An Interview with Employment Law Attorney Marc Alifanz

As an HR professional, I've had lots of interactions with attorneys, and when you deal with someone who is talented, knowledgable, but most of all sensible, you get a relationship that really sings. Marc is a part of my LinkedIn network, and I've had the pleasure seeing his perspective. I've seen firsthand that he approaches problems from an angle that makes sense for all parties involved, and for that reason I reached out to him to answer some questions that, for those of us who enjoy both fruitful careers and pursue entrepreneurism, are hot on our minds. I think you find that his approach and his liberal application of memes is enlightening.

First, a bit about him. Marc is the founder and Principal at Four Peaks Employment Advisors, an agency of attorneys, HR professionals and investigators who provide HR, legal and investigative services to employers in Portland, Oregon. Marc holds a JD from the Washington University School of Law, is admitted to the bar in Oregon, New York and New Jersey, and has nearly 15 years' experience representing employers in all aspects of the employment relationship.

In addition, he's just launched a great podcast:

"Hostile Work Environment with Marc and Dennis is the workplace podcast that grabs your … attention. Each week we explore the wackiest workplace cases that are simply too strange to be believed, interview guests, comment on current employment law news, and read listener submitted emails! You can listen to the podcast and subscribe to our mailing list on our website, and we’re also available on iTunes and most other podcast listening platforms!"

If the description doesn't hook you, the Archer references in the opening jingle will. I'll bottom line this for you, Marc is my kind of guy. So let's get to the interview!

Q1: Are there unique legal challenges that people with portfolio careers should know about?

MA: First off, many thanks for the opportunity to participate here! This is a great question! I think that for any of us in this situation, the biggest thing to be concerned with relates to conflict of interest and Intellectual Property (IP) issues. As an employer-side employment attorney, I see the many varied agreements and restrictions that employers put on their employees, especially related to IP. Some companies have clauses or requirements that assign any creation or invention made by current employees to the company itself. So you want to be careful that you know your obligations in that regard, and make sure any side work you do is outside of that restriction. Other companies require employees to commit to not work outside of the company, especially for companies where the additional work is related or peripheral to the work of your primary employer. Even in the absence of such an express restriction, good faith and fair dealing requirements would also prevent you from competing in any way with your employer while you still for them.

Outside of that, my biggest concern is not legal – but simply remembering to take care of yourself. Working a full-time day job and being an entrepreneur on the side can leave little time for anything else. I admire anybody who has the drive and gumption to do it, but just remember to be good to yourself.

Q2: When we first establish our businesses, we tend to roll the dice with compliance matters because complying can be costly. Are there some risks that are never worth taking? Some that are?

MA: Businesses own their own risk. I advise my clients to look at their compliance needs through the lens of their particular risk profile and risk tolerance. I try to always give a clear assessment of the benefits or risks of complying or not complying with a particular law or regulation.

Any risk assessment requires two things at a minimum:

1. A discussion of the relative likelihood that a particular non-compliant issue will be discovered, and

2. Ballpark the probable cost or range of costs in the event that it is.

My job as an attorney is to present that risk, offer inexpensive lower or no risk solutions (to the extent possible), and then let them decide what to do.

Each client brings a different perspective: Some are extremely risk averse; Others will push the line everywhere.

But to your question! Some risks not worth taking? Certainly, at the outset of starting a business, I’d always make sure to set up the company business entity correctly, with legal counsel. If you have employees (especially a significant number), make sure to follow the wage and hour laws as close to the letter of the law as possible – especially for overtime. Systematic issues in wage and hour compliance lead to class actions, which by their very nature have a multiplying effect when it comes to damages.

Beyond those, the question becomes very industry or business specific. For example, if my company worked with large, dangerous, machines, I would take every appropriate measure to ensure the safety of my workers. Not just from a liability perspective, but because it’s the right thing to do. (Never lose sight of this!) That same company, though, might not find it worth spending time and money on an equal pay audit, and roll the dice that they are complying well enough and that they won’t be called on it. It all just depends on the nature of the business and your own risk tolerance.

Q3. How has the political climate affected enforcement of currently existing laws? Are you seeing more activity by some governmental agencies than others?

MA: Well, generally speaking, across the board, in a Republican administration with both house of Congress also controlled by Republicans, you’re not going to see significantly more activity impacting employers by the federal government, with one exception – Immigration and Customs Enforcement (ICE). We all see and hear the news – stepped up enforcement and deportations are occurring all over the country. This does have an impact on the labor pool, and employers in certain areas, especially in agriculture and similar industries that require a migrant labor workforce, are feeling the pinch of greater enforcement.

On the flip side, however, I think we can expect to see a rolling back of certain Obama-era labor restrictions. For example, under the prior administration, the National Labor Relations Board opined that it is impermissible to instruct non-supervisory employees that he or she must keep an investigation interview confidential. I strongly suspect that such interpretations may go away now that the board has a majority of Republican members and a Republican General Counsel, and wonder whether the “quickie” election rules established several years ago will also be peeled back.

Q4. For many small business owners it’s difficult to know the right time to establish a relationship with an attorney. Some start right away but spend a lot of money without seeing value. Others wait until it’s already an emergency. How should an entrepreneur leverage an employment attorney in the early days of their business?

MA: Well first, you won’t need an employment attorney until and unless you plan to have employees. But once you do, establishing that relationship early can be reasonably inexpensive and save so much money in the long run by preventing you from walking down a wrong path (that can be very hard to come back from!).

Here is a non-exhaustive list of areas an attorney can help with early on:

- Identifying which state and federal employment laws apply to your business, as many only kick in when you reach a certain threshold of employees;

- Evaluating which workers must be classified as employees, as opposed to independent contractors;

- Making sure you’ve properly classified employees as exempt or non-exempt from wage and hour law;

- Writing a legally compliant and culturally consistent employee handbook;

- Complying with complex state laws like paid sick leave, background checks, and payout on separation of employment;

- Advice on navigating social media, labor law (yo -- it applies even if you don’t have a union!), and publicity issues; and

- Making sure you handle meal and rest breaks and other wage and hour issues correctly.

This really just scratches the surface. And while a new business with few employees won’t likely have all of these issues, they will most definitely have some of them.

Q5. What’s on your radar for 2018, as both a lawyer and a business owner?

MA: As a lawyer, and specifically within the field of employment law, I’m fascinated to see how and if the current spate of high profile sexual harassment claims impact employers generally. It wouldn’t surprise me to see a long overdue focus by companies on harassment training, and other compliance-based trainings of all sorts. I think we’ll also see further proliferation of paid sick leave requirements and more jurisdictions enacting ban the box.

And as discussed above, as more mid and high level appointments to governmental agencies are confirmed, it’ll be interesting to see what regulatory areas are rolled back (or are failed to be rolled back) or modified at the NLRB, EEOC, OFFCP and many others in the coming year.

On a personal level, as a very new (and very small) business owner, my 2018 will be focused on sustainable growth. I started my new firm from scratch, literally bringing zero clients with me. Everything I’ve built to date is from hard, scrappy work old-fashioned elbow grease networking and hustling.

That said, my growth plan into next year is a combination of local legal advice to employers and investigation work here in Oregon, and national networking promoting my fun new HR-podcast and HR-certification training webinars. Fingers crossed that 2018 will be a great and profitable year for all of us!

_____________________________________

Thanks for all the great information, Marc! Readers, please feel free to leave your thoughts and comments below, as always!