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Asha Wilkerson

Workplace Privacy? Is There Such a Thing?

April 26, 2016 by Asha Wilkerson 2,889 Comments

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I get questions all the time from employers and employees asking about workplace privacy issues. The employees want absolute privacy, and the employers say, “yeah, right!”

What it comes down to is how carefully the privacy policies in the employment handbook are crafted. An employee’s reasonable expectation of privacy is directly tied to the expectation the employer creates for them.

So, can an employer search my personal belongings at work?  The answer is yes, they probably can.  If the employer has a policy that states desks and lockers are provided for the convenience of employees but remain the sole property of the employer, they may be inspected along items found inside the lockers or desks before, during, or after an employee’s shift.

In addition, any electronic devices such as cell phones, computers, or pagers that the employer provides come with zero expectation of privacy. That means, if an employee is using a work cell phone to conduct personal business, the employer has the right to search and inspect that cell phone and to use anything they find on that phone against the employee.

I have also had questions about police officers wanting to search an employee’s workstation or locker. The employer has no obligation to let the officers search the workstation, but they have every right to consent to the search so long as the privacy policies make it clear that the items searched are company property.

If you’re an employer and want to manage your employees’ expectations of privacy, carefully craft a privacy policy and disseminate it widely throughout the workplace. If you’re an employee, you really should have no expectation of privacy in your workplace when it comes to your physical items.

If you have any questions about your workplace policies, do not hesitate to give me a call or shoot me an email and we’ll find a legal solution to your problem.

Filed Under: Business

Helpful and Lawful Interview Questions

February 23, 2016 by Asha Wilkerson 2,856 Comments

Now that you’ve decided it’s time to hire new employees, how do you go about interviewing potential candidates? With so many laws defining acceptable hiring practices, it can be confusing to know which questions are permissible and which questions are unlawful. Before you get started, check out Three Tips for Hiring Employees in the New Year and then follow these sample interview questions to get you the information you really need while staying out of hot water.

 

Subject Lawful Unlawful
Age Any questions verifying that the applicant is old enough to work. How old are you?

How many years will you work before you retire?

 

Religion Questions are lawful so long as they are directly related to the applicant’s job requirements. Any questions about religious beliefs or practices that are not directly related to the applicant’s job responsibilities.
Gender/Sexual Orientation None. Men usually do this job; do you think you can handle it?

How do you feel about supervising women in this position?

Any questions about sexual orientation or gender identity.

Education Do you have a high school diploma or the equivalent?

Do you have a university or college degree?

What year did you graduate from high school?
Race or Color None. So, you speak Spanish, are you Mexican?

 

You don’t look American, where are you from anyway?

Language Inquiring about an applicant’s language skills is permissible so long as it is related to the job’s functions, i.e., Do you speak X language fluently? You’re Brazilian, right? Do you speak Portuguese?

 

You’re from Quebec, but you don’t speak French? Why not?

Criminal Background Inquiring about an applicant’s conviction record may be permissible so long as it is job-related. Asking about an applicant’s criminal history to make an employment decision.
Military Background Questions are lawful so long as they are directly related to the applicant’s job requirements. How were you discharged?

What do you think about X war?

Marital or Family Status Requesting such information may be lawful if it creates a preference for relatives of current employees. Are you married?

Do you have kids?

Is your partner a man or a woman?

Health & Physical Abilities Questions are lawful so long as they are directly related to the job function, i.e., The job will require you to lift a minimum of 15 pounds; will that be a problem?

If the applicant has indicated that he or she needs an accommodation, the questions must be related to the request for an accommodation.

Do you take medicine?

What kind of medicine do you take?

How is your health?

If you have any questions about what is lawful or unlawful, contact an employment law attorney in your area to help guide you on your way.

Filed Under: Business

3 Tips for Hiring Employees in the New Year

February 9, 2016 by Asha Wilkerson 5,492 Comments

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You can have the best strategy and the best building in the world, but if you don’t have the hearts and minds of the people who work with you, none of it comes to life.  -Renee West, Luxor and Excalibur Hotel

 

Hiring new employees in any business can be a challenge, but hiring employees for the very first time can be especially challenging.  Finding the right fit culturally and professionally requires some forethought by the employer to determine personality and what skills will actually be a good fit and benefit the organization.  Take the following suggestions into consideration before you start the interview process.

1. Make a List of the Essential Job Functions

Once you’ve discovered that it is time to expand your team of employees, spend some time thinking about the list of qualifications you need the new hire to meet.  Make a list of absolute qualifications that the candidate must have and then a list of bonus qualifications that will help set candidates apart.  Be sure to double-check your lists to ensure that they are not unlawfully discriminatory.

Discriminating against an employee or a job applicant based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information is unlawful under federal and state employment law.

If you are unsure about the kinds of questions that are lawful or unlawful, contact an employment law attorney in your area to  help walk you through the process of fine-tuning your hiring practices and make them compliant with federal regulations.

2. Determine What Will Make an Employee Successful in Your Organization

Each organization is unique and employees require a specific skill set to excel within your particular business.  Take a look at the employees that you consider to be successful in your organization and look for those characteristics in the job applicants.

Keep in mind that soft skills are often a necessary component to success within a company, but they are frequently overlooked in the interview process.  How will the candidate interact with your customers?  What problem solving skills do they have?  Will they become easily frustrated?  These are all important factors that may not come across during the resume review.

3. Conduct a Practical Interview

One of the best ways to determine whether or not a job candidate will be able to preform the work you’re hiring them to do is to administer a practical exam during the interview process.  Ask the candidate to look at a particular problem that occurs frequently in your organization and ask them how they would go about solving it.  There doesn’t have to be one right answer, but watching the job applicant to work through a problem that he or she will have to handle on a regular basis can be quite informative to you as the employer.

If you are unsure about the best hiring process to use in selecting new employees, reach out to a local employment law attorney or a hiring coach to help you design a process that works for your organization. The time you spend up front getting it right will undoubtedly help the success of your organization.

Check back soon for our list of Useful AND LAWFUL Interview Questions.[/vc_column_text][/vc_column][/vc_row]

Filed Under: Business

5 Contract Terms You Need to Know, Now!

January 12, 2016 by Asha Wilkerson 103 Comments

[vc_row][vc_column][dt_fancy_title title=”khsta.org” title_align=”left” title_size=”small”][vc_column_text]Contracts are the lifeblood of business from lease agreements and product purchases to service agreements.  Contracts govern nearly all business-to-business transactions and a bad contract can cost you money and put your business at risk.  A well-drafted contract, however, can be your saving grace in a dispute.  Continue reading to learn about 5 specific contract terms you must know now.

“A verbal contract isn’t worth the paper it’s written on.” -Samuel Goldwyn

 

1. Parties

Naming the legal entity that is responsible for carrying out the contract is essential to enforcing the contract if something goes wrong.  If the business is responsible for the contract, look to see that you signed the contract as a representative of the business instead of accidentally signing yourself up for personal liability.  Of course, if you are a sole proprietor, you will be personally responsible for the company’s debts, so make sure your form an entity to give you an added layer of protection.  Check to see how the other party signed the contract as well.  You certainly don’t want any surprises later if you learn that the party you’re seeking to enforce the contract against is not obligated to perform.

Getting the contract terms right when you’re doing business is not only important when conducting business, but it can have lasting financial consequences if you don’t use them correctly.  In the last post, we talked about naming the right parties; this week’s contract phrase is Payment Terms.

2. Payment Terms

For most business owners this is the most important term in every contract. When reviewing your payment terms pay close attention to when payment is due and any penalties associated with late payments as they may increase the amounts owed.  Also take note of any conditions to receiving payment, such as special billing forms, waivers, or other documentation required to secure payment.

If you’re engaging the sale of goods, contracts are particularly important for your business.  Not only do contracts hold the other party accountable, but they let you know what performance is expected of you as well.  The contract term that sets the level of expectation for performance is up next.

3. Warranties

The warranty provisions govern what level of performance you should expect from a certain service and what the protocol is if the product or service does not perform as it should or is defective.  Know the length of your warranty; whether or not it is consistent with state law minimums; and the scope of the coverage the warranty provides.

Now that you know about Parties, Payment Terms, and Warranties, now is a good time to review some of your existing contracts with a new eye for the details.  Stay tuned for our last two contract terms coming your way soon.

If your business uses contracts on a regular basis, understanding the terms and conditions of the contract is a must.  You definitely don’t want any surprises!  Over the past few weeks we’ve learned about Parties, Payment Terms, and Warranties and the important role they play in using contracts effectively.

4. Termination Clauses

Termination clauses may have very specific procedures for terminating a contract.  For example, the business that is required to perform may have an opportunity to cure the problem, or may require written notice of the intent to terminate within a specific timeframe. By failing to follow the procedure detailed in the contract, you may find yourself in breach of the contract and subject to additional penalties, or worse, stuck in a contract longer than you desire.

Don’t forget to double-check your contracts for the termination clauses.  Know and understand what your obligations are as well as your rights for terminating a contract.

The final term in our contract term series is here!  We’ve covered Parties, Payment Terms, Warranties, and Termination Clauses and now that you know what they mean, it’s time to put that knowledge to use.  We have one more term for you to round out the series and it is a good one!

5. Indemnification

This is the most loved and hated word in all of contracts, depending on which side of provision you are on.  The indemnification provision is the clause that governs who you may have to defend or hold harmless in the event of a dispute or claim.  Be mindful of how far your indemnification obligation extends, and to what type of claims, costs, fees, and expenses this obligation includes.   Carefully note whether the indemnification obligation extends beyond your direct contractual relationship and whether or not the indemnification provision covers personal injury, products liability, property damage, or patent infringement.  Additionally, confirm whether or not your indemnification obligation includes attorney’s fees and other litigation expenses.

It may be difficult to keep all of the contract terms clear at first, but if you only take away one thing, take this: all contracts are negotiable.  The first step, however, is to understand the basic principles behind the provisions and to be knowledgeable regarding modifications and their effects on your business.[/vc_column_text][/vc_column][/vc_row]

Filed Under: Business

3 Reasons Why You Shouldn’t Be a Sole Proprietor

November 24, 2015 by Asha Wilkerson 2,816 Comments

This year is winding down and I’m willing to bet you’ve already got big plans for 2016. Maybe your plans even include forming a new business! That is awesome!

As a new business owner, one of the first and most important decisions you will face is how to structure your business.  You have your pick between a sole proprietorship, a partnership, a corporation, or a limited liability company. Each structure has its advantages and disadvantages, and each should be given consideration before you open your business to the public.  However, sole proprietorships, where the owner and the business are one single entity, have recently become a popular trend because of their minimal start up costs, easy management, and rewarding sense of independence.  While these benefits may sound appealing, here are 3 reasons why you should reconsider being a sole proprietor:

1. High Degree of Liability
Because the owner and the business are indistinguishable, business creditors can make claims directly against the owner.  Thus, a sole proprietor is responsible for any and all debts that the business incurs, and if they cannot fulfill the debt, then creditors can go after the sole proprietors personal funds and property.  Debts taken on by corporations and LLC shareholders, on the other hand, usually live and die with the company.

2. Limited Ability to Raise Capital
Only one owner is allowed in a sole proprietorship, so it cannot sell shares or interests in order to raise capital like a corporation.  Also, banks generally lend less to sole proprietors and subject them to much more scrutiny.

3. Self-Employment Tax
All the earnings of a sole proprietorship are subject to the IRS self-employment tax.  Corporations, on the other hand, benefit from more lenient tax regulations and a large number of tax write-offs.  Thus, in a sole proprietorship, the entire earnings will be taxed twice: once for self-employment taxes, then again for normal income tax purposes since the business and owner are indistinguishable.  This can result in thousands of dollars of hard earned profit being taxed in excess.

Keep your mind open when thinking about a business structure, do not base your choice on just cost and ease.  Also, if you have a sole proprietorship already and face some of these problems, then don’t worry, you can always change the company structure and reap the rewards!

Filed Under: Business

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