Friday, March 29, 2013

Start ups need lawyers - Part II, more employment law questions...

Last week I addressed a few of the questions from a few start up HR folks that I know.  There were a few more they'd like addressed:

  • Moonlighting
  • FMLA/STD/LTD for small businesses, start ups

  • And here is where I mildly disappoint them - by telling them what they already know.  Moonlighting, the act of having a second career/job while still employed with your current employer, is not completely unique to the start up culture.  But it may be more prevalent in start ups that can't afford to pay its employees too much cash and opt for equity instead.  A guy's gotta eat, so he's going to get a paycheck somewhere even if he's really bought into building your start up.  There's not much you can do about it from a legal point of view.  Sure, make sure you've got your non-competes and confidentiality agreements in place, but otherwise in the land of the free you can't prohibit an employee from other gainful employment.  What's more important here is how you run your business.  Can you pay enough that your key employees don't feel that they have to work for a paycheck somewhere else?  Does the moonlighting of non-key employees even matter to you?  What can you do to increase satisfaction and meet the basic needs of your employees so that they don't look elsewhere for work?

    On the FMLA/STD/LTD for small business question, the answer is "it depends".  Which is why start ups hate lawyers.  Whether you're not planning on adding a lawyer until your 100th employee or until your revenues exceed $20mm annually, you should consult with an employment lawyer on FMLA compliance.  The FMLA (for those who don't know, it's the Family Medical Leave Act), governs a lot of employment interactions although it is most known for protecting the ability of employees to take time off work to care for themselves or a family member.  The extent to which it applies to your small business will depend on a number of factors such as how many employees you have.  You won't be able to find a clear answer on a blog - and if you do, don't trust it!  Another thing to consider is that the FMLA covers federal required leave.  But some states, like California, may require more or different employee protections.  This is one time where you want the individualized interaction with a specialist knowledgeable in the federal and applicable state requirements.  Sorry if that wasn't much help - the best I can do on a blog like this is to say if you need more detail give me a shout and I'll send you a referral who works in your state/area.  

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