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Direct, easy to follow employment advice to keep your employees working and your business thriving.
KEW provides employment advice to businesses seeking guidance regarding wage and hour laws, hiring, discipline, termination, employment contracts, employee handbooks and more.
The decision to hire employees is a big one, often accompanied by fear of how to go about it. The most basic requirements include setting up an unemployment insurance account, obtaining worker’s compensation insurance, obtaining the proper tax forms, and ensuring that payroll is taking out the proper deductions. Unemployment insurance is obtained through the Department of Workforce Development, and information for employers can be found here. Worker’s compensation insurance is obtained through a private insurance company, and most insurers of businesses will also provide it. In addition to the W-4 and WT-4, employers need to have an employee complete an I-9 which shows an employee’s authorization to work in the U.S. More information about the I-9 can be found at KEW Tips: Common I-9 Mistakes Made by Employers.
Businesses are often directed to KEW for advice regarding an employment contract, and whether it is necessary or recommended, and if so what it should say. An employment contract can be a huge asset to certain businesses, and completely unnecessary for other businesses. First off, a business can have employees sign an employment agreement and still have employees employed “at-will.” At-will employment means that the employer can terminate an employee at any time for any non-discriminatory reason, and an employee can leave employment at any time. A contract can change the nature of an at-will employment situation, for example if the contract states that the employment is for a specified period of time.
A common question we receive is whether a business should have their employees sign a “noncompete agreement.” This is often a generic term used to refer to an employment agreement. But, an employment agreement can contain much more than just a non-competition clause (noncompete clause). A non-competition clause (noncompete clause), non-solicitation clause and confidentiality clauses can be beneficial for certain businesses seeking to protect their business. However, each type of clause needs to be narrowly tailored and carefully drafted in order to be held up in a Wisconsin court. Often, a non-solicitation and confidentiality clause are a nice combo to protect the business, and the non-competition portion is not necessary. Other times, a non-competition clause may be the most beneficial.
Employee Handbooks are a great tool for employers to memorialize company policies so that employees can clearly understand company expectations. When a business owner contacts KEW to discuss the creation of an employee handbook, a KEW attorney will speak with the business owner and ask questions regarding the business’ policies and approach on various aspects of running their business. For example, a KEW attorney will always ask about discipline policy. Does the business favor a strict three strikes approach such as termination after the third incident? Or, would something a bit more flexible be a better fit for the business? One of the most important aspects of memorializing an employee handbook is making sure that the written policies mirror the business’ actual policies. This underscores a danger of using a non-tailored employee handbook found from the internet – it could lock the employer into policies that it doesn’t follow, such as allowing a 12-week paid medical leave.
Disciplining and terminating an employee can be tricky, especially when extenuating circumstances make a discipline situation more complex. For example, business clients have approached us with an employee that is failing to perform the basic functions of a position, but the business feels bad for the employee because the employee, recently got divorced and is struggling financially, or perhaps when an employee is out on medical leave, the business realizes the employee made several costly mistakes. While disciplining or terminating an individual in each of these two examples may involve more work and documentation, such an approach is not impossible. Keeping an employee that doesn’t perform for a business is likely only going to add to a business’ problems later on.
Managing employees is often the most challenging component of running a business. Business owners often grapple with wanting to keep employees happy while also making legal, smart and effective decisions for their business. KEW serves as a resource for employer clients with tricky employee situations, and provides guidance based on experience and legal knowledge. A few examples of questions brought to us by employer clients are as follows:
Clients have reported searching something along the lines of “difference between employee and independent contractor” or “can I hire an independent contractor or employee” so frequently that we wrote a blog article about it: Employee or Independent Contractor? Spoiler alert: it’s complicated.
As the blog article points out, several different tests exist to determine whether someone is an employee and independent contractor, and a worker can be an independent contractor under the IRS analysis and then an employee under a worker’s compensation analysis. This explains why clients often come to us confused after hearing from an accountant that their worker is an independent contractor only for us to tell them that isn’t quite the truth. Calling a worker an independent contractor when actually an employee is called a “mis-classification” and KEW really wants to help you avoid this mistake as it can be costly – think back taxes and penalties.
Sometimes, even if an employer has all their ducks in a row, and follows all recommended protocol, an employee still files some type of employment related claim or action against the employer. This could be an employment discrimination claim, a retaliation claim, wage and hour violation or something different. Filing a complaint through an administrative agency such as the Wisconsin state agency, the Equal Rights Division in Wisconsin, or the federal agency, the Equal Employment Opportunity Commission is of no cost to the complainant and involves filling out a simple form. Because of the ease with which a complaint can be filed, they are quite common, even against responsible employers, or employers facing a complaint without having had the benefit of having competent legal guidance ahead of time. In any event, KEW is ready to assist businesses with aggressively defending a complaint or working towards a resolution, depending on the desires of the client. More about civil litigation can be found here.
Applicable employment laws depend on industry and payment structure of individual employees. For example, a business accepting government contracts will need to be aware of prevailing wage issues, including overtime calculations. A business that pays their employees piece rate, common for a salon or massage practice needs to know information about payment of employees for work outside provision of specified services such as employee meetings. All employers need to have certain employment posters at the worksite (more on employment poster scams at KEW Tips, Don’t Be Scammed by Employment Posters!), and all employers are subject to some type of record keeping requirements. Tracking the multitude of employment laws can be a challenge, but the attorneys at KEW are well versed at navigating these complex legal waters. KEW can help protect your business by working with you to determine the mandates of various laws and providing you with tools to avoid problems in the future.
Some compliance issues that come up frequently for our clients:
Complaints and or/audits by administrative agencies such as the Department of Workforce Development (DWD) through an unemployment insurance audit and the Department of Labor (DOL) with a wage and hour audit, to name a couple, can pop up at any time. Even the most caring and conscientious of employers can have an employment law violation, and not realize it. KEW works with businesses to respond to agency audits and complaints.
KEW represents individuals at varying employment levels and industries and often represents individuals faced with tricky work situations including harassment and discrimination, and questions regarding whether to contact Human Resources. In addition, KEW attorneys advise clients on the enforceability of restrictive covenants in their employment agreements. Oftentimes, a client comes to us that signed an employment agreement that appears to be incredibly restrictive, not allowing the client to pursue any type of employment where the employee lives. A close reading of the agreement can reveal weaknesses in the contract that might allow an employee more opportunities for career prospects than originally anticipated.
For clients in executive positions, we pay close attention to each client’s personal and professional goals, and use such information along with our experience to advise our clients. We work with our clients to review not only the restrictive covenants and other contract provisions, but also to assist in evaluating the stock options and other profit sharing components and advise with regards to negotiation on those matters.
Attorneys Jessica M. Kramer and Leslie Elkins handle employment matters at KEW. For information as to whether KEW may be able to assist you with your employment related matter, contact KEW at info@kewlaw.com or 608-709-7115.
2801 Coho Street, Suite 300, Madison WI 53713
608.709.7115 • info@kewlaw.com
After contacting KEW, you will hear from a KEW staff member who will ask questions to gather information for a conflict check and to determine if KEW can assist you. KEW may ask your name, contact info, business name, names of additional business owners, the identities of any adverse parties, any deadlines, and a brief description of why you are contacting KEW. Next, KEW will conduct an internal conflict check and determine the best way to proceed. Finally, you will be contacted by a KEW staff member who may ask for additional information and documents, book you an appointment with a KEW attorney, and provide instructions. Alternatively, if we cannot assist you, we will do our best to provide you with a referral.
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