Employment Law Challenges Growing Businesses

In this, The Faces of Business episode, Eric Sarver, Esq., Employment Law and Business Law Attorney, Sarver Law Firm, PLLC, Podcast host, Employment Law Today, discusses emerging employment law challenges in growing businesses so you can navigate through the legal intricacies that can pose significant hurdles in your pursuit of success.

In this, The Faces of Business episode, Eric Sarver, Esq., Employment Law and Business Law Attorney, Sarver Law Firm, PLLC, Podcast host, Employment Law Today, discusses emerging employment law challenges in growing businesses so you can navigate through the legal intricacies that can pose significant hurdles in your pursuit of success.

Eric Sarver possesses an in-depth understanding of the complex landscape of business and employment law, assisting organizations in safeguarding their employment agreements, practices, and legal interests. With his vast expertise, Eric ensures that employers and employees are protected and their rights are upheld. Eric strives to keep business leaders well-informed about the ever-evolving legal developments directly impacting their operations.

As a seasoned employment and business law practitioner, Eric has over two decades of experience. With his keen insights and practical approach, he has become a trusted advisor to numerous businesses facing the challenges inherent in today’s employment law landscape. Additionally, Eric dedicates his time as the host of the Employment Law Today podcast on TalkRadio. NYC, where he enlightens listeners on crucial employment topics that directly affect business owners.

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Get ready to learn and understand the current challenges facing employment law and how businesses can navigate them effectively.

Damon expresses his enthusiasm for having Eric as a repeat guest on the show. He suggests that Eric provide a brief background for the audience who may not be familiar with Eric’s previous appearances on the show, highlighting his journey into becoming an employment lawyer and his current work in the field.

Eric briefly shares his background, growing up in Long Island, New York, and his early interest in becoming a lawyer. After attending college and Harvard Law School, he gained experience working at small firms before starting his law firm. Eric assists businesses and individuals with employment and business-related matters, including litigation, compliance, and business law services. He describes his work as solving problems for employers and business owners.

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Damon asks Eric about his early aspiration and challenges in becoming a lawyer.

Eric identifies the most challenging aspect he didn’t anticipate when becoming a lawyer – learning the business side of the profession. When he started his practice in 2001, he realized he had to give his best to the law and analytical thinking.

Eric shares a humorous story about his early days when he was unfamiliar with the term “net 30.” It was initial confusion regarding payment terms.

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Damon acknowledges the importance of various factors like remote work, non-competes, and wage transparency laws. He intends to begin by asking Eric a crucial question: What is the most common inquiry he receives?

Eric reveals that clients primarily call Eric with questions about complying with paid sick leave and paid leave laws for remote workers from different states. They also seek guidance on salary transparency laws when hiring employees from various locations.

Damon then asks about the origin and purpose of salary transparency laws, acknowledging that he has some knowledge but seeks further insight into why such laws were implemented and why people advocate for them. Salary transparency laws, to Eric, originated from the concern of pay inequities based on gender and race. The aim was to address discrimination by requiring companies to disclose pay information, allowing employees to identify disparities and advocate for equal pay.

Damon asks if his Washington-based business must follow Colorado’s laws when posting job openings in that state, considering the complexities of complying with state-specific regulations when hiring employees from different locations.

Eric responds by explaining that states typically consider where the employees are or could potentially be when complying with salary transparency laws. He provides an example where a Washington-based company with employees in Florida would need to disclose the median salary for the job when posting a position that could be filled in Colorado. Compliance depends on the states involved and where the company conducts its business or hires from.

Damon finds the information provided by Eric intriguing and seeks clarification.

Eric further clarifies that when a job posting is broad and does not target a specific state, the argument can be made that compliance with a particular state’s wage transparency law may not be required.

However, if the posting specifically targets a state or involves remote work in a specific state, the company must disclose the salary range per that state’s law. Eric advises his clients to lean towards caution and include salary information to avoid potential risks.

The guest acknowledges ongoing discussions and changes regarding these laws and mentions that states like Rhode Island, Colorado, New York, and Washington have implemented salary transparency laws.
Damon inquires whether anyone has faced fines or other penalties for non-compliance with these regulations, wanting to understand the real impact of such mistakes.

Eric informs that employers who fail to comply with wage transparency laws may face fines ranging from $100 to $1,000, depending on the severity and frequency of the violation. The guest discusses cases where companies received warnings for posting unrealistic salary ranges.

Damon raises the concern of what to do if expensive equipment provided to a remote employee is not returned or if the employee does not work out.

Eric says that the actions employers can take when remote employees fail to return expensive equipment or do not work out vary by state. Some states allow deductions from the last paycheck within specific limits, while others may require deposits or resort to legal action.

Similarly, Eric explains that while the federal government provides unpaid Family and Medical Leave Act (FMLA) protections for up to 12 weeks, many states have implemented paid family leave acts, offering paid leave to care for loved ones with serious illnesses or protect them from domestic violence. The specific duration and amount of pay vary by state. He shares a story where an employee’s move to a different state led to different maternity leave entitlements.

Eric advises business owners to be aware of paid leave laws, especially for smaller companies and recommends obtaining liability insurance to cover potential legal expenses in situations such as discrimination claims.
Eric adds that non-compete agreements face challenges from legislative changes, regulatory agencies, and court rulings. Many states impose restrictions on non-compete agreements, with some considering complete bans.

Government agencies like the FTC and the National Labor Relations Board scrutinize their legality, and courts have been striking down specific non-compete clauses. Eric advises businesses to review their employment agreements and explore alternative methods, such as protecting proprietary information and trade secrets, to safeguard against unfair competition.

Damon, interested, recounts a personal experience where a person he knows had to go to court to be released from a non-compete agreement, even though the industry they entered was only loosely competitive.

Before departing, Eric predicts that the non-compete issue will continue to be a significant topic in employment law, especially as more companies adopt remote work arrangements. He anticipates challenges in determining which state’s laws govern discrimination and employee rights when employees reside in multiple states. The remote workforce is expected to change the employment law landscape significantly, requiring employers to stay informed about various state laws and update employee handbooks accordingly.

Personally, Eric is planning summer vacations to spend quality time with his family.

The show concludes with Damon thanking Eric for his precious time and valuable reflection on employment law.

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44:10
SUMMARY KEYWORDS
laws, company, paid, state, non compete, work, business, job, damon, salary, employees, clients, eric, employers, give, person, hiring, compete, protect, summer
SPEAKERS
Damon Pistulka, Eric Sarver

Damon Pistulka 00:02
All right, everyone, welcome once again to the faces of business. I am your host, Damon Pistulka. And with me today, I am excited because we have Eric Sarver from the server law firm. And we’re going to be talking about an employment law challenges for growing businesses. We’re gonna be talking a bit about some of the remote work challenges. Eric, thanks for being here today.

Eric Sarver 00:24
Damon, always a pleasure. Great to be back. Thanks for having me on the show today.

Damon Pistulka 00:30
Yes, yes. You’re a repeat offender. And we like to have you back, man. It’s always good. It’s always good to catch up on the employment law. And you’re out there in New York doing doing it though. And in it every day. So let’s like we always do, you’ve been here before, but let’s catch people up that may not have heard let’s let’s hear about your background and kind of how you got into being an employment lawyer and doing what you’re doing today.

Eric Sarver 01:01
Yeah, sure. I think Damon? Well, again, good to be a repeat offender, good to be back on the show. And for those that don’t know me, my background story faster. Just a very quick, you know where I’m from, right. So I grew up in Long Island, New York that I assumed to be precise, and always had an interest in being a lawyer, I can remember being like 1112 13, watching TV shows about it, you know, watching La law, my dad is a teenager. And I just really enjoyed the storylines and all the drama. So I went, I went to college, upstate mountain, went to Harvard Law School, and got really into like, what it really means to be an attorney. So I, what I did was I worked at a couple of small firms out of law school for about two and a half years, and decided I wanted to try it on my own. So I opened my law firm, which was formerly known as the law office of American sovereign now, it’s sort of a law firm PLLC. And basically, what I do, Damon is, you know, I channeled some of that, that interest in people, which I’ve always had into helping them solve their employment and business problems. So I do for example, like employment litigation, I help businesses to defend against lawsuits and in court or arbitration, or have to move to compliance or writing employee handbooks. And then lastly, I do business law. You know, I do a lot of, you know, your Buy, Sell your contracts business formation. Really, I’d say it’s in the business of just solving employers problems and business owners problems.

Damon Pistulka 02:27
Yeah, well, that’s cool. And you said you wanted to be a lawyer from a young age. So I’ve got to ask a couple of questions about that, please. Yeah. What was the hardest thing about becoming a lawyer that you didn’t expect?

Eric Sarver 02:42
Oh, that’s a great question. Let’s say, Well, you know, I would probably say, like, learning the business side of becoming a lawyer, when I went out on my own, you know, when I went out my own, it was 2001, as long time ago, I was like, younger, I looked about younger, and I knew the law, I knew what I learned in law school, and I knew how to think analytically. And, you know, she believed my clients, but didn’t know all the business that was involved, you know, the strategy, the marketing, the networking, which I’ve come to love, as much as the practice itself. But I remember a quick funny story to my very first one, my very first clients, I had just started my practice, I was about two months into it. And I had worked at places where you got to paycheck on Friday. So they hired me to do a bunch of work. It was a law firm, actually, I did the work for them, and gave them the motion, what they wanted the research and everything else. And gave it a voice. They said, great, well submitted net 30. And I said, Great, wonderful. What is net? 30? mean, you know, back in, like, way back? No, you know, fill it all, in creating, oh, wow, I’m getting paid in 30 days, you know, so a lot of learn about that. But you know, once you learn, like, I wouldn’t trade it for anything, you know, I would not, I would not trade this hat, or these many hats. To be more of a mechanic like to go into a place and do House Counsel work. You know, it’s not anything wrong with it. It’s not, you know, I love this business part.

Damon Pistulka 04:08
Yeah. Yeah. It’s just that it’s not for you. It’s not for you. And that’s cool. So second question. Okay. You’re you want to be a lawyer from a young age. Yep. What is so much different from what you saw on TV that you just you just go they were full and me.

Eric Sarver 04:26
This came up. My wife and I were watching your show the other night and this came up? Well, the biggest thing that I’d say is different when I was younger, because that’s again, I do trials in mediation. I go to court arbitrations defending employers now from you know, anything from Bucha employment contract to wage and hour issues over time. What’s different, Damon is just how long things take, how long cases take to progress through the courts, you know, on TV shows, right? They get a case they meet the people they are trying next week, you know, and that One thing that’s different. And then the second thing, I think that’s very different is that, like, don’t get me wrong. It’s exciting and interesting, and it gets my adrenaline pumping. But the courtroom scenes, you know, with everyone shouting at each other, you know, the, you know, the sort of I want the truth, you can handle the truth. Tom, yeah, your menses, it just doesn’t usually go down, right. That way, you know, is is this more of a calm, you know, just back and forth. And it’s just and sometimes it gets tense, but it’s not that high drama. You know what I mean? It’s there, who is an ER doctor who watches like, er, or Grey’s Anatomy and says, This is not interesting, but this is not what’s very, like, you know, that was a big difference. I’d say, that’s the big difference.

Damon Pistulka 05:40
Yeah. Yeah. That’s awesome. That’s awesome. I had to ask when you said you wanted to be a lawyer since you were younger, because I know that TV portrays it a lot differently than, than it is to, to make the story seem, you know, more interesting and stuff. But so, you know, we talked a couple years ago, a year ago, something like that. I can look at the date, but it didn’t. But in a lot of things to change laws, things change. And we’re sitting here today with, oh, let’s just start we got a few more people that are working remote, and remote could be not down the street. It could be in a lot of places times in another state or another country. Yeah. Sometimes for people. So there’s some challenges there. Other thing, just reading something about the FTC and my Reddit, right, and noncompetes Yep. Or something like that. So we got a lot of stuff to talk about here.

Eric Sarver 06:38
We do, you know, yeah, a few hours. Right. Yeah. Background there to eat chop on whatever

Damon Pistulka 06:45
it is, is can because I mean, yeah. So and then then not to mention transparency, wage transparency laws. So I’m gonna start I’m gonna start with, I’m going to ask you a general question, because that might help us. Okay, what is your most common call now? Call to Action? What is someone calls you, you get 10 calls? What’s the the most common question you’re getting today?

Eric Sarver 07:12
Without a doubt, it’s how to follow all the different paid sick leave and paid leave laws based on hiring remote workers. You know, clients have a business in New York, but now the hiring remote because they’re growing, they’re expanding, and they can do remote work. So they’re hiring folks from you know, Missouri and Florida and California. Right. So they’re asking me which laws apply around maternity leave, or paid sick leave, or FMLA and state versions of that. So I’m getting a lot of questions these days, Damon, on compliance issues, right. And like you mentioned, the second one that’s really big as salary transparency laws, right? You know, if you’re a company, and let’s say, in Florida, and you’re hiring remote worker in Colorado, and you’re advertising there, you have to list the minimum and maximum the reasonable salary range for that position, whether it’s external or internal relate permissions. So basically, I’d say try to answer is a lot of calls around compliance. How do we follow all these new federal and state and see laws governing how we do business?

Damon Pistulka 08:14
Awesome. Now, because my follow up questions are going to be around those things. And but I wanted to see, I wanted to see so yeah, first of all, let’s talk about salary transparency laws. Yes. What what is the? I think I know, but what is the origination? Why did people want salary transparency laws?

Eric Sarver 08:37
should happen? I did? It’s a great question. Yeah. So you know, are the original white the motivation, the policy argument behind it is a pretty noble one. They want, you know, state governments were concerned about paying equities, right, that, you know, constantly say, you know, we’re paying people who look like us, right, you know, like a white male, more. And this is, you know, a true problem in society, right, and employers, employees, paying more to men and not paying equitably for women and for people of color for women of color. So they wanted to put an end that they thought if we can force companies to disclose how much they’re paying, you know, give the people who work there a chance to see, hey, wait a second, they’re paying, you know, this much Bob, this new person, and I’ve been here 12 years, and I’m an African American woman, and I’m making this little so as a way to help to root out discrimination. That was the origins of these laws.

Damon Pistulka 09:27
Yeah, that’s what I thought, you know, and for me, honestly, honestly, yeah. I don’t think I’ve ever worked at a place that paid men and women differently. It was position. I think I thought back and thought bad about about this a lot. Yeah. And my wife has experienced in larger companies, and it was it was prevalent in some of them and not another’s and I just think I think if that helps, it’s a good thing because hey, a job is his job. Doesn’t matter who to do it. That job is getting done. They should get paid.

Eric Sarver 10:04
Yeah. Equal pay, right? Yeah.

Damon Pistulka 10:06
That’s cool. That’s cool. So now, you make a good point. I’m in myself, I’m in Washington State. I hire somebody that trying to hire somebody in Colorado, like you said, or I don’t even know if Colorado is going to transparency law, wage strikes. So then if I’m hiring, if I’m trying to hire there, do I have to follow their laws and my posting there? Because I’m even if I’m a Washington business hiring somebody in that state, or how does that work?

Eric Sarver 10:40
It’s a great question, right? So the states look to where the employees are, who either aren’t doing the job or could potentially do the job, right. So you can be a Washington based company, right? Or even a Florida base with 10,000. Let’s say Floridians working for you in Florida. And if you’re posting a job, let’s say that could be filled in Colorado, or you’re posting let’s say, on, you know, like boards or that get a Colorado, Colorado and can see, right, yeah, you’ve got to disclose that state, what the middle American salary is, right? It’s kind of mind blowing. But if you’ve got, you know, say like you’re whether you’re you’re putting it on a job board that that you know, is listed in that state, or maybe you’re listing like in an advertisement, let’s say in an online, you know, publication or advertisement. Let’s Yeah, so it’s like, they look to where to places, where is the company doing business, if you’re doing business in a state that has salary transparency laws in place, you’ve got to follow it. But if you’re in another state, but you’re hiring from that state where they have salary transparency laws, the state to hire in, you’ve got to follow the rules, you’ve got to stay with the salaries are.

Damon Pistulka 11:51
That’s really interesting, because what you said, and I’m gonna see if I understood that, right. So I’m in a state that doesn’t have a transparency law. I don’t even know about Washington state, but I’m not for sure. But but if I’m saying I can take candidates nationwide, and I don’t specify the state where I’m going to be hiring somebody, does that mean that I have to comply? I might as well comply with the wage transparency law, because I’m, I’m supposed to, if someone from Colorado sees that ad?

Eric Sarver 12:24
Well, it’s interesting, if you’re very vague over the next wave of broad jump to nationwide, right, but you’re not targeting that one state to argue, right? Or you could argue that you don’t have to follow that because you’re putting it where other people like in the general ether, so to speak. But if you’re targeting, let’s say, people who work in that state, in New York, or let’s say it’s a job that’s going to be done remotely in Colorado, right, let’s say it’s a job where, you know, then you have to list it. I always say to my clients these days, and you know, like, err on the side of court caution. Yeah. Because what does it cost to list the job? Sout, right, to stay an extra line that says, Is this right, you know, what is the actual cost? And what are you risk? If you want to follow these laws, like we employment original is still actually discerning some of the changes in these rules, we’re getting a sense of which states have them, like, you know, Rhode Island, Colorado, New York, Washington State, I believe, does have an in pretty sure, yeah. You know, also just, you know, where what do you look to so you look to again, where is the employee? Where’s the job being done? Or can it be done, you know, remotely, a lot of companies will try to surpass the salary transparency law by saying, Okay, we’re hiring, but, you know, we’re not gonna have an office in the state don’t come into the state. But if you’re doing business, and you say, the person who’s working from home, lives in the state with a salary transparency lies, you have to list and then have a maximum salary. So I think the pushback I’ll say, though, you know, like, from the other side, from the employers is that some are unclear. A lot of companies, you know, they, some might, might not give the best salary upfront, but they have other good perks, they want to, they have a great work life balance. So they have great, let’s say, no words. And so they want to wait until the interview, right, you know, to tell the person like, look, you know, we offer, you know, 85,000 a year, let’s say a salary that maybe in this industry, people get an average of 110 120, but we give summer Fridays, you can see your kids, you know, just life balance, great benefits, so they want to be able to get people in the door to sell them on the job. And some of the concerns they have, I think, are that, you know, if it’s just like people scrolling through job listings, and they just see the salary, right, they just stay there, they scroll on they click on and so like, so that’s like, I’m hearing different sides of it. But you know, to your point, if what do you have to lose if you’re not sure if the state’s salary transparency law applies less this hour you know, as I tell my, you know, my clients, right if they’re unsure if you’re not sure, you know, which states rules apply about, say notice, for example, like notification of certain rights remote workers, a lot of states make you have an electronic poster, right that you send, you know, if you’re not sure what your state requires, oh, send the poster, you know, they may send the day they know these electronic versions, PDF versions, and I’m talking about posters that, that have all the different employees rights and, you know, obligations and rights listed on their workers compensation, which over time and the like,

Damon Pistulka 15:24
you know, yeah, yeah. Well, that’s great to know. Because I think that, like you said, it can be, it can be a good thing in some respects, because then we all know what it is. But it wouldn’t be challenging for someone that does really offer a different kind of work atmosphere, and, and work life balance that may pay a little bit differently. You know, it could, because if you think about even the difference between a private sector job and a government sector job, you know, the government sector job may not pay as much, but they got a nice retirement, they got the, you know, benefits or whatever the heck else, it’s, that makes it worthwhile. And it would make it difficult because of specifically why you said, we’re so trained now by Amazon and everything else, it rolls down the screen, and, you know, find the lowest price or the best price. So, you know, or the highest than that.

Eric Sarver 16:21
Yeah, some people might even set their, you know, search terms, for a position, minimum maximum, the minimum salary, and so they’re gonna roll way past those. So the company has their work cut out for them then to, to really advertise and promote what else they offer, like in the job posting, perhaps, you know, to make that point.

Damon Pistulka 16:39
Yeah, yeah, for sure. So, wow. And, you know, with the amount of remote work that’s going on now, compared to five or six years ago, it’s it’s, you know, because it was a little bit, but not anything like it is now. What are some of the well, we’ll talk about paid and unpaid, you know, but what are some of the real consequences if somebody screws up on on this wage transparency as anybody? I mean, anybody gone? got fined for it anyway? I mean, are you heard of any of that kind of stuff? What, what’s it really?

Eric Sarver 17:12
Yeah, so you know, each state has their own, like fines and penalties involved? Yeah, like for how many, let’s say, you know, for each job posted, right, and once they get caught, let’s say they have a chance to cure. Most days, most states will, you know, Damon will give the employer like, one shot to fix it, right? To remedy the AKA, hey, you know, you didn’t post this if required. So go give them an opportunity to say, Okay, we’re gonna go back, we’re going to amend that job, and that job posting lists the salary, but the penalties, you know, they could be like, you know, a few 105 $100, you know, for the first one and $1,000. But then they grow as where it continues, you know, a couple companies that oh, god dang, with a warning, because they put like, you know, minimum salary, you know, like, 10,000, maximum salary 400,000. So, it’s not an actual realistic range. They said, Well, you know, the lowest paintwork for our company gets, yeah. And the highest paper, I think it’s 400,000. So that’s a reasonable range, so that the law is a little more specific, like, you know, almost our common sense definition, a reasonable, but the company is getting thing, I think, you know, I think it was either Google Google or Uber. You know, a lot of big companies, they’ll arrogant they don’t want to be, you know, beholden to it, you know. So, there are penalties, though, to keep in mind. So you know, so employers should take it seriously. And then there are just so many other issues that come up, within a heartbeat of workforce, like even the day to day logistics of like, you know, workplace equipment and home equipment and workers compensation rules that apply? I mean, I can talk a lot about that if you’d like unless you Yeah,

Damon Pistulka 18:47
it is because I actually had somebody that does a lot of workplace safety, ergonomic work that was talking about this years ago about how it was going to change with remote work. So go ahead, go ahead.

Eric Sarver 18:59
Sure. Well, you know, first off, like, I think one thing that comes up for me, that I see a lot is companies I’m with, you know, work with remote workers now. And they’re one of the things they say is we’re gonna save money on commercial office space, that’s true, no more office space, they will save money on, you know, say transportation for someone who’s in reimbursement. That’s true. If it’s travel within the course of the job. And they say, and we’ll save money on workers compensation, I say, well, that waste I can hold on, right, you know, because, you know, if you have employees, right, in, you know, in the States, the way the state laws, you have that workers compensation insurance now, you know, remote workers, like if they’re independent contractors don’t have to cover them right? Or if they’re a company and they’re working like an LLC and the members and you know, each giving work. But when you have employees who are remote, here’s the thing, if you are requiring right mandating them to work remotely from home, you’re basically setting up a de facto office for them. So you do have to have workers compensation coverage and And companies have to realize that they can and will be, you know, charged, they might be subject to a workers compensation claim for someone who gets hurt at home. And it becomes very tricky because, you know, like, if somebody falls, twist their ankle on the job, some sort of an appeal, you know, by their cubicle desk, it’s very clear cut injury happened on whether they were on their lunch break or not, or someone else that say, you know, who doesn’t want menial, a more manual job, you know, is, you know, say at the, you know, at the stones, like, you know, cutting chopping in the restaurant, and they burn themselves, they cut their finger, that’s an on the job cost of duties. But what happened was, like, we had a case recently in New York, where it was a case went to the appellate court, whereas somebody wanted an ergonomic chair funny, you mentioned ergonomics, and it came in the mount Amazon package, great. And they were carrying it up the stairs, from their basement, you know, door entrance at home, up to their home office, trip down the stairs and broke their ankle and Sears broke some bones and injured. So you know, the company flooded and said, Wait a second, you were carrying a chair up the stairs, you weren’t doing any of our work for us when you got hurt, you know, you were but it was it was during working hours. And it was in furtherance of the course of his duties, like the company didn’t come in and stole, you know, an ergonomic chair, and he don’t want to work from his couch. So, so the courts kind of held that, you know, first it was denied the claim that it was appealed. And it was it went back and forth. I was very detailed appellate version was remanded back to workers comp and say, No, you’ve got to, you know, give this person a workers compensation claim conference. So, so we have stories like that, you know, people are on a lunch break, and then they go up to answer their phone, and they trip and fall in their carpet, but they’re talking to a customer, you know, is that a work? Is that corporate workers comp? Is it a course of duties, you know, they want a break, but then the phone rang, it was a client, so they want to answer it. So we see a lot of issues about changing workforce, like, yeah, it’s so different. You know, we’re on a screen where we know, we’re zooming in and out, you know, five years ago, people didn’t know what zoom was, you know, it’s like second nature. But you know, workers comp is a big issue. And so it’s like office equipment, you know, what happens if you send your employee, a laptop company should not, you know, and you fire them. I mean, if you fire someone, and they work in your office on Madison Avenue, they usually leave everything in the office. Now that to them in, you know, let’s say, Alabama, and you’re in New York, and you’re saying, Please mount this back to us. A lot of workers say no, I’m not gonna do that, you know, I just got a free laptop, let them class to me. And there are ways to protect that I can get into there are different ways I advise companies what to do with a law allows, you know,

Damon Pistulka 22:34
yeah, yeah, that’s cool. Because I, that’s a huge problem I know, with with a lot of people, because you are, you’re sending it off, or you’re sending off $1,000 worth of equipment to to a remote employee. And if they don’t work out, what do you do, then?

Eric Sarver 22:50
You know, and the answer that question varies from state to state, some states say that you’re allowed, as an employer as a company to deduct it from the last paycheck, as long as that doesn’t leave them with a net that’s lower than the minimum wage, right? Yeah, they work 40 hours, you know, for you and their hourly worker, and you deducted 1000 bucks from their paycheck for the laptop and left left with 1100 or $150, left at $20. Left, that’s going to be a problem. But if it’s not something that still keeps a minimum wage, some states allow it, some states say you can deduct some states, you know, you can’t deduct from last paycheck, you can have a deposit of funds that you can deduct from, or you can sue them in civil court. And, you know, companies say, Well, you know, I’m gonna go to, you know, Florida civil court, just where the person lives, you know, and I think be a contract state, that you can, you know, sue them and, you know, in the state you’re in, or make sure you have a deposit upfront, if you’re allowed to do that. So look at your state law, and, you know, talk to him. You know, I mean, you know, it’s like the job is not to know and memorize every state’s law. You can, you could just be it’d be mind blown. Yeah. Like, I hear an issue, like you’re an employer, you’re a business owner, you know, you’ve got remote workers, you’re monitoring social media use, what do you need to know, you know, you’re giving them equipment? And is that okay, what do you need to know? And it’s like, that’s where I come in, you know, I hope that the compliance I defend from last season.

Damon Pistulka 24:13
Yeah, yeah, good stuff. Because, because that’s office equipment is huge, you know, and like you said, just getting back if something didn’t work out. So the other thing you mentioned, which I love that we’re gonna get to talk about a little bit is paid and unpaid leave or sick leave or whatever you want to call it. Right now. Let’s talk about that a little bit. Now that’s kind of changed the game and what we’re doing.

Eric Sarver 24:40
Sure. Well, you know, the federal government has clear unpaid FMLA is 30 years old. Now they have right up to 12 weeks, unpaid leave, your job is protected. It can’t be fired from when you return. You have to be offered the same job or a comparable position if there’s a legitimate business reason not to give it to you but you That’s a that’s for coming to a certain size, certain number of hours 50 or more problems with the hour, on the year, etc. But a lot of states have paid family leave acts, right, basically to say that, you know, if you need time off to care for a loved one, usually it’s a close family members a spouse or partner, now we’re seeing, you know, a child, God forbid, a parent, you know, a brother or a sister, and you need to care for them for a serious illness, or in some states and protect them from domestic violence and stalking issues, right? They need your support, then, which I think is a good rule, a good idea, right, you get paid leave to take care of them. And so some states say two thirds of your salary paid leave 12 weeks, some states give eight weeks, some states give 60% paid. But last is giving them something it’s given full pay leave, you know, for that. So like, look like New Jersey and New York. And so people were taking pay leave on two bases. One basis is to care for a loved one who’s sick. That’s kind of like the equivalent of the FMLA. The other is to care for themselves and they get sick. And that’s kind of like the short term and long term disability laws of different states. So you know, when you’re in a remote workforce, a lot of my clients ask me, Well, Eric, you know, which company or whether which state’s laws apply to my company, and it has to do with, you know, where the employee lives, where they reside, you know, how often they live in that state. I’ve had clients that story where a client had an employee in Florida, and the employee moved to New Jersey, and mention it to HR, but then he did mention anybody else. So, you know, insurance didn’t know that this person was now living in New Jersey. So they went to take off and the person said, Okay, I know Florida law, you know, you don’t get any maternity leave, because, you know, they don’t have to pay for it. But because they live in New Jersey, now, you know, they had to mark for that, Toby. So there are around, you know, pregnancy and paternity. And they’re expanding in the people they cover and how much is paid? So you need to know all about those laws, right? sick pay, that kind of thing?

Damon Pistulka 27:03
Yeah, well, that’s a great point. Because those, those kind of, I mean, you just think of that change right there that you talked about. I’m not I’m not considering that in that person’s wage are accruing for it on the back end, whatever you’re supposed to be doing accounting wise for that. And, and then they come on, and all of a sudden, I’ve got to pay eight or 12 weeks, whatever their state law is, leave now that I wasn’t planning on that I didn’t think I had to

Eric Sarver 27:30
write Damon, and keep in mind that, you know, for a larger company, that might not be a big deal. You know, but if you’re not a Walmart, or you know, you know, a restaurant chain franchise, then you’re a small, I have a client that has no, six employees. So they’re covered by New York State by various laws around paid leave. And, you know, that’s very pregnancy attorney should came up where, you know, now that the person was living in New Jersey, she had to pay them. And so what am I going to do, I didn’t account, she was barely making ends meet with her business was slow, you know, but you have to pay it. Now. Most most employers, though, do get insurance, right to pay for people’s paid leave and paid time off, you know, so insurance will pay for like, disability, you know, pay leave. So it’s important, I think, if you’re a business owner to look into that insurance, you know, and including e PLI insurance, which is employer, a professional liability insurance, right, you know, that if you’re going to get sued you to call me up and say, Eric, this person wrote a demand letter from their attorneys, they’re claiming that we discriminate against them, you know, we swear we didn’t refer them for this reason, but they happen to be subjected to this situation, they dropped occlusions. Maybe we’re being sued in court, what do we do? And you know, it can cost as we now I mean, a trial and cost six figures, right. And legal fees. Oh, yeah. Yeah, he’s going through the settlement can cost 10s of 1000s. of dollars. Yeah, companies are faced with this dilemma of like, you know, even if they say, I know, this person was not being truthful. Or I know that there was something here, but they got a new job, you know, two weeks later, pay more money. And in terms of emotional stress, they’re claiming, you know, in $1,000, and I just don’t see it, right. You know, I see a social media feed, I don’t see them. You know, refraining from the day to day activities. What do we do here? And sometimes they say, you know, like, it’s gonna cost us more to litigate, than to pay the person. Yeah. Point of liability insurance pays attorneys fees and pays costs. And you could actually really choose more wisely if you want to fight a matter or not that you feel it’s just not accurate. Alright.

Damon Pistulka 29:35
Yeah, I’m writing that down. Employment liability insurance. That’s something that yeah, that’s a wise investment for people that have a lot of employees is for sure.

Eric Sarver 29:45
It is talked to one thing about my college you know, Aaron, they’ve been you know, in the insurance industry thoughts about this, you know, wardens of it because like all insurance, you know, if you never really think you need it, gonna need it. You know, you think, you know, I’m really good to my employees and we all get Long well, and we’re a family business here. And we’ve never had a problem before. But you know, sometimes you’re lucky. And you’re right. But it’s like all insurance, you know, you get home and you get a flood and fire insurance and get car insurance because, you know, if you do get into a car accident, you want to want to be protected. You know, I like to think Damon of my compliance work as a type of insurance policy in and of itself. It’s not actual insurance, you know, you’re not signing on the line and getting premiums to me. But you know, when you pay me to do compliance, I am helping to assess importantly, where your risks are for liability. And then we’ll plug up those holes, you know, we’ll make sure you’re following the Department of Labor got laws and regulations, and you’re, you know, you’re posting your internships correctly. And you’re, you know, you’re following the law. And you’re learning how to communicate with your employees when they have complaints and do investigations properly? And that can really reduce the chances of a lawsuit, or by

Damon Pistulka 30:56
a Oh, yeah, that takes your chances down significantly? significantly. That’s for sure. Yeah, really. So we we had one of the things that were that you’d brought up when we were talking before was noncompetes. Oh, compete, non competes? So Ben, some changes in non compete? What’s the first of all, let’s explain the the landscape of non competes right now.

Eric Sarver 31:24
Yeah, I would say that like going the way of the dodo bird that kind of on the way to extinction, you know, if you don’t really know what it is like. So you’ve got the noncompetes being attacked from three, three areas right? From the legislature, a lot of states now are passing laws, either a completely bang noncompetes of New York has a bill that passes on, you know, the governor’s desk thing, wait to see if she signs it, that will ban non competes going forward, including like, not even having business exceptions or partners and so forth. Or high end executives, other states have a partial ban, they say, Look, if you’re, you know, a salaried executive making this much money per year, and salary and this type of position, then you can be held to non compete, right and economic duress. But if you’re making $50,000 a year as a low level employee, and you can’t compete for six months, and you get fired, you know, I see the point like you kind of you know, you’re really stuck, you can’t, you can’t work can’t feed your family, if you only you know, is you know, technology sales, and you’re banned from working in technology sales. So there are laws in the state that are cracking down. And number one, number two, a lot of government regulatory agencies and government agencies are weighing in on this topic. So you mentioned the FTC. They’re challenging as unfair restriction on, you know, trade and fair trade practices. Right. You also got issues of his violate the Commerce Clause, you know, you’ve got the National Labor Relations Board NLRB, there Council recently issued a ruling decision saying, Hey, we think this actually violates the National Labor Relations Act. Why? Because if employees are, you know, afraid that if they get fired, they’ll be bouncing on repeat, they can’t work elsewhere, they’re going to be too fearful to speak up about unfair labor practices and violations of labor law and safety issues. Because, you know, they’re afraid like, if I get fired, I can’t work anywhere else for a year. So it’s an interesting interpretation. So you got the and then the third thing you got to the court striking them down the court saying, you know, when I first started practicing, I did not compete case in 2000. company trying to enforce it. And I never forget, it was like, it was a three year non compete for like, a certain geographic area, you know, gives us to 2000. So, yeah, more like, you know, 100 mile radius, people drove around to sell items, it was less like, yeah, let’s get on Zoom. Right, you know, so, and I remember all the case law talking about a two year two and a half year restriction rate, and how that changed over the years, to 12 months, 18 months, 12 months. If it’s one of the six months, it won’t be enforced. But you know, I think what’s coming up is that a lot of people know companies need to look at those laws, because as you pointed out earlier, you’re growing business, you’re growing, you’re hiring more people, hiring more executives, and maybe you’re hiring a state, we’re not gonna be too bad, you know, you hire someone in California. Look at your employment agreement. If you’re using an old template, Damon from, you know, 2020 and has a non compete clause, you might as well just cross it out, because it’s not it’s well known void. So, they’re really, you know, they were the good news is there are other ways that I help my clients to protect their, you know, from the competition, they say, What do I do, you know, how do I, you know, stop the Chief Marketing, we’ve taken the secret class and go into the competition. There are ways to protect like proprietary information and trade secrets. So I, I rewrite a lot of those employment contracts and agreements and offer letters to further protect the company from those types of, you know, unlawful or not, I’m often saying, not theirs, because those competing employees that are going to go to the competition, and try and take trade secrets with them.

Damon Pistulka 34:59
Yeah, It’s interesting, because like you said, it’s coming from three different sides now. Yeah, and the non competes, you can see why some of them are why they’re important in some cases, right? You know, if I’m, if I’m the brains behind something, and I leave, and it’s a key piece of technology or something, then I’m going through another kind of I mean, that’s it. It kind of stinks if you couldn’t protect them, but you can protect the technology itself, I guess. And then at least you’re protected against what’s current. But you know, and then you hear horror stories to about I know someone personally, that they were in one of those noncompetes. That was, yeah, that was more like what you’re talking about whether it should have been an exception, right? I’ve always been I grew up in and knowing about non competes in Washington State, basically. And here, it’s pretty much been drilled into my head that if you had a non compete, you might as well pay him through the term of the non compete, because that’s not going to get enforced if you don’t do that. Right. And that’s how we got around it all the time, as we just said, Listen, if we’re going to pay you like you’re working, but that’s non compete,

Eric Sarver 36:17
there’s no rest, then you’re not suffering, you’re getting paid as if you didn’t, without even coming to work, right? Yep,

Damon Pistulka 36:22
yep. And that’s just the price we paid for doing them. But I actually know someone that that had happened the other way where they they actually left. And it was even loose, the kind of industry they went into was loosely competitive, and they had to go to court to get out of the non compete, because they were trying to enforce it.

Eric Sarver 36:46
Definitely happens both ways them and yeah, and, you know, there’s other reasons that people complain, people say, Listen, I may be getting paid, but I’m losing opportunities. You know, I just heard about a great position with a competing company. And it’s an opening, and the opening is not going to last until my non compete runs out nine months. Yeah, you know, I can’t come back and, you know, May of 2024 and say, okay, but the beats finished now ready to start work. And they’ve already hired someone. So, yeah, it’s, you know, a lot of employment law, like, you’ve got, you know, different extremes, like, you know, you got, you know, states that don’t have really hardly do anything for pay leave or sick leave. And the workers suffer, you have paid states that then impose on companies, very high demands, and then, like, the smaller companies profit margin suffer, I often wonder and talk to my clients, like, should they be as almost like a sliding scale approach? You know, like, say, you know, if we’re gonna raise minimum wage, great, if we’re gonna have overtime, prevailing wage, terrific. But should there be some kind of sliding scale? So you know, now, if you’re, let’s say, saying, like a company has to have, you know, 20, paid sick days and extra higher minimum wage and all these other, you know, things to take care of? Should there then be consideration for companies that they could show economic hardship, right, because not every business, as you said, is big business, right? Not every Yeah, me. And those are the ones that get in the news, look at Amazon, they really treat their workers terribly, and Amazon can’t afford and shouldn’t be paying a higher, you know, so it’s interesting, as somebody I come across my clients, how do I help them, you know, follow the law, and protect the bottom line. And I’ve tried to really focus on that, you know, with litigation defense, with drafting employment contracts with, you know, drafting, like shareholder agreements, and how do I help my clients follow the law without going broke in doing so? And that’s the challenge.

Damon Pistulka 38:34
I still have that. How do I help my clients follow the law without going broke?

Eric Sarver 38:40
castrator as long as my website you know, because yeah, it’s something Yeah,

Damon Pistulka 38:45
yeah. Well, and Eric, it is always great to catch up with you because it’s you’re in this all the time and you stay so current with it. And you’ve also and I don’t want to get out of here without talking about you’ve got here the host of employment law today. You’re going to be coming back out with Iran and taking a hiatus for the summer you got a lot of things going on family business other stuff, but you’re gonna come back later this fall with it? What what are you excited for coming into the future between that you’re getting getting things going? What’s happening?

Eric Sarver 39:21
Yeah, sure. Well, you know, on the personal front, my son is turning four in August, and it’s amazing. I can’t believe he’s gonna get so big already. And we’ve got to come here tonight in two weeks vacation. And then we bought a house, new house, so we’re looking to move into that, you know, nice, nice, beautiful space. And it’s been I told you earlier before we started a roller coaster of just you know, the seller’s market. Also looking forward seeing us a new client matters. You know, I’ve got some some litigations for employment litigation defense. I’ve got a commercial litigation case where the judge should be deciding on my motion to dismiss hopefully granted, and just you know, a lot of like, so Summer things to do. I did hope for little more downtime this summer, because every summer flies by, and I get I mean three times as I’m going to the beach next summer. But then now with the House and the moving and, you know, all blessings, all gifts I’m grateful for all of it means, you know, but I’m looking forward to the new work, what the new year holds, you know, and just timing my family on vacation and just all that good stuff. I look forward to as the summer goes with as the year goes on, we roll into the side.

Damon Pistulka 40:31
I would just take every day every day, you know, this time of year in the northwest, it doesn’t get too hot, doesn’t rain, you know, today we’re at about 74 degrees and the sun is blaring, and it’s just bright blue skies. So I just I just cherish the summer days and and plenty of time with family and friends. And it’s just been a great summer so far and years year is shaping up nicely shaping up nicely. So But Eric, what is there’s one question. I mean, we’re right at time. I want to ask you one question quickly, though, before we jump off. What is the thing that you’re looking at now? As the next future concern for businesses? And employment law

Eric Sarver 41:20
and employment law? Right. And, you know, I really think the non compete issue is going to become the really next continue to be the big one. Right? People do business. And I think you know, that as more and more companies become remote, we’re gonna see more issues of, you know, which states laws govern for like discrimination foods and, you know, for issues like that come up. When you have traveling employees, you know, who might live in multiple states that might reside, they might be bicoastal. They might say, I live in New York, I’m really seeing like the remote harbored workforce as a change in the future in employment law, it just gonna change the whole landscape. You know, employers have to know, the other laws now from various states employee handbooks are now becoming like this, like a Bible, you know, really, I think is the big issue with the Harvard workforce.

Damon Pistulka 42:09
Yeah, there we go. There you go. Well, thanks so much. I mean, we were talking about employment law challenges today and growing businesses with Eric Sarver Sarver law firm out of New York. Eric, thanks so much for being here. But first of all, how can people get a hold of you if they want to talk to you? Is it LinkedIn? Where’s the best place to get a hold of you?

Eric Sarver 42:31
Yeah, great question. Even, I’d say three places, right? I’m very, very, very, very into LinkedIn. I’m very like big on I’m posting there a lot. So certainly LinkedIn, you can just type in my name WWW dot Eric sarver.com e or IC, es ar vr.com. That’s my LinkedIn profile. For my website. You can also catch me at www dot excuse me, that Sarver Strv er dash law.com. And then the best way to reach me really is just, you know, give me a call my direct line, I like to use it, call me at 917-930-8684 or email me at EMS at Sarver law firm.com. And that’s how you can reach me happening to questions, have a brief free call schedule a console, you know, go the distance, whatever your employment issues and business solutions might be.

Damon Pistulka 43:24
Awesome. Thanks so much for being here today. Really appreciate it. Really.

Eric Sarver 43:29
You and your show. Thank you for having me on. It’s been a pleasure.

Damon Pistulka 43:32
Awesome. I want to also thank Michelle, thanks for Michelle for being here today. No, you’re listening from the car. Anybody else that was listening and commenting. Hey, thanks for being here. If you didn’t go back to the beginning, if you didn’t hear at all go back to the beginning because Eric covered some really interesting things about salary transparency, paid and unpaid leave. Workers Comp and this is compensation and the home office. Lots of good stuff in here. So just go back and listen to that. Thanks so much. And we will be back again next week with another guest hang out for a moment Eric will wrap up

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