Shareholders Matt Veech and Steve Keston presented an interactive discussion on employment law considerations from pre-employment and hiring through termination.

1. The Lifecycle of Employment
July 10, 2019

2. Steve Kesten
BoyarMiller Business Group Chair
Matt Veech
BoyarMiller Litigation Shareholder

3. PAGE
• Onboarding Employees
• Worker Classification
• Employee Agreements
• Attracting, Retaining, and Incentivizing Employees
• Employment Policies, Discipline, and Termination
3
Today’s Agenda

4. ONBOARDING EMPLOYEES

5. PAGE
• Background Checks
• Drug Testing
• Social Media
5
Onboarding Your Employee

6. PAGE
• Who performs the check – Employer or Agency?
• FCRA Requirements
• EEOC Considerations
• Statutory Limitations
• A note on Social Media
6
Considerations When Performing Background Checks

7. PAGE
• Why would you drug test?
• Who should be tested?
• At what stage do you test?
• Complications created by the growing trend of legalized marijuana
7
The Pros & Cons of Drug Testing

8. WORKER CLASSIFICATION

9. PAGE
• Lots of words: Contractor, Employee, Full-time, Part-time, Exempt, Non-Exempt…
• Pay – 1099 or W2???
9
Worker Classification

10. PAGE
1099 Contractor vs. W2 Employee
• Why this matters?
• “Control” Test and “Economic
Realities” Test
• Considerations when classifying an
employee as a contractor
• Worker’s Compensation Act
Protections
• Affordable Care Act Exposure
10

11. PAGE
• Why this matters?
• Current Salary Basis Requirements
11
Employees…Are They “Exempt” or “Non-Exempt”?

12. EMPLOYEE AGREEMENTS

13. PAGE
• NDAs and Confidentiality Agreements
• Non-Competition and Non-Solicitation Agreements
13
Use of Employee “Agreements” to Protect the Employer's Business
Interest

14. ATTRACTING, RETAINING, AND
INCENTIVIZING EMPLOYEES

15. PAGE
What are your options?
1. If your entity is a corporation:
● Shares
● Restricted Shares
● Options
• Qualified
• Non-Qualified
● Phantom Equity or SARs
● Bonus Plan
15
Attracting, Retaining, and Incentivizing Your Team Through Equity

16. PAGE
What are your options?
2. If your entity is taxed as a Partnership (LLC, LP):
● Units
● Restricted Units
● Options
● Phantom Equity
● Profits Interests
16
Attracting, Retaining, and Incentivizing Your Team Through Equity

17. PAGE
Corporation – Shares / Restricted Shares
What are they?
Advantages / Disadvantages
● Tax implication upon issuance
● Dilution
● Tax upon sale
17
Attracting, Retaining, and Incentivizing Your Team Through Equity

18. PAGE
Corporation – Options – Qualified / Non-Qualified
What are they?
Advantages / Disadvantages
● Tax implication upon issuance
● Dilution
● Tax upon sale
18
Attracting, Retaining, and Incentivizing Your Team Through Equity

19. PAGE
Corporation – Phantom Equity / SARs / Bonus Plan
What are they?
Advantages / Disadvantages
● Tax implication upon issuance
● Dilution
● Tax upon sale
19
Attracting, Retaining, and Incentivizing Your Team Through Equity

20. PAGE
Partnership – Units / Restricted Units
What are they?
Advantages / Disadvantages
● Tax implication upon issuance
● Dilution
● Tax upon sale
20
Attracting, Retaining, and Incentivizing Your Team Through Equity

21. PAGE
Partnership – Options
What are they?
Advantages / Disadvantages
● Tax implication upon issuance
● Dilution
● Tax upon sale
21
Attracting, Retaining, and Incentivizing Your Team Through Equity

22. PAGE
Partnership – Phantom / UARs / Bonus Plan
What are they?
Advantages / Disadvantages
● Tax implication upon issuance
● Dilution
● Tax upon sale
22
Attracting, Retaining, and Incentivizing Your Team Through Equity

23. PAGE
Partnership – Profits Interests
What are they?
Advantages / Disadvantages
● Tax implication upon issuance
● Dilution
● Tax upon sale
23
Attracting, Retaining, and Incentivizing Your Team Through Equity

24. EMPLOYMENT POLICIES, DISCIPLINE,
…AND TERMINATION

25. PAGE
• When do you need a handbook?
• Why do you need a handbook?
25
Developing and Improving Your Employee Handbook

26. PAGE
• “At-will” Employment Provision
• Equal Employment Opportunity (“EEO”) and Anti-Discrimination and Harassment Policies
• Company Property, Computer Systems, and Internet Usage
• Pay and Time Keeping Policies
• Workers’ Compensation and Injury Reporting
• Drug and Alcohol Testing
• Disciplinary Actions
26
The Typical Employment Policies to Include

27. PAGE
• Remote Work
• Maternity/Paternity Leave
27
Other Employment Policies to Consider

28. PAGE
• Follow your Policies
• Be Consistent
• Be Direct and Honest
• Be Clear
28
Tips for Dealing With Discipline and Termination Situations

29. Questions?
Matt Veech | BoyarMiller Litigation Shareholder | mveech@boyarmiller.com
Steve Kesten | BoyarMiller Business Shareholder | skesten@boyarmiller.com
Tell us what you think!
#ALawToThinkAbout @BoyarMiller