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OK at Work, hosted by Offit Kurman attorneys Russell Berger and Sarah Sawyer, is a weekly podcast that discusses current events and legal issues impacting business owners. From updates on the ever-changing employment law landscape to the risks and benefits of integrating AI into your workplace, subscribe to stay up-to-date on issues and events that may impact you and your business.
Sarah Sawyer: Welcome to you this
week's OK at Work with myself Sarah
Sawyer, my colleague Russell Berger
both attorneys at Offit Kurman.
And today we are talking about when maybe
a business owner doesn't get it exactly
right the first time and they're having
to figure out a way to fix a legal mistake
they might have made, correct course.
We see this a lot with employment
policies, for instance, and, different
things they might have put in place.
Maybe put something in place
that's not enforceable.
Maybe you haven't accounted for
the law and so you're already off
and running, doing things, making
mistakes, and then you find out that
it's a mistake and it's a problem.
And you've Got to unwind it and it's
a little bit challenging sometimes to
do that and can be quite intimidating.
I know I've had clients sometimes who
feel pretty intimidated by that fact
because there's a little bit of an
emotional component, I think, as well
to realizing you didn't do something
correctly and that you need to fix it.
So what are some things that business
owners should be thinking about when
that moment of realization happens either
through talking to council, reading
an article, something playing out?
Where do business owners begin, Russell?
Russell Berger: Yeah.
And to piggyback on what you said, I think
a lot of the times business owners learn
about mistakes by getting sued for them.
And maybe being sued by one employer
or one instance, but realizing, oh
no, this is a much broader problem.
I'm dealing with a very
narrow aspect of it right now.
So, there's lots of ways
it can come to light.
And, generally speaking, the first
thing you should do is recognize
it and figure out a plan to correct
it, particularly in employment
space where, exposure continues.
If you don't fix it, the problem persists.
When you fix it, you can at least
put a finite time on your statute of
limitations, your period of exposure.
But, really, I think the rubber
really meets the road here.
You come up with a plan to fix
it, but how do you implement it?
How do you message it?
How do you do that in a way that
doesn't result in the other 100
employees saying, "Huh, I think
you were doing it wrong before.
I'm going to sue you.
" And so there's different strategies
that can be implemented for doing that.
And, one of the things that I often
recommend is, and I think this
is very natural, but like, make a
bunch of changes at the same time.
Because usually when you realize
something is off, there's more
than one thing that's off.
And not necessarily one that carries,
they all carry legal risk, but
there's things you wanna change,
there's things you wanna update.
You might be reclassifying a position
from, exempt to non-exempt and
ending any potential exposure for
misclassification there, but you
also might be redoing your handbook.
You might be rolling out
new employment agreements.
You might be ruling out new restrictive
covenants, whatever it might be.
But if you do all those things at once
and you message it as, look, we're
updating our employment policies, I
think that gives employers a lot of
cover as opposed to just saying, "Well,
we were doing this one thing wrong,
so we have to change it now because
the law says we gotta change it."
Sarah Sawyer: Yeah.
And Also a part of following the
process you just described means you're
gonna probably keep doing things the
wrong way for some additional period
of time while you're figuring it out.
And I think it is important to be
comfortable with that because if you've
already been doing it wrong, there is,
sometimes a knee-jerk reaction feeling to
feel like, "I've gotta fix this right now.
I'm exposing myself to additional risk."
And yes, that's true, but by trying
to react almost too quickly and fix it
and try to make it on something right
away, you might actually be exposing
yourself to more risk than if you just
take the risk you've already been taking.
So it can be a little counterintuitive
and a little bit painful.
And obviously you wanna act expeditiously
with these things once you have an
understanding there are areas of the law
where it's important that you do so also
because there might be a component of,
knowledge or intentionally doing things.
And so there is some nuance there
around having to manage that risk.
And we talk a lot about
managing risk on here, right?
So it's like this is just one of
those situations where, you can't
go back in time, you can't get
in a time machine and say, "Oh, I
wish I would've done that better."
Yeah, it's natural to feel that
way and wish you could go back
and change it but you're where
you are and the most important
thing is to assess the situation,
figure out the best way forward.
And for a lot of these things,
it's not an easy answer, easy
switch to just turn off or on.
Like PTO is a good example where maybe
if you're not complying with sick
leave laws or other types of laws that
you might have in your jurisdiction
and you wanna change your PTO policy
that's not always a quick fix.
A lot of times you've created certain
obligations around the policy you
already have, you've gotta unwind or
resolve those obligations that you
might have and then start layering
in the compliance piece with whatever
you might not be complying with.
So it's unfortunately, often not an
easy fix and just a light switch.
Russell Berger: Well, and I think,
you wanna rush to come up with
a solution, but you don't wanna
rush to implement the solution.
You wanna be strategic about how you
implement a fix, but once you realize,
huh, something doesn't feel right,
you wanna figure out what you need
to do and what the best path is to
get on the right side of compliance.
And look, sometimes that answer
might involve back pay or, but,
sometimes that's the right answer.
And sometimes, it might be changing
a policy or changing, or, you know
what, we have this policy, but maybe
we should just interpret it a little
bit differently until we can get
this, what's in writing changed.
We should grant some leeway here.
There's all sorts of different ways to
manage through it, and when something
feels amiss, the right thing to do
is to figure out how you're going to
manage through it and what you're going
to do, and then be, very strategic
about how you move forward in that.
Sarah Sawyer: Yeah.
And the last thing I'll say on the topic
is just also getting your arms around the
full scope of the issue, because you don't
wanna have to make multiple fixes, right?
So you wanna make sure that you've got the
full ... Exactly, I think that you stated
it well, get your arms around it, make
sure that you find a solution and before
implementing, make sure you've thought
of everything because you don't want it
to be half hazard, that's for sure so.
Russell Berger: Yeah.
Sarah Sawyer: Well, thanks, Russell.
We'll see you next time.
Russell Berger: Thanks, Sarah.