July 24, 2013

Employment MATTERS:  processes and compliance

This month we look at how to protect your business from costly missteps in the area of hiring and managing employees. We will consider how to tailor policies and procedures to ensure they are up-to-date, legal, and reflect your actual business practices to avoid costly mistakes down the line.

Join us to learn how to create simple systems to streamline and limit risk in your employment processes including how to:

  • Plan your hiring with a view toward the future
  • Define employee roles to maximize breadth and limit overlap
  • Prioritize the “nice to haves” versus the “need to haves” within the organization
  • Identify outside resources to make things easier (even when funding is tight)
  • Create culture and policies that work for your company
  • Implement employment contracts and policies that protect the company and its assets

Location: The Partners Group

Executive Education Center Lincoln Executive Center II- 4th Floor

14432 SE Eastgate Way, Suite 400 Bellevue, WA 98007

Time: 7:30am – 9:30am

Cost:        $100

*Free to Equinox clients and guests

Register for this event


Equinox Business Law Group PLLC

Resourceful HR

Should You Access Employees’ Social Media Accounts?

Michelle Bomberger’s article “What’s the Password?” on this topic was recently published in Seattle Business Magazine.  Here’s an excerpt:

Scoping out an employee’s or a potential employee’s online social media life has become a commonplace practice for employers.  Many employers believe that sound reasons exist for requesting access to personal online information.  On the other hand, requesting a Facebook password and other personal access codes is stepping across lines that many think should not be crossed.  

Before entering into these murky waters, employers should tally the benefits gained by accessing employees’ personal online accounts; compare these benefits with the potential negative consequences that could include negative publicity, ethical issues, and exposure to a host of legal issues…

Read the entire article at Seattle Business Magazine.

September 26, 2012


You’ve got great  employees on board and you want to be sure to keep them.  Join us for a seminar highlighting key compensation tools available to help you retain your best people.  You’ll leave this program understanding:

  • How compensation drives employee behavior
  • When cash incentives work and how to structure them
  • What non-monetary compensation tools such as stock and deferred compensation are available and the pros and cons of each
  • Other benefits important to compensation packages that drive employee loyalty and retention

Location: The Partners Group (formerly Baldwin Resource Group)

Executive Education Center
Lincoln Executive Center II- 4th Floor
14432 SE Eastgate Way, Suite 400
Bellevue, WA 98007

Time: 7:30am – 9:30am

Cost:        $100

*Free to Equinox clients and guests

Register for this event

More Information and Registration: contact@equinoxbusinesslaw.com or 425-250-0205


Catherine Dovey, Founder & Principal, Compensation Works.  Catherine Dovey CCP, SPHR, has worked in human resources for more than 20 years. Compensation and pay systems are her primary specialty. Depending on client need, Catherine will partner with other experts for specific projects.

Catherine has designed and managed base pay plans, incentive plans, performance management systems and job evaluation systems. Her extensive experience includes union and non-union environments in private companies and nonprofit and public-sector organizations.
Industries served range from finance, health care and food processing to advertising, gaming and manufacturing. SeeClients for more information.

Credentials include a Master’s of Business Administration from Washington State University, Certified Compensation Professional (CCP) through WorldatWork (formerly the American Compensation Association) and Senior Professional in Human Resources (SPHR) through the Human Resources Certification Institute (HRCI)

Michelle Bomberger, Managing Attorney, Equinox Business Law Group PLLC. Michelle Hayden Bomberger, founder and Managing Attorney of Equinox Business Law Group PLLC, is an experienced businesswoman turned lawyer.  Michelle began her career in business as a consultant with Ernst & Young LLP serving Fortune 500 clients and fur-ther deepened her knowledge of business operations as a Senior Manager of Auditing Services at Cingular Wireless.  Michelle founded Equinox in 2005 with a mission to help business owners and CEOs find balance in business.  Michelle attended graduate school at Northwestern University in Chicago, obtaining a JD from the School of Law and an MBA from the Kellogg Graduate School of Management.  She has an undergraduate degree in Finance and Computer Applications from the University of Notre Dame.

Employment Best Practices – A Legal Perspective

When looking at best practices in hiring and firing, we consider how to get those right people on board and how to end the relationship when things aren’t going well.   Both facets of this process are difficult but some key practices can make things much simpler.

  1. Plan ahead.  Anticipate your hiring needs a year in advance.  Consider what your next hire looks like now, so that when you’re ready to bring them on board, you’ve already got much of the work done.  This front-end work includes a job description and key characteristics of the person as well as your interview and hiring process for the new positions.  For example, are you using testing as part of your hiring process?  In addition, you should consider what, if anything, is different about this hire from others you’ve hired.  Do you need additional policies, rules, or restrictions?  The policies applicable to a professional providing services directly to clients will differ somewhat from those necessary for an office administrator or a sales person.  Know what your needs are in advance of the hiring process.
  2. Set clear expectations.  When bringing a new person on board, have clear expectations for their performance.  Some of these expectations are inherent in the job description and employee manual or handbook.  In addition to setting expectations for the job overall, consider having the employee create a 90 day plan to be sure that you are both aligned with the goals and expectations of the position.  You should also have a good idea of when to know the employee isn’t working out.  In some cases, this is a discussion with the employee upfront and in other cases not.   Having an objective set of metrics will do you a world of good when trying to make the emotional decision to let someone go.
  3. Protecting the Business.  There are a number of key protections your business should implement at the time an employee is hired.  These include non-solicitation, confidentiality, and technology policies.   Non-solicitation provisions are often confused with non-compete provisions.  Non-solicitation provisions restrict an employee from soliciting an employee or client (or prospective client, vendor, contractor, etc.) of the company to leave the company or alter their relationship with the company.  These are generally enforceable because they protect a legitimate business interest and keep an ex-employee from “stealing” employees or clients when they go to work for a competitor.  The non-compete, on the other hand, tends to restrict the employee from working in his or her field, a concept which the courts have traditionally frowned upon.    Confidentiality is another critical protection for the business.  Much of what the employee has when he or she leaves is the knowledge about the processes and clients of the company.  Having a strong confidentiality agreement makes it more difficult for employees to disclose such information to a future employer.  Finally, technology policies have become critical to protecting a business’ intellectual property and assets.  Written rules as to how company technology can be used and how the company’s documents or other information can be shared will allow control over the dissemination of such information.   These provisions should apply not only during the term of employment but also for some period following the termination of employment.
  4. Performance Reviews.  Monitoring employee performance is a necessity and implementing tools that allow you to do so is important.  However, the traditional performance review process doesn’t work for everyone.  When implementing a tool to evaluate an employee’s performance, consider your goals and the behaviors you want to reward.  What is the purpose of the performance review for your organization?  Remember that the review sets a certain expectation with the employee about their future with the company.  Even in an employment at-will state like Washington, documentation of glowing performance can play against you in a situation where you’ve had to let someone go.  This doesn’t mean you shouldn’t do them nor does it mean you should not give glowing reviews.  It means you must understand how they fit into your organization and structure them to help your company achieve certain goals.
  5. Termination.  When taking on the ugly task of having to terminate an employee, it’s important to have your documentation in order.  In an at-will state, you may terminate an employee for no reason at all unless there’s an agreement between you and the employee stating otherwise.   Remember, this “agreement” does not need to be in writing.  If the employee can show that they were led to believe that their employment would continue for some period, they might prevail.  This is one reason why I am not a proponent of “probationary periods.”  A probationary period suggests employment for at least that time and possibly a continued employment beyond that time if the employee’s performance is acceptable.   Again, you don’t have to have a reason to terminate and you don’t have to tell the employee why he or she is being terminated.   Terminate employees in a face-to-face environment and in a factual manner.  Be prepared to ask for any technology or other property of the company that must be returned and to remind them of any obligations they have following termination.  These requirements should also be summarized in a letter notifying them of the termination of employment.   There’s no requirement to have a witness; however, it’s prudent to have someone available to support you if you believe the employee will be aggressive or violent.

Planning, awareness, and sensitivity all play into the best practices in employment.   Put in place documents that reflect your actual practices, so that you are confident that you’re covered when  employment situations eventually arise.

Business Continuity – Despite Disaster

When business owners hear the term “business continuity,” they most readily think of what to do in the case of a physical loss such as a fire, flood or earthquake.  These physical losses are important risks to protect against but “business continuity” planning goes beyond that.  Business continuity planning must also address the impact of losing a key person in the business or the potential risk associated with reliance on key vendors.

PHYSICAL LOSSES: Generally, physical assets are protected using insurance.   In the case of a theft, fire, flood or other loss, the insurance company covers the costs (minus the deductible) for any losses including replacement, litigation, or other expenses incurred.  That being said, other key practice issues arise that insurance does not address.  The company must maintain backups and key procedures to help it get back up and running in the case of a loss.  An example would be the theft or loss of a laptop computer.  Insurance will pay the cost of replacing the laptop itself and may also cover the cost of obtaining new template documents or other key tools.  The insurance may assist with issues of breach of confidentiality due to the files being lost.  The insurance, though, probably would not be sufficient to recreate the lost client files.  The attorney needs to have a system, such as a backup process, to protect the firm from losing this data permanently.

PEOPLE LOSSES: The people of a company are often its most essential assets.  People losses can occur due to planned events such as retirement or unplanned events such as death, disability, voluntary termination, or involuntary termination.  It’s also important to think of these scenarios for both owners and employees of the company as a people loss in a small business can have a dramatic and chaotic effect on the company’s operations and its clients.  Without proper planning, these scenarios could result in unanticipated consequences and create chaos within the company and with the company’s clients.   As the leader of your company, you must consider ownership, management and client transition issues and put a plan in place that minimizes disruption for all the stakeholders involved.

In small companies, employees serve a critical role in keeping operations moving. If one of those employees fails to show up to work one day, how will the company operate?  The impact on the owners and employees of the business is significant and will dramatically impact operations and revenues.  The company’s best planning is to have a procedures manual and a plan for who would fill the role of the departing employee.  The company may have other employees take over certain activities.  Other activities may require a contractor or administrator to come in on an interim basis to fill those roles.  Recognizing this vulnerability and planning for the worst will help the business continue to operate in the case of a people loss.

THIRD PARTY LOSSES: Another risk area for business is if a key vendor fails to perform.  For example, many small companies contract with IT services that are “cloud” based or hosted elsewhere.  If that vendor closes its doors or has a major catastrophe in its facility (i.e. fire, flood, earthquake), the company is at risk. Similarly, if a company is reliant on a particular supplier or customer, the business is at risk of any failure by the other company.  When working with vendors that are critical to the company’s operations, the business must understand what vulnerabilities exist and how they can be mitigated.  We all know that even a short-term internet or phone outage severely limits our ability to do business effectively.  Imagine if the outage existed for weeks or resulted in a permanent loss of information.

Planning for events beyond the fire and flood is critical to business continuity.  By considering the risks to the business in the areas of physical, people and third party dependencies, a business can create plans to successfully work through these unexpected events.