary, to other key legal support personnel, e.g.,

reception • Monitor the attorney’s case list to ensure that all files receive proper attention,

and that all clients receive regular updates on their legal matters; • Monitor the accuracy of the case management databases and files • Processes documents and produce final drafts and other work in progress for

attorney review.

LOMAS SAMPLE POSITION DESCRIPTIONS

INTRODUCTION

PARALEGAL Paralegals have specialized legal training above that of the Legal Assistant or Legal Secretary. Paralegals are expected to assist the attorney in:

• Drafting legal documents under attorney supervision. • Maintaining the firm’s forms file. • Creating case notes. • Organizing complex legal files. • Indexing case/matter-related material, in either paper or electronic format.

This may involve the use of practice specific software. • Perform legal research under the attorney’s direction. • Help prepare attorneys for trials, significant hearings, and important meetings.

LOMAS SAMPLE SUPPORT STAFF EVALUATION FORM ADMINISTRATIVE/SUPPORT PERSONNEL PERFORMANCE EVALUATION Employee Name Job Title Evaluation Date Supervisor’s Name Supervisor’s Title Due Date

PART ONE: KEY JOB RESPONSIBILITIES In order of priority, list the top responsibilities of this position or attach the current job description.

PART TWO: REVIEW AND EVALUATION OF KEY OJBECTIVES List key objectives to be accomplished or maintained. Provide brief explanations that specify what is to be produced, or learned, and firm standards met or maintained (quality, quantity, cost, and timeliness). Discuss the mid-year progress review as well as this year-end evaluation. Note accomplishments, areas for improvement, and/or any new objectives. Example Objective: Client Service

Reviewer’s Statement

Example Objective: Master the features of the new telephone system and train others to use it properly.


Objective:


Objective:


Objective:


PART THREE: JOB PERFORMANCE

Instructions to the Reviewer: Identify positive job behaviors, which contribute to overall job performance. If a pre-selected behavior listed below is not applicable to this position, please indicate such by utilizing “N/A”.

List additional success factors that you believe are important in the space designated “Other.” Discuss each relevant job behavior, specifying both areas of strength and, if applicable, areas for individual and team improvement.

Administrative/Support Staff – Job Behaviors – Review and Evaluation 1. Planning & Organizing: Organizes the work day to achieve short- and long-term job objectives and deadlines; sets priorities and allocates time and resources properly.


2. Adaptability/Resourcefulness: Works effectively during periods of high activity, and with varying personality styles, to accomplish tasks; seeks out and utilizes available resources.


3. Judgment & Decisiveness: Utilizes information and logic to develop alternative courses of action when deciding upon the best strategy for a given situation; takes action in a timely manner.


4. Client Service: Actively listens and conveys understanding of clients’ goals within the scope of the firm’s representation of client matters and cases. Displays sensitivity to clients’ needs. Upholds the firm’s confidentiality policy.


5. Impact: Sets a good example, and creates a positive impression on others, gaining their respect and confidence; displays a positive and professional image.


6. Team Orientation: Accomplishes tasks working with others and being a good team player; recognizes how his/her decisions may impact others; seeks input from others.


7. Leadership and Initiative: Is a self-starter; seeks to influence events rather than just react; originates action; works with others to develop more effective ways to do the job.


8. Other (Please Define)






OVERALL PERFORMANCE EVALUATION

Consider what has been accomplished during the review period, and how the firm can help the employee to continue to develop additional skills, improve performance, or maintain optimal performance.

Demonstrated Strengths: Areas for Improvement: Using the following descriptions, please evaluate the overall job performance, selecting the description that most closely identifies the overall performance: _____ Exceeds Expectations: Performance and results frequently exceeded the position’s requirements and expectations. Written objectives were achieved. The employee’s efforts and contributions enhanced or improved the effectiveness of the team and the firm. _____ Achieves Expectations: Performance and results meet all position requirements and expectations. Written objectives were achieved within acceptable firm standards. There may have been some accomplishments that exceeded expectations and some areas where results did not fully meet expectations. Similarly, the performance behavior is generally consistent with position description for this job. On balance, this is a good performer. _____ Needs Improvement: Performance and results met some, but not all the job requirements and expectations. The need for further development and/or improvement is recognizable. Sustained progress and improvement are required. _____ Unacceptable: Performance and results are not acceptable. The position’s requirements and expectations have not been met. Performance must improve to an acceptable level or additional corrective action will be taken, up to and including possible discharge.

PART FOUR: INDIVIDUAL DEVELOPMENT PLAN

In conjunction with the support staff member, outline any necessary plan for additional training or performance improvement by acquiring new skills or new performance levels. Provide a timeline. Personal development and performance enhancement activities may include firm-sponsored in-house training and seminars, and may include on-the-job assignments, and employee self-development activities, etc. Be certain to take into consideration areas of demonstrated strengths and areas for improvement (Overall Performance) when developing this plan. Development Plan: Employee Comments:

APPROVALS REVIEWED BY:

TITLE: DATE:

EMPLOYEE SIGNATURE:

DATE:

(EMPLOYEE’S SIGNATURE DOES NOT NECESSARILY CONSTITUTE AGREEMENT WITH THIS EVALUATION)

Lawyer as Employer

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