EMPLOYMENT CONSIDERATIONS FOR SMALL BUSINESS 1 Trusted GC John R. Flanders, Attorney 2600 S. Lewis Way, Suite 103 Lakewood, CO

Contents 2 Introduction4-5 Hiring new employees 6 Conducting performance 7 reviews When alleged harassment occurs8-9 When employees invoke the ADA10-11 Writing an employee 12 handbook

Contents (cont.) 3 Discharging or laying off employees When to seek legal advice from a 15 qualified employment lawyer Thanks to K. Preston Oade and 16 and the Colorado Civil Justice League

INTRODUCTION 4 This is intended as a guide for Small Business to Avoid Employment Issues, including Employee Lawsuits. Colorado is an “at-will” employment state, BUT courts and lawmakers have created many exceptions. Employers of all types, large and small, for-profit and non-profit, routinely make common mistakes when dealing with employees. Let TRUSTED GC assist you in avoiding costly mistakes.

Intro (cont.) 5 These mistakes could eventually cost you tens of thousands to hundreds of thousands of dollars and untold hours in legal headaches. Disruption to your business, your time, and the time of your employees to deal with litigation (discovery and trial) is reason enough to do it right the first time. Here are some steps you can take today to avoid employment issues, including lawsuits:

When Hiring New Employees 6 Do: Create a written job description; Focus on essential job functions when interviewing and hiring; Only make promises you can and will keep. Don’t: Do not ask personal questions (marriage, age, pregnancy, sexual preference, etc.); Do not make job security assurances.

When Conducting Performance Reviews 7 Do: Document informal counseling; Counsel when the issue arises; State job responsibility and performance expectations clearly; Be honest and objective about employee shortcomings; This is difficult for some managers, so train your managers. Don’t: Do not wait until once a year to give feedback; Do not give undeserved positive evaluation; No evaluation is better than an inflated one.

When Alleged Harassment Occurs 8 Do: Listen to the “warning signs” (e.g. off color jokes and remarks, “I feel uncomfortable…”) for harassment or hostile workplace; Take all complaints seriously; Properly investigate and document all complaints (don’t allow an employee to tell you something, but “I don’t want you to do anything”); Prevent retaliation and/or the appearance of retaliation

Harassment (cont.) 9 Don’t: Do not allow foul or vulgar language in the office; Hug or touch employees; Comment on the physical appearance or attractiveness of employees; Allow dirty jokes in the workplace; Assume what you think is funny is funny to everyone.

When Employee Invokes the ADA 10 Do: Use the job description and performance measures; Focus on the essential job functions; Focus on the employee’s performance and conduct.

Americans With Disabilities Act (cont.) 11 Don’t: Do not “accommodate” by eliminating essential job functions; Do not concede the disability; Do not make decisions based on sympathy.

When Writing an Employee Handbook 12 Do: Determine if you really need it; Write only what is needed. Don’t: Do not use unrealistic or aspirational language; Do not imply that “cause” is required for discharge; Do not make promises the company can’t or won’t keep; Do not try to manage people with policies instead of training.

When Discharging or Laying Off Employees 13 Do: Read and follow your policies; Treat the employee with dignity and respect; Be honest about the reasons for the discharge; Create and keep pre-discharge documentation; Get and document the employee’s side of the story; Consider giving severance pay in exchange for a release of all potential claims.

Discharge (cont.) 14 Don’t: Do not act in the heat of the moment; Do not discharge any employee because of race, gender, national origin, religion, pregnancy, age, disability, or in retaliation for complaining or whistle blowing; Do not give inaccurate or sugar coated reasons for discharge; When multiple reasons exist for discharge, you may want to consider using only the simplest and best reason.

When In Doubt, Seek Legal Advice 15 This presentation is not and should not be taken as the final word on employment law. There is no way around it: employment law is complicated. Consult Trusted GC.

Thanks 16 A special thanks to K. Preston Oade from the law firm of Holme, Roberts & Owen and the Colorado Civil Justice League for this presentation.