Lawyer As Employer

LAWYER AS EMPLOYER
COURSE NO. 1091D
Building an effective team starts

with informed team leaders.
LAWYER AS EMPLOYER
SUMMARY OF COURSE CONTENT
Introduction
I. PART ONE - Labor and Employment Laws
a. Overview of Federal and State labor and employment laws
i. Federal laws
1. FLSA - Fair Labor Standards Act
2. Form I-9 - Immigration Reform & Control Act
3. OSHA - Occupational Safety & Health Act
4. ADA - Americans with Disabilities Act
5. ADAAA - Americans with Disabilities Act Amendment Act
6. ADEA - Age Discrimination in Employment Act
7. EPA - Equal Pay Act/Lilly Ledbetter Act
8. FMLA - Family and Medical Leave Act
9. HIPAA - Health Insurance Portability Accountability Act
10. Title VII of the Civil Rights Act
11. COBRA - Consolidated Omnibus Budget Reconciliation
Act
12. USERRA - Uniformed Services Employment and
Reemployment Rights Act
13. EPPA - Employee Polygraph Protection Act
14. FCRA – Fair Credit Reporting Act
15. NLRA – National Labor Relations Act
ii. Florida – State Laws
1. Florida Civil Rights Act of 1992 & Equal Pay Act
2. Florida Whistle Blower Protection Act
3. Florida Minimum Wage Act & Child Labor laws
4. Right to work & employment at will
Lawyer as Employer
Summary of Course Content
5. “Guns in the Workplace”

6. Florida Domestic Violence Leave
7. Florida Workers’ Compensation Law
iii. Florida and Federal Right-to-Know Laws
b. Who must comply?
c. What are the perils and pitfalls?
d. Tips on compliance when recruiting, interviewing, hiring, managing,
disciplining, and terminating
II. PART TWO
a. Policies, Processes and Procedures
b. Handbooks and Manuals
c. Training Programs
d. Employee Recruitment, Hiring, Orientation and Training
e. Performance Appraisals
f. Termination
g. Compensation and Benefits
h. Conflict Mediation
i. Leadership Styles
III. Appendix
a. LOMAS Sample Position Description-A
b. LOMAS Sample Position Description-B
c. LOMAS Sample Performance Evaluation Form
d. LOMAS Staff Management Self Audit
e. Florida Bar Journal, July/August, 2009, Volume 83, No. 7,
“Employment Law for Law Firms: Do the Shoemaker’s Children Need
New Shoes?”
2
S CHWARZBERG Attorney
 ASSOCIATES
AT T O R N E Y S AT
E XPERIENCED  RESPONSIVE  STRATEGIC
L AW Profile
Steven L. Schwarzberg Areas of Experience
• General representation of clients • Complex
E-mail: steve@schwarzberglaw.com
Commercial, Corporate and Partnership litigation
Steven L. Schwarzberg, AV-rated by Martindale Hubbell, • Employment Law, defense of FLSA overtime
has served as counsel for a number of corporate and compensation claims • Probate and Trust litigation
individual clients for more than 30 years. He specializes in • Real Estate, Land-use and Environmental litigation
handling litigation and trials in the areas of employment • Trademark and Copyright litigation • Intellectual
law as well as commercial, probate, intellectual property, Property • Internet-related matters • Health Care
• Business Torts • Bankruptcy litigation • Insurance
corporate and real estate law. Steve regularly represents
litigation • Appeals • Administrative Law
a broad spectrum of clients, private and public, in both • Alternative Dispute Resolution
Federal and State courts around the country, in the
trial and appellate levels as well as before administrative
agencies, arbitration panels, mediators and other alternative dispute forums.
Admitted to Practice
He works closely with clients, general counsel, HR Directors and corporate Florida
management to find strategic and cost-effective solutions to avoid disputes, if United States District Courts, including Southern,
possible, or conclude litigation successfully, when necessary. Middle and Northern Districts of Florida
Steve is the founder and managing member of Schwarzberg & Associates, a United States Bankruptcy Court
litigation boutique specializing in employment law compliance and defense United States Circuit Court of Appeals
and commercial litigation. for the Eleventh and Fifth Circuits
Education
Notables and Accomplishments
J.D., cum laude, University of Miami
• Panelist on the Daily Business Review’s Employment Law Roundtable School of Law, 1980
• Runner up for the South Florida Business Journal’s Key Partner Award B.A., magna cum laude, Government,
• N
amed one of Florida Trend’s Magazine’s 2007 Florida Legal Elite for Labor Harvard University, 1976
& Employment Law
Professional and Community Involvement
• F
eatured speaker, Schwarzberg Spector Duke & Rogers Employment Law
Breakfast Series, 2006 and 2007 Member, Florida Bar
• F
eatured speaker, Employment Law for Law Firms Seminar, 2006 and Member, Palm Beach County Bar Association
2007 University of Miami School of Law,
Former Instructor, Legal Research and Writing
• Featured speaker, Employment Law for Non-Profits, 2007
Barry University and Nova University, Former
• L
ecturer on various Employment Law-related topics before Chain Restaurant Paralegal Instructor
Compensation Association, Worth Avenue Merchants Association and other
Anti-Defamation League, National
organizations
Executive Committee
• P
rovided in-house seminars on employment-related matters for bank, retail
Forum Club of the Palm Beaches, Board Member
chain and other similar clients
President B’Nai B’Rith Justice Unit
• F
eatured in American Bar Association article “Suing The State,” June, 1984. of the Palm Beaches
United States Holocaust Memorial Museum,
Esperanté Building
Palm Beach County Board
222 Lakeview Avenue - Suite 210
West Palm Beach, FL 33401 Harvard Club of the Palm Beaches
Phone: (561) 659-3300 University of Miami Law Alumni Association
Fax: (561) 659-1911 Board Member and Co-Founder
Richard David Kann Melanoma Foundation
Please visit us online at www.schwarzberglaw.com
Judith D. Equels
The Florida Bar’s

Law Office Management Assistance Service
(LOMAS)
651 E. Jefferson Street
Tallahassee, FL 32399
(850-561-5795)
Occupation Director, The Florida Bar’s Law Office Management Assistance Service
(LOMAS), 2009 – present
Expertise Law office business and workflow process evaluation and development; risk
management assessment, planning, marketing, retreats, structure and governance,
law firm accounting procedures and budgeting, compensation systems, training,
support staff delivery systems, staffing requirements, systems, space utilization, office
build-outs, office remodeling and office moves; law firm mergers and lateral
acquisitions; law firm mergers, lateral acquisitions and firm dissolutions.
Previous Employment:
Senior Practice Management Advisor, The Florida Bar’s Law Office Management
Assistance Service (LOMAS) 2000-2009
Management Consultant: Hildebrandt International, Naples, FL 1998-1999
Office Manager: Greenberg Traurig, West Palm Beach & Boca Raton, FL 1991-1998
Administrator: Shapiro & Bregman, West Palm Beach, FL 1988-1991
(acquired by Greenberg Traurig in February 1991).
Office Manager: Wolf Block Schorr & Solis-Cohen, West Palm Beach, FL 1986-1988
(a Philadelphia-based law firm; the Florida offices became Shapiro & Bregman)
Administrator: Roberts Baggett LaFace & Richard, Tallahassee, FL 1980-1986
(acquired by Greenberg Traurig in December 1991).
Speaker/Lecturer:
(Representative Listing)
• Upcoming: “Trust Me: It’s Not Your Money,” Association of Legal Administrators Annual
Conference, Boston, May 3, 2010
• Upcoming: “Everything You Need to Know about Being a Successful Lawyer You Learned in
Kindergarten” annual conference of The Florida Bar’s General Practice Solo & Small Firm
Section. Present the law practice management and trust accounting segments. March 26, 2010.
• “Practicing with Professionalism” present the law practice management segment for this on-
going seminar series for The Florida Bar’s Young Lawyers Division
• “Ethical Considerations in Electronic Records Management, EDD & Metadata,” 2008
Environmental & Land Use Update, Amelia Island, FL
• “Avoiding Stress & Developing Strategies to Balance Your Life & Practice,”, AFELA –
Academy of Florida Elder Law Attorneys Annual Meeting, December 2007, Orlando, FL
• “Essential Competencies for Legal Administrators” (ECLA) Orlando, FL, Human Resources
segment, November, 2007, for the Association of Legal Administrators (ALA National -
Chicago, IL)
Resume of Judith D. Equels
Page 2
• “Business Continuity Planning,” January, 2007, State Bar of South Carolina Annual Meeting,
Charleston, SC
• “When What If Becomes What Now,” December, 2006, Chicago Title, New Orleans; October
2006, Illinois State Bar Association, Chicago, IL
• “Risk Management” February 2006, American Bankruptcy Institute Caribbean Symposium,
Miami, FL; April 2006 Florida Bar Environmental Section; August 2006 Chicago Title, October
2006 ISBA Mutual Insurance Company.
• “Maintaining a Trustworthy Trust Account” December 2003, Old Republic Title, Columbia,
South Carolina; and July 2003, South Carolina Bar Annual Meeting.
• “Managing and Growing an Entertainment, Arts or Sports Law Practice,”
The Florida Bar’s EASL Section, January 17, 2003.
• “Professionalism and You” 19th Judicial Circuit Bench-Bar/Pro Bono
Committee & The Florida Rural Legal Services October, 2002.
• “Trust Accounting” ALA National, Financial Section, Chicago, November 2004; and in Region
II, ALA Regional Conference, September 2002.
• “Records Management,” and “The Budgeting Process,” The Florida Bar Elder Law Section
Retreat, August 2002.
• “Best Practices of Governmental Law Offices” Florida Association of County Attorneys Annual
Meeting, June 2002.
• “Avoiding Stress & Taking Control of Your Practice,” Tampa Bay Inn of Court, June 2002.
• “Red Hot Marketing Tips,” Annual Meeting of the Georgia State Bar, June 2000, Florida
Association of Women Lawyers March 2003, Indian River County Bar Association February
2003.
• “Law Office Management – Soup to Nuts,” The Florida Bar Business Law Section Annual
Retreat, Naples, Florida, September, 2000.
• “Improving Attorney Efficiency,” Aegon Group, Legal Department Annual Conference 1999
(Clearwater, Florida).
• “Changing Role of the Legal Secretary,” Annual Conference, Office of the General Counsel,
United Services Automobile Association (USAA), 1998, San Antonio, TX.
• “Disaster Preparedness,” Annual Conference, Office of the General Counsel, United Services
Automobile Association (USAA), 1998, San Antonio, TX.
• “Disaster Preparedness,” Economic Council of Palm Beach County, Florida, 1996.
• “Cost Containment for Law Firms,” The Association of Legal Administrators International
Annual Educational Conference, Toronto, Canada, May, 1990.
Other Activities, Honors & Awards

• Florida Department of Education, Business Management & Administration Group, Workforce
Education Advisory Committee, 2008-present.
• Paralegal and Legal Studies Advisory Committee, Tallahassee Community College, 2002 – 2004,
2008 – 2010.
• Member, Capital City Kiwanis Club, Tallahassee, Florida, 2008 – present.
• Association of Legal Administrators, Florida Capital Chapter, President 2005 to 2007; Program
Chair, 2002-2003; Board of Directors 2001-2007; Chapter Coach: Certified Legal Manager
Exam, 2007, Member 2000-present, Honorary Life Member.
• Staff Administrator: The Florida Bar’s Quality of Life and Career Committee, 2003 -2007.
• The Florida Bar LOMAS Advisory Board, 1996-1997, 1999- January 2000.
Resume of Judith D. Equels
Page 3
• Association of Legal Administrators Regional Vice-President 1991.

• Association of Legal Administrators Assistant Regional Vice-President 1991.
• Association of Legal Administrators Financial Management Section Committee (National)
1988-1991.
• Association of Legal Administrators, Palm Beach County Chapter, Newsletter Committee Chair
1989 – 1991 (ALA National Award Winning Newsletter 1991).
• Association of Legal Administrators National Nominating Committee 1988.
• Association of Legal Administrators National Conference Planning Committee, 1987.
• Association of Legal Administrators Tallahassee Big Bend Chapter, Founding Member &
Secretary 1984-1985 (Member of National since 1982).
Education Florida State University 1983-1985, accounting and business coursework

Associate of Arts Degree, Tallahassee Community College, July 20, 1983
Continuing Education through the American Bar Association (ABA), the Association of
Legal Administrators (ALA), the American Records Managers Association (ARMA), and the
Society for Human Resources Management (SHRM)
Authored Works
for The Florida Bar:
• “Sprinting Towards a Brick Wall: Retirement & Succession Planning for Lawyers
and Law Firms” 2008
• “When ‘What If?’ Becomes ‘What Now!?’ ” 2007
• “Your Law Firm’s Annual Checkup” 2004
• “Why Rainmaking Ability is Important for Small Firm Associates” 2002
• “Trends in Partnership Criteria” 2002
• “New Practice Checklist – Are You Ready?” 2001
• “To Merge or Not To Merge: Pre-Merger Discussion & Action Plan” 2001
• “The Seven Business Processes” – LOMAS 2001
for The Association of Legal Administrators:

• “Financial Management Section Handbook” ALA Financial Management Section
Committee, 1991
Lawyer as Employer is a two-part DVD set covering over 3 hours of practical, legal, and ethical aspects of
law office employee management. Lawyers and law office staff must function as a team. Building an
effective team starts with informed team leaders. From recruiting to termination, from FSLA wage &
hour compliance to developing your own job descriptions, this DVD set with course materials, checklists
and forms, is a valuable tool for every partner or law office manager tasked with managing support staff
personnel.
THE FLORIDA BAR
LAWYER AS
EMPLOYER
Practical and Ethical
Considerations of Human
Resources Administration
in Law Practice Management
Lawyer as Employer
The Florida Bar's
Law Office Management
Assistance Service (LOMAS)
800- 7 30- 2020
ERESENTED BY STEVEN L. SCHWARZBERG

Schwar7be-g & sssccares
22 2 Lakevlgw Avenue; SUite 2 10
West Palm seecn, F lon ~ a 3 340 1
(5 6 1) 6 59· 3 300
ste veQ:5:h....'anb-en;ll aw t;Om
PART I - Federal Laws
c LABOR AND EMPLOYMENT LAWS

• OVERVIEW OF f EDERAL AND fLORlOA LAWS
• WHO MUST COMPLY
• WHAi ARE TH E PITFALLS
• PRACTICAL TIPS ON COMPUANCE
LOMAS 1
THE FLORIDA BAR
Federal Laws in this Presentation
o FLSA Fair labor Standards Act

o Form 1-9 Immigration Reform & Control Act
o OSHA Occupatronel Safety & Health Act
o ADA Americans with Disabilities Act
o ADAAA Americans with DIsabilities Act,
Amendments Act

o AOEA Age Discrimination in Employment
Act
o EPA Equal Pay Act/lilly ledbetter Act
o FMLA Family and Medical Leave Act
c HIPPA Health Insurance Portab ility
Accountability Act
o Title VlJ of the Civil Rights Act

c COBRA Consolidated Omnibus Budget
Reconciliation Act
o USERRA Uniformed Serv ices Employment
and Reemployment Rights Act
c EPPA Employee Polygraph Protection
Act
o FCRA Fair Credit Reporting Act
I 0 NLRA Nat ional Labor Relations Act
LOMA.B 2
THE FLORIDA BAR
Foundational Concepts
1:1 Flarlda is an " At Will State"
o Em ployee versus Independent Contractor
1:1 Criteria to Determine Classifi cat ion
o COmply with Employment Law Requirements
• emplo yee Hacd llOok
• Implement ira -nir g
• PoII0 es and ::>r:xedIJres mlJst be :n place
Foundational Concepts
o Disparate Impact
• N eutra rpoll cy Or cracuee wLth ~ disc, Im in Cl torv resu rtDr I m pact
• R i~ '.I De5teli/no
D DIsparate Treatme nt
• In~~ nt IOrlal d j S ~ ri m l "" at lor..
• Su bject to bUrde r'P-~h , ft , n9 (."'1:!>Otli?eU Dol,.g liH ccro. 01, G"e~)
o Retaliatlon (Generally)
• E n'l O( O"~ eng3::l€ S In a protected ~et J"" lty
• Em ~o~ee expe riences adve rse emp loym ent act ion
• A ca -.J:sal con necnon exists between the two
• Bu ling ton Northe,"n& Sal1ta Fe Raf,Fway Compaf1y' v.
r . Whj~
Fair Labor Standards Act ("FLSA")

c Florida - nation's hotbed of wage and hour
litigation
On Q.i:!.£ d r"y, 70 ne w taV'ls \.J ~ts. weref lled In reo es-etCOurt III
tn e Scut nem D is~ Tl et of Flo nda
• 36 were emp1oy ment· re lat ed d etms, of rnc se, t swere F"LSA.
overtime com :J~ "sa tio " d aims
o FLSA claims - greatest litigation threat against
employers today
a Ease of obtain: n9 class certification - Section
216(b) of the FLSA (29 U.S.C. § 216(b)
o Enterprise vs. Ind Ivid ual Coverage
a Exempt versus Non-Exempt
LOMAS
THE FLORIDA BAR
FLSA, coot.
o MonttOr meal breaks (no work performedl)
o Beware: Non-exempt employees working from
home and/or "off the clock"
oJ -year Statute ot limitations· willful Violations
o Liquidated (double) damages available for
successful plaintiff/employee
• ExceptiOn - act in good faith :
D comDlyingw j ~h a ",r~ttenQdmfn l$t:rali'Vere.9ula~ lon, Order/
ruling Or
Interpretat 1or,cf DOL 3cm inistratlvesxact1ceJporicy
l:I
C Generally no insurance coverage - employment

pract ices liabil ity insurance (EPLJ)
c "Comptrrne" is not allowed
IJ White Collar Exemptions
FLSA, coot.
o Willful violations
• Civil fines up to $1 ,000 per v iola tion,
• Cnrrunatfmes of up to $10.000, and
• I mpris onm ent ler up to six month. fer repeat offend ers
IJ Record keeping requirements - burden is on
employer to keep accurate time records
c Beware of state and federal child labor laws
a Avoid improper pay deductions
IJ Include all compensation in overtime calculation
o Statutory attcrnevs fees - platnt: ff L1..QI
defendant
FLSA - Potential Costs

Examp le: Ass istant Manager Earning $1,000
Per Week Working 50 Hours Per Week
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LOMAS 4
THE FLORIDA BAR
Immigration Reform & Control Act

(IRCA)
o In effect since November 1, 1986
D Purpose: to control im migration by eliminating
opportunity to work without proof of eligibility
D Requires all employees to complete For m 1-9
• Proof Or I~ent lty
• Proof of ellg il>lIity to wor1< In t hl! U.S .
D Government Contractors requi red to use E
Verify - September 8, 20 09
o Compliance information located at
www.uscis.gov
Occupational Safety & Health

Administration (OSHA:L) _
o OSH Act of 1970
• Penalties
n Who must comply
[J Duty to report
[J General Duty Clause - to provide safe working
environment
o Recordkeeping requirements
o Posting requirements
[J Examples of violatio ns in the law office
• HI N~ , Carpal Tunnel Syndrome, et c.

o Material avetteble at www.osha,Qov
Americans with Disabilities Act (ADA)

a Who must comply
• Penalties
o About the ADA (enacted 1990)
a Prohibits discrimination against
qual ified Individuals
• Physical/mental im pair ment that

substantially limits one or more major life
activities
• Record of an impairment
• Being regarded as haVing an impairment
LOMAS 5
THE FLORIDA BAR
ADAcont.
o Recordkeeping and confidential ity
a Agencies who enforce the ADA
• EEOC
• DOL
• State/Local Agencies
a understanding "reasonable
accom m oda tlon"
o Interactive process
o Common violations
ADAI ADAAA cont.

o Materials available at www.ada.qov
• ADA GUide for Small Businesses
a hUp:Ilwwy!.adil.Qov/publicat,htm#Anchor
AOA-35326
• A Guide to Disability Rights Laws
o http;llwww.ada.goylcguide.Ddf
o EEOC FAQ - ADAAA

• http://www.dol .gov/esaJofccpJregs/compliCi
nce/taqs/ADAfaqs. htm
American with Disabilities Act,

Amendments Act (ADAAA)
o = f f e::t. r ~ e January : ,2 009
o ~ ,standarn fc r'"'reg a"'< ledas"
Q EEOC ·...'111 re VISEde fI nit Ion of ~· s u b s:t. a n tt a tJ y limits" and
"Sig n:f'uA nt h' restricted "
Q Oefi....auon or <:lsa.blllty construed br oadly
cOnly 1 /V.:tj or Life Activity ne ec ce IInite<:
c Exoande d li st of Maj~r U fe Acnv nres
e Ep I5.::diC: Im pa irm ent s or those in rerrnss-onare covered If
"5u ts ta :"l ti 3 11 't'li m i t1 n~ " w ," e n aetJve
D M,tlgat ln ij meas ures st>OIJld net ee con sidered
o No eccemmoc en on fer "re garde.das·
o Ex:ep:JQn for eyeglasses and correcnvete nses
o Excepti on fot "transrrcrv lmparrment" a C':. l..i a l/ e :x p e et ~
d ur a,t lOI'1 6 m or. ~ s cr less
LOMAS 6
THE FLORIDA BAR
Age Discrimination in
Employment Act of 1967 (ADEA)
c About the Act
n Who must comply
• 20 Or more em ploy ees
C ADEA rnineflelds
• Appl ies to both emp loyee. and Job appl icant.
c Common violations
[] Gross v. FBL Fmsnaet Services, Supreme Court
June 18, 2009
• age was the 'bu t -tor' cause 01 the employer'. adverse
action
C r-laterlal can be obtained at:
• http:.llwww.eeoc.goy/typcs/age.html
Equal Pay for Equal Work

o Equal Pay Act of 1953
o TItle VII of the CIvil Rights Act of 1964
c Age Discrimination In Employment Act of 1967
c Title I of the Arne ncens with Olsabil it ,,,s Act of 1990
o Considerations :
• 5 '<111
• Effort
• Respon si:>ihty
• Work1n9Conditions
• Establis,hmenVP t.ace
c Enforced by the U.S. Equal Employment opportururv
Comm ission (EEOC) :
Lilly Ledbetter Act

Cl First act of cong ress sig ned Pre sident Oba rne
o The ISO-day statute of llm lt ations for filing an
equal-pay lawsuit regard ing pay di scrim inat io n
resets With each new dis cri minatory paycheck
• In cludes charge s fi led w ith the EEOC
• 1 eludes retiree an nuity pay me nts
= expanded cause of action:
• Those .'affected" by an act of pay dlscnmtnatton may
file a claim
D Practice TIps:
• Monil::)rpay ooroes, ;:;raCbC€s. enc cedsicos
• Scrul inlze ~ obs : t'! 3l may b~ slmJlar withctrrerere pa y
LOMAS 7
THE FLORIDA BAR
Health Inforrnario n Ponability and
Accountability Act of 1996 (HIPAA)
c Protected Healt h Information (PHI )

• "m dwiduaJ.'.,. 'demlfiable he ll ith informaCion" held or
tra sm tt t ed ey a covered e tity
CJ Personnel Records are not PHI
• Does not pro tect em ployment records, even Ir the
Informati on Is nea lth -retated
• Does not prevent supervisor , HR, Or others trc m
asking ror a docto r's note or other in form atJon abou t
employe e's health If necessary to adrn tntst er sick
leave. workers ' compensation, wellne ss programs. or
health Insuran ce.
o Matenals evauabte at
h lt~; {/ www.hhs.gov/ocr/privacy/
Title VII of the Civil Rights Act of 1964

c Unlawfu l for an employer, With 15 or mo re
employees, to fail or refuse to hire or to
discharge any ln divldual, or otherwise to
discrim inat e aga inst any individua l with res pect
to his/her compensation, te rms, conditions or
privileges or employment, beca use of such
ind iv idual 's race. color, re ligion , ~ or nationa l
orig in.
• Estaolt shed the Equal Emplo yment Opportunity
Commission (EEOC)
o ',latertals can be obtained at

http://www.eeoc.gov{types/race.html
The Fami.ly and Medi cal Leave Act

of 1993 (FMLA)
c Who must comply
• Employers WIth 50+ em ploy ees
c Traditional forms of leave
• UP to 12 week s 0 1 unpaId leav e In a 12 month period
• For the birth and care Of the newborn child of the
emp loyee ;
• for pla cement with the em ployee of a SOn Or daughter
for adoption Or foster care ;
• To care for an Im m ediat e fam Ily me mber ( spouse.
child, or parent ) w ith a seriou s healUl cond it ion ; or
• To tak e medic al leave w hen the emp loyee Is unabl e to
.....or\( because of a serious health condition .
LOMAS 8
THE FLORIDA BAR
The F amily and Medical Leave Act

of 1993 (FMLA)
n Bermuda Triangle
c When employees must give notice of Intent to
take Ft-lLA tlme off
c Employers' ool igatlons
o Compliance tips
a Common violations of the FMLA
• Enforced by the Feder al Department of Labor ,
Employment St anda rds Adm in istration
• r~aterials ~ an be obta ined at
http:/ .www.dol.gov/es.. lwtld.frol.. /
FMLA Military Leave

o Effective January 16, 2009
c 2 Forms of Military Leave:
I, "Qua lifying Exigency·
Han dli ng af f aIrs related t o emplo yee 's. spouse 's,
pa ren t's , or child 's being call ed u p rn sup port of
contingency op er at ion
2. ~Serious I n jury or Illness"
• t eeve to care for a ' cov ered serv i ce m em ber ' who
suffe rs Illness er inj Ury while in servi ce " t nat m ay
ren der the m em ber m edica ll y un fit to perform the
du ties of his/ he r otfrce, gra de. ran k. or rat ing '
Consolidated Omnibus Budget
Reconci liation Act (COBRA)
c Em ployers ", ith 20 Or mor e employees

c Em ployee s/ Fam ilIes abIlit y to ccn uo ue group hea l t h
bene fits
• w m ltE-d periods cf t ime
• Qaall fyln g eve nts:
a ....'clunta ry or Involuot ary )Otllcss
o 'lWu<:tJon In t he hours worl<ed
o Dea th
a DI>(O=
Cl Qualified In<llv l duals u p t o 10 2% ot th e cost to the plan
Cl Not ice Requ il em en ts
Cl Penalt ies
c Mat erl a' s can be obt ained at
http ://www·dcl.goy/dol/topk/he... tkJl.. ns/wbr... htm
LOMAS 9
THE FLORIDA BAR
COBRA-ARRA
c COBRA Contlnuatton Coverage Ass is~n ~e i noer the

Am er ican Recov ery and Reinvestment Act of 2009 (ARRA)
• Premium reductions ano add itional el ection
opportunities
• Eligible indivi duals pay only 35'/0 of t heir COBRA

premiums
• Employer pays 65% is reimbursed to th e coverage
provider through a tax cre cit
• Effect,,,,, March I, 2009, u p to 15 months additional
coveraqe for those w ho became elig lole for COBRA
from Sept ember I, 20D8 through Feb 'uary 28,2010
c cue to an Involunt ary le rm in3 tl0 :1 orernptc vmem
o requires emp10Yer to send noturcanons
Uniformed Services Employment and

Reemployment Rights Act of 1994 (USER RA)
c Oct ober 13, 1994
o Prov ides service members' reemp loyment rights
• Returnr ng from a:tive duty In the unrormeo services,
• Retumlng fr orn t he reserves Or National Guard
• Dlsab(ed veterans
c Employee benefits continuation
D Prohibits employer dlsCflminatJon based on m il it ary service
D Notice Requ irements
• 'Your Right s Under USERRA'
http ://www.~ol.a(:v/ e ! a .....·5. use rra ....t m
c The U.S. Oepartmen: of labor's (DOL) Veterans'

Employment and Training Service (VETS) administers
USERRA.
Florida Statutes 768.096

~ ?r ov ide,; employers faced With cla ims of neg ligent hiring
with a presumption that il acted pro perly ifit per/arms a
oackoround Invest,gat,on of a p rospect ive employee th at
Includes :
A cnmin al background lrl'VeSl lga oen ;
Contacting references:
Comp le:ionof a jab a pphcat icnwn :h Indu::1es quesncns
ebc vt :
gI Crlmll'lat convict)c-I'\s• .}nQ
01 -Uons (o ~ fn~e nt1ontll t.ort:s wllere It.. e
Inv olveme nt 1!1o "rlt bt..
c-cscectwe em p}o .,,~ was a defer.d2! nt;
Obta =ning ",,'nttenauthon zat lon frcrnthe P(OSpe-~I',,'e
employee to dleck hiS/her c:rivers' I,cense recor d if such a
c~ed< is relevant to the ","orl< to be dane; and
Intervl~wlng th e prospecti ve emoiovee .
LOMAS to
THE FLORIDA BAR
Employe e Polygraph Protectio n Acr

of 1988 (E PPA)
c Prohibite d Aets:
• Re: c u l ~ s u l;j 'i ~ !.t an emc 'c-ee (el'"ProsDe-cuveem pl :l)' ~ e:) t:2lk.e! ~ ne
cetectc r les t : cr
us e c r inquire about r6Ulu. 0' a ne oereetc r test 0 1all e mp l!J,' U (Of
crcscecn . .-e e:nploye.e); Or
Dt s Ch~rge. dl sd pCine , dtscr rrntnate .)t; ~ ln 3 ~ • .:: ~ .1y ~mj:: lc y rr: en t gr
pro mot.e :or th reaten) to an em c' c see (or prosoecnve err.' iO·, I!t"
a ~'v! to t lt l... ... tes :
g ::.a tn e N! 1S 0 ' th . ~1$ ora t n t
a to· M 9 . c:e m~6 ' M
a rei" l est t fln;J l !"o lJr.y prO!~~nil or to' ~ '!ro ~ n~ !In.,. ""9~'~! ~. EW;'
Reouifemen:o;s:
o Not ice
• Must display the EPPApost er
a The fmploym e,t St anda rds Ad minist rat ion's Wac;e ar.d Hour
Div ision IWHO ) w ,th,n tne U.S. D"l'''rt mentof Labo"(DOl)
eo~or(e'S th e EPPA
Employee T ermination
c Practices to follow relating to employee

te rm inatio n
• Creat e a file for employ ees
• Issue Warnings to Employees
Social Networking & Background

Checks
a Recent st at ist ics
• Over 9 0% of emp l oy ers conduct some k ind of
backgroun d check
• Ov er 70 ;;' of j ob recruite rs use t he I nt erne t as part of

t he scre ening proces s
o Over 20% hav e respo "lCe:j m survevs that the .... an m.oatec
a cand;date- t asoo ::::n ir: rc· m a':lCn founa c fl:.l":e 'r-et
• v\"hen lay.. f irm recr uiters Viewed candidat es' sc cra:
networki ng w ebsttes :
c Over 6:>0:0 0 :he ~ r o files 21 c \,;a Uy cc nta inej Int or.n .i3 Uo n
su ppc rt mq reievar,t :>rof essicnal q ua tulcancns
o Ove r 30cro or ~ t'e p"of Ues co nv eveda - orofess1c,nal lmag e"
LOMAS II
THE FLORIDA BAR
Recruiting Minefields
c Social network ing sues - legal risk s
• 0e4 amatlcn
• first Ame n<:ment - PUDI ~C SectCr
• T,: Je VII ar.d other protected classes
• In .... astc n of prtvacv
o Why use these sites when recruit ing?
• Obtain! confirm bac 'cproond Inform ! tton
e ove- <4 0 % cr l'Ipplir;.a nts. ue.,:;":I:Jt wc:rk hl:slc ry
1::1 Ov er ~ O % of ~ppUc a n ts. lie O!I >OI,Jteducatioa al t:ISCC :V
CI Over 20 % 'Of appUcan.u (~ ' S l (led Inrormat JoCl
o 8ackg rOUnd c ecks
o Fair Credit Report ing Act Compliance
o fACTA otsnosa t Rule (2005)
Background Checks
c Why conduct them?
• Av oid costly hiring mistakes
• Applicants who will have nexus to the firm's money
• Ne<;II,gent h r. r1 ~ decls,on s
1:1 Hlst¥Y or rnert, viclence, abuse, naressment.etc
o Practice lips
• Stale on employment applicati on what will be che<'<ed
• Use on all applicants for ell classes of employees
• Use of a thlrd-partv, out side agency
• Document the background checks
National Labor Relations Act ("'NLRA")

Cl Even n c n-unrcn employers m ust com ply
" Section 7 - e mployee rlghl to organize and barqam
colie :tively
a Employer may not inte rf e re with " p r otec ted
concerted act iv ities" for the purpose of "collective
bugain ing or other mutual ai d or protection"
o Generally prohibits most confidentia lity ru les

• Pay
• Job benefits
• Terms and conditions of empl oyment
• Employee drsc iphne
LOMAS 12
THE FLORIDA BAR
Workplace Posting Requirerne nts

Federal Posters
[] Job Safety & Health Protection - (OSHA)
o Fair Labor Standards Act (FLSA)
[] Your Rights Under The Family & Medical Leave
Act (FMLA)
[] Uniformed Services Employment &
Reemployment Rights Act (USERRA)
[] Employee Polygraph Protection (EPPA)
[] Americans with DIsabilities Act (ADA)
[] Equal Employment Is the Law (Title VII)
Workplace Posting Requirements, cant.
o Penalties for not posting

o Help for workplace poster
requirements
• httDj flwww .do!.Qov/osbpfsbrefa/po
ster fmatrix,htm
• Posters required depends on th e number
of employees - elaws Advisor:
c http://www.dol.goV lelaws tfi,ststep/ol0,
bQn?b=CLQQOOOOQQQQQQQQQQQQQOQQQQQ
OQQQQQQll
PART II - Florida Laws

o Florida Civil Rights Act of 1992 & Equal Pay
Act
a Florida Whistle Blower Protection Act (FSA
112.3187) & Retal iation
IJ Florida Min imum Wage Act & Child Labor
c Right to Work & Employment at Will
H
o " Guns in the Workplace
o Florida Domestic Violence Leave
o Florida Workers' Compensation Law
LOMAS 13
THE FLORIDA BAR
Florida Civil Rights Act of 1992

[J Similar to TIt le vn
[J Proh ibit s discri mination based on race , rel igion,

sex, nallonal origin, age, handicap, pregna ncy,
and marital sta tus
[J Punitive damag es cap - $1 00, 000
o Prohibits sexual harassment

[J Prohibits retaliat ion
o Handicap claims const rued un der ADA

[] Parallels the Federal Equa l Pay Act
Florida Equal Pay Act

[J Paraltets the FederaI Equal Pay Act
The Preservation and Protect ion o f th e Rigbtto

Keep and Bear Ar m s in M ot a , Vc hicles Ac t of 2008
o "Guns in the Workplace "

o July 1, 20 08
[] Pubhc or pr ivat e em ployers may not:
• J>rohib ll em ployee s from possessina any legally owned

firea rm whe n locked Inside of a priv at e v ehicl e In a
parkIng tot :
• Ask an employ ee If he/she hil s a fi reaon in hIs/her
v ehicle
• u:. nduct a sear ch or the emp loyee 's vehic le
• Take any acti on aga mst an emp loyee tor st at em ent s
ma de regarding possession of a f1rear rr
• Condition Or t errnlnat e ernp lov rnent based on whet h er
an emplcy ee has a firearm license
LOMAS 14
THE FLORIDA BAR
Florida Domestic Violence Leave Law

[] July 1, 2008
c Employers wi th 50+ emp loyees
[] 3 days of leave in any 12- mon th period
• Empl oy ee, fam ily , h ousehold m em ber of em ployee is
a victim of d om esti c or sex ual v iolence
• eav e m ay be wi t h or w it hout pay
• Emp loyee m us: be em ployed 3 + m ont hs
• Can require use of v acallon/slck/PTO
• Em ploy ee m ust prov ide advanced no tice
o UnlB-s l:nminert':. d3'1g-e"
o May not discharg e, dem ot e, suspend, reta liat e
or discriminate
Worker's Compensation Retali ation

F.S. 440.205
[] May not discharge/threaten to discharg e,
intim idate or coerce any employee based on a
val id wor ker's compensation claim
n Actual discharge is not necessary
c May recover lost wages, lost earn ing capacity,
& med ical ben efits
[] Exclusive remed y provision
• Exce ption : Inle ntlo na ltorts
Required Florida State Posters

IJ All Federal Posters
o Child Labor laws
c Minimum Wage
[] Unempl oym ent Compensat ion
[] Worker's Compens at ion
o Righ t to Know
[] Florida CiVil Rights Act
LOM AS 15
THE FLORIDA BAR
Florida & Federal Right-to-Know Laws

c Employees have the right to know about physical
dange rs, hazardous or toxic substances in the
wor kplace. The law requ ires th at employers
disclose the hazards and provi de info rmation to
ensure workers' safety.
c Under Florida Statutes, Chapter 442 , and the
Federal Occupational Safety and Health
Adm inistration, Hazard Communication Standard,
employers must develop a comprehensive
program to Inform employees of hazards they
may encounter In the work place, and also
provide training in the use and handl ing of
products contain ing hazardous chemicals.
Arbitration and Mediation

o Mediation and Arb itration are forms of alternative
disp ute resol ution (ADR)
o Intended to avo id the potentially high Cost and
unpredictable outcome of a laws uit.
o Both are priva te forms of dispute resol utio n. This
means that, unlike a court case, they are not a
matter of publ ic record.
a This confidentiality may be an extremely
important feature to one or both of the parties
involved in the dispute.
o Disadvantage: alternative procedures are not
ofte n bound to renew legal precedent in coming
to a decision, parties can not count on legal
precedent to be determinative of the result.
RRTFB 4-8.4(d) Misconduct

o "A lawyer shall not:
• Engage In conduct in connect ion with the
practice of law that is prejudicial to t he
admin istration of justice, in cluding to
knowingly, or throug h callous indifference,
disparage, humi liate, or discriminate against
lit igant s, ju ro rs, witnesses, court pers onnel, or
ot her lawyers on any basis, including , but not
limited to, on account of race, ethn icity,
gender, rel igio n, national origin, disability,
marital status, sexual orientation, age,
socioeconomic status, employ ment, or phvs icat
charactertstlc;"
LOMAS 16
THE fLORIDA BAR
TIME TO TAKE A BREAK
Lawyer as Employer
PRESENTED BY STEVEN L. SCHWARZBERG
Schwarzberg & Assodates
222 lA lo;~ Aven ~; Suite 210
We:o.t Pal-n seacn. nCi''da .n~Ol
(561) 659- 3300
steve@sd1warzbel"glaw.com
LOMAS 17
PART II
LAWYER AS EMPLOYER
Practical and Ethical Considerations
of Human Resources Administration
in Law Practice Management
Lawyer as Employer
PRESENTED BY:
The Florida Bar's
Law Office Management Assistance Service
(LO~1AS)
800-730-2020
PART II
The Roleot
Human Resources Management
in Law Office Operations
LQPAAS
What we will cover
• What is human resources management
• Policies, Processes and Procedures
• Handbooks
• Manuals
• Training Programs
• Employee Recruitment, Hiring,
Orientation and Training
• Job Descriptions
What we will cover

• Performance Appraisals
• Termination
• Compensation Systems
• Benefits
• Confiict Mediation
• Leadership Styles
A few words . . ,
• LOMAS cannot teach you everyth ing you
need to know about HR in thls one session.
• This QE-DVD is intended to address what
you need to know and how to find resources.
• Managing personnel will tI)' every maternal,
paterna, nurturing fiber you possess.
• There is no single "correct" way to manage

the most important firm asset. Employees
are a shared, lim ited resource with in the firm .
•.O~'Yo.S
2
Human Resources Management
• HR polides must reflect a firm's mission and
goals.
• Nature or the work and dients
• Never try to circumvent laws and regulations
• What is the spirit 0; the law/regulation?
• Legislative intent
• Always have reasons for the firm's policies,
processes and procedures and communicate
them to the firm's employees .
• BU ilds trust
Three to remember
l.AmJree to be managed.
2.ItIlsinlB'O'9{JJtlt to bel ieve that you can
supervise people when you do not
know what it is that they do.
3.~llTMtlt is a support function.
• Being in control for control's sake Is not
management.
The Partner's and
Administrator's Role in HR
• Risk management
• Recruitment, Selection, Train ing,
Supervision, Evaluation/Compensation
• A supervisor administers the policies
and processes of the firm's owners .
• Recommends policy
• Only th e owners approve and direct the
enforcement of office policies
3
Law Office Policy Manuals
l,O r.1,.;5 '"
The effect of firm structure

on policy development
• Authoritarian Style or Cooperative Style
• Confederation of solo practitioners?
• Attorney practice groups.
• Best practices vary by area of law.
• Individual profit centers .
• Each has own "deal."
• Large firm, Mid-sized firm, Small Firm
tOWS
"
Managing Change
• Using surveys to determine trends.
• ALA, ABA, TFB
• According to widely used personality tests
(1'-1yers Briggs; Keirsey), most peopledislike
change, and many people will actively resist
change.
• Managers must communicate that
• Change is part of thejob,
not an exception to the job.
LOMAS
"
4
Who and what are we managing?
• "4-Gen" in the Workplace.
• TradiUonals (Mostly retired),
Boomers (Senior Tsunami),
Gen-X (Sa ndwichiCa' eglVer Generation),
Gert-Y (Ec 0 Boomers).
• Changing nature of the "job."
• Flextime, Job-sharing
• Shift work, part-timers
• V,rtual office
• Independent contractors
• Shrinking labor pool
• Aging of the Profession
is
4-Gen & Workforce Diversity

• 1960 - 60% of U.S. workforce are wh e males
• 2005 - 30% of U.S. workfcrce are white males
• 2009 - Alm05t 50% of U.S. workforce are women
• GenXand Gen Y demand
• Techncl<l9)'. Flexible Hours. Olreer Faths, Ufe Balance
• Boomers demand
• Part-lime w ork. Beginningin 2006. a Boomer turn s 50 every 6
seconds.
• Don't Just adapt, capitalize on diversity
• Work/Family Dilemma: t-lany great employees are
available, but cannot or will not work 9 to 5.
Aging of the Profession

1980 1990 2000 % change
I 198~2000
51% of all la",,!ers 44% of all 1a\\~-er5 33% of all Ia",yer s -18 '>b
under 40 under 40 under 40
370/.: of .lllawye<S 46% of .11 lawyers 56% of all lawyers +19 0/,
40 &.over 40 8< over 40 & o\'er
13% of aDlawyers 10% of all lawyers 12% of ali lowyers ·1 %

over 65 over ss o'le r f>5
24% of all 136% of "II 44%ofall +20%

lawyers are "ge lawyers are age / Iawyers are age
40 -f>5 14 0 . 65 40-65
39 41 ~ .; s MEOIAI~ AGE
~r-o;Y4!le.rr l<;W.S '$
5
What Gen-Y is up to
• ~EchoW Boomers
H
• "The Millennium Generation
• Born 1981-1995
• Job-hopping not a bad word
• Technology skills out the whazoo
• 3 out 4 has a working mother
• lout of 3 Is non-Caucasian
• lout of 4 live in a single parent household
• They have already begun graduating law
school
"
Policy, Process & Procedure
Manuals
• Policy, PROCE~ and Procedures

• Manuals and Handbooks are designed to
give information:
• Set limits and boundaries
• Describes the firm 's compliance with labor
and employment laws.
• Describes how the owners want their firm to
operate.
"
Workflow & Business Processes

• Define how are jobs Interconnected
• Rule of Thumb:
• In larger firms, job descriptions are more narrowly
defined because there are economies of scale that
jUstify single function jobs (e.q., file c1er;<, copy
clerk). In smaller firms, cross-training and flexibility
Is a rundamental aspect 0' the cooperative
management stvte foond In many small law firms.
• Business Processes and Procedures
• Office-wide
• Workflow Processes and Procedures
• Canvary acccrding to office, practice area, location
let-lAS I.
6
Protecting Employees
and Clients' Personal Information
• Identity Theft Prevention

• Programs and Policies
• FfC's Disposal Rule (2006)
• www.FTC.gov
• Technology Usage Policy
• Internet and Social Networking
• e·mail
• Camera phones
• Texting
• Fac;eBook. 'rwitter, LlI1kedlrt, etc.
"
Policy Manuals
• Must emphasize manuals are not
employment contracts.
• Alwars- have an HR specialist or labor &
employment lawyer review the manua l.
• Review the manual every year to determine
relevancy to operations and compliance with
the law.
• There are several excellent form manuals in
the legal marketplace to help you get started.
• ABA, legaI publishers.
• Canbe edited to fit your f irm and orcurnstances,
Process and Procedure Manuals

• No one can write your procedures manual
because no two firms are alike.
• Start with the table of contents
• The skeleton and framework.
• Don't try to write it yourse lf.
• Assign topical groupings of procedures to your
employees to begin drafting.
• Meet frequently, veril'y the procedures.
• LOMAS can help.
"
7
TRAINING
COMAS
Training
• Not a one-time task; an ongoing effort

• Develop a checklist
• Basic procedures
• Equipment
• General purposesoftware
• Specialty software
• Contact LOMAS for assistance
Where to find help with training

• Ask your equipment and software vendors for
training checklists.
• Ask the vendors ror a list of certified trainers In
your locale.
• Audit the training manualsthat came with the
equipment or software and create a checklist to
use with the manual.
• Nevergive an employee a manual and walk
awa;.; ,
l OM.loS
8
Get a grip on technology
• Define purpose of the software/equipment,
how your firm intends to use the technology
before developing a traIning checklist
• Technology comprising up 6% to 15% of a law
firm's gross revenues.
• Firms who are not properly training employees
on the proper use of valuable technology are
wasting resources.
• TlClining, Training and more Training
EMPLOYEE RECRUITMENT,
HIRING, ORIENTATION
AND TRAINING
" )' IAS
Overtime Pay &
Classification of Positions
• Exempt
• Non-Exempt
• Independent contractor
• co you have a contract?
• where to find help:
• www.irs.gov
• www.dol.qov
9
Classification of Employees
• Exempt
• Th ree-pron~ rest
• August 2004overhaul of the "",ge & bour laws
• Non-exem pt
• AlIOid unbidden overume
• IndependentContractors
• Efflav:oral Control, Finanaal ContrQ!,Relationship of the
parties
• Extensi,e instruction. must be trai~ in workplace
procedures, work dependent,,?
• Con susl<lin a profit or loss
• Sigr.lficant rl/lancial investment (tools of the trade)
• Receiving ber.efits, perks
ae
Classification of Employees
• Three-prong test
• 1. Does the employee supervi se someone
else?
• 2. Is the employee directly or indirectly
involved in the hiring and firing of other
employees?
.3. Does the employee work independently?
You might be an employee

(and not an Independent Contractor if.
• You have your own phone extension and

are listed on the firm's internal directory
• You have your own assigned parking
space
• You have a workshift
• You don't work for another company
10
Attendance Recordkeeping
• Must keep attendance on a 40 hour work
week within the same time increment
accuracy as you pay overt ime (e.g., 15
minutes)
• Why keep attendance records on
everyone
• Exempt job status is challenged
• Off-site worker's comp claim
• The receptionist needs to know where
people are!
Job Advertisements
Nuances & Discrimination
• College Student • Part t ime worker

• Handyman • General repairs person
• Gal Friday • Offic e Coordinator
• Young • Energetic
• Older person • Mature
• Young man • Can lift numerous 40
pound file boxes with no
restrictions
Job Advertisements
• SOurces for job postlngs
• School placement offices
• Search firms
• Request a replacement guarantee
• Job fairs & open houses
• Professional associations
• On-line recruiting
• Your existing staff
• The goals of a good job advertisement are
to generate good candidates as well as to
screen out unqualified candidates
LC .......
11
This is a real j ob posting
LEGA,LSECRETARY: &J s; ness l .wyerl~ '"e'\era tle firm,Cf-.:l ,.,, 1
sweett<!artof . guy, seeksreplacementror disl:»BI I€l; ' secretor/who Is
QUttin9 just becauseshe's mO'iingto S,lacauga, Already had ~I en:y 01
aPQIicato1Sfrom candJdates who ',,""Id l ke::> CClTleln a liC e earl. strol
tne halls, cnat 1"1111 frioonds, trO'l It", Intetl' et , <no::k OJt a ccco'e 01
doaJmentsrelyingt otally on SpelCheci<, ..d tneo s., eak :x.(a Iinle "'c',
:0 get the toes dcne. One of us oeedste ha-,e scbsta , ti<llt!>'.P"'ierxe ,n
,ve rd, Ex:elaodo:heroomputer D<OQ'<l ms, 3Ild i~ ~ no: gcing tc be
me. Preferred::3ndJtlates will have been considereda geek In EfY,llish
d . ss, "- mace ~ to llle fit1a1 ~ nd in the61 h grade Sl'!iling bee,
CO"15lj ,,:he Je::pard,. c 'Je<.llOnStDceasy, and Jo:)~ back foodlyon
c!>Opl:1ng wood .v. ,y moming befcre m i'kJog lhe ccws. ExcerJent
ber etits, If plannit\gl or ",cmess ,death, dlsaOlI.:y&o1d age happens to
"PI'6' 1to j'OU. II you know lhe di/lerence ~ "a/lect "and "elfea"
and are reaC,to ...-or1c, ;>easerepl,' tc:
Interview techniques
• Prompting questions
• Avoid questions that requi re a yes or no
• " Tell us how yOU . . • "
• Behavior oriented questions
• Scenarios
• Get the deal breakers out of the way
first
• Do not take notes on the resum e
• What else?
LOMAS
Interview Techniques
• Traits of gooo mt erview ers
• Puts interviewee at ease
• I s o~iectiYe ; keeps personat feelings in
dled<
• Stru<bJring Interviews
• Rappo rt
• Em pathy
• Perspective on applicant backgmu r.d
• Details on applicant background,
education and experience
• ;:valuating special accomplishments

• Co~ S ideri ng the whole picture as a fit for
yo ur fum
ThD Fb uh e,."
12
Interview Techniques
• Topics covered in job offer interview

• Start date or deadline for accepting offer
• Compensation package
• Conditions of a possible offer
• Relocation requirements
• Job requirements
• How reviews, raises and bonuses are
handled
Interviewi ng:
Weak V5. Strong Questions
• Are you a • Give me an example where

leader? you emerged as the leader
of a group. Why? What
were the results?
• Do you set a • Tell me in what ways you

good example set a good examp le for
for others? others to follow?
The Laws - Protected Questions
• Why Should You care?

• Purpose of the Laws
• Review Protected Questions
• Consequences of Violations
• Ask only questions related to the position
• All Selection criteria equally applied
• Refer to Part I of this seminar
as
13
Don't Ask
• National origin
• Mantel status, cruldren
• Religlon/ <reed
• Race/color
• Nuclear family and family planning details
• Arrest reco rei
• can ask' haveyou everbeen COIWicted of a rome?" -I t 1115
reievant to the jOb
• Photograph
• Age, birth date
• Ouzenshp
• exc..pt rc, proofof elg,b·1 it)' to wor!< fn I"" ccun!l)'
eu
Don't Ask
• Mother tongue, first language, native
language
• Except Job-related requrernents, e.g.,how fluent
are you In German; 1'1111 you take a test forus'
• Travel
• cannot ask if travel will conflict with personal life
• Can ask if applicant can travel; be prepared to
discuss how much lravei
• Clubs or associations
• Rentjownjor who lives with you
• Gender related
Job Application
& Reference Checking
• Use a form so you are consistent in checking

the background of all viable candidates.
• Remember that protected questions apply not
only to interviews but also to the job application
and reference checks.
• You may always ask:
• Previous employment
• Oates of hire and last date worked
• Positions held
• Employee's salary history
Lew.:;
14
Job Descriptions
The Foundation of Human

Resources Management
'. or.'AS
Job Descriptions
• Job descriptions help cure problems with
other HR management issues
• Employees not knowing what their job
responsibilities are
• Overlapping responsibilities
• Cross-training and the Silo effect
• Loopholes
• When to hand off to another employee
• Chain of ccmmand re latlonshlps
lO '-"'"
Job Descriptions
• Properly developed job descriptions help
with recruitment and management
efforts.
• Interviews
• Performance standards
• Training and Coaching
• Discipl ine
• Setting Limits & Boundaries
15
Job Descriptions
• Developed from the bottom up
• What does everyone need to know how
to do?
• Software
• Equipment
• Systems
• Processes, procedures
• Skills, education, certifications necessary
LC·.·:·..·
Job Descriptions
• Job Title
• Organizational unit
• Reporting accountability
• Job summary
• Direct Duties and Related Duties
• Prerequisites
"
New Employee Orientation

• Importance of Orientation
• Integration into firm
• Canlake weeks
• Makeappointments
• What to cover
• sets the tone for the employee's work
experience with the firm
• Always usea checklist
• LOMAS can help
LO'MS
16
What's in Your Personnel Folders?
• Why should you care?

• Contents of Personnel Folder can become
the cornerstone of losing or win ning a
wrongful termina tion suit.
• Security. Is there enough information in
the file to create a risk of identity theft?
• Guardboth paper files eno electronic databases
lcM4S .,
Personnel Folders
• Contents
• Employment application
• Other skdls, but ot needed now
• Pre-employment tests
• Reference checks
• Or,entation checklist
• Policy manual receipt
• Emeq;ency cootact Information
• History of evaluations, coaching, training
• Continuing education ecorns
Lor""'';
Personnel Folders
• Keep In separate group files:
• Health insurance information
• 1-9'5
• Performance evaluation forms
• Resumes
• Tax forms - withholding informauon
• Know when employees have a right to
review for accuracy.
ro......
"
17
Progressive Discipline
• Florida is an at-will employment state
• If you Involve me firm in progressive discipline,
you must administer the policy equally among
all employees
• Progressive discipline actions could void the
firm's at-will protection.
• No dtsdpllnary forms or memos - UNTIL the
employee has read & discussed the disciplinary
action with supervlsons),
Performance Appraisals
Appraisals
Gathering Information
• Performance evaluations
• Self Review
• Review from someone other than primary grcup
• Administrator's review
• Primary reviewer
• Avoid line item rankings, however overall
ranking can help bring closure to the form
18
Conducting the Appraisal
• Positive atmosphere
• Start with positive feedback
• Be sensitive
• Ask for solutions, Offer solutions
• Concentrate on future actions
• What the firm needs
• Allow the employee to discuss feelings
• Listen
• Gain agreement future goals
" )"'AS
Delivering Difficult Messages

• C,red criticism at the • No anger or sarcasm
action - no: the person • Listen to the employee
• Acceptir.g constructr-e • Reaffirm support and
crmos m is often hard to connceoce In the person
accept
• GOAL = change
• Fair warning? behavior
• Be s;:Jecif,C, No threats
• Ask, "wnat can [ do to
helpT
Terminations
l O",,"
19
Terminations
• Document, document, document.
• Review the termination checklist.
• Review all documentation with the firm's
managing partner.
• Consider consulting an employment law
attorney.
• Do not terminate an employee in a private
office, select neutral space such as a
conference room.
Terminations
• Face-to-face meeting
• Never terminate by phone, letter, e-mail.
• Second person (witness) present
• Be brief
• Details in writing, if warranted
• Expect emotion
• Insist on helping employee collect his/her
belongings
Terminations
• Terrmnatton checklist
• LOMAS can provide a sample
• Near the top of the list should be steps taken to
safeguard the security of the fi rm:
• Fiml employees
• Firm clients
• Firm data
• Give all money due
• 5everar,ce vs, wages in lIeu of nonce
• Accrued vacation. sick, ether leave
LOMAS
20
SUPPORT STAFF
COMPENSATION AND BENEFITS
LOMAS
"
Compensation Systems
• Remember: You Get What You Reward
• 8enchmark against competing firms
• What compensation frills and add-ens can your
firm prov ide that other fir s are not in your
locale?
• Be prepared to discuss t he entire
compensation package and provide written
documentation
• Beyond wages or salary
• Showme tne money?
• Additional motivators beyond money?
Compensation Systems
• Tools to plan
• Compensable factors
• Compensatio n philosophy
• Mar1<et survey data
• Joo "wo rth"
• Mario:.et value appecacn
• Internalvalueapprcacn - ranklngs
• Payranges and caps
• Raises and bonuses
• Permitted DiSparity
• Consideration for spedllQJlar Irnl ivid~ a ls
• Pitfalls
21
What is your firm's
Compensation Policy
• Is it docu mented for management

review and approval?
• Strategically driven?
• What are the firm's staffing goals?
• Longevity over talent or vice-versa?
• Bonuses are tied to Individual performance,
employee class, or firm results, or all of
these?
OJ
Pitfalls & Traps to Avoid

• Paying the "Going Rate."
I
• Announcing new compensation system until
ready to roll it out.
• Creating your own plan in a vacuum.
• Leaving criteria a mystery
• If everyone is mild ly dissatisfied with the
compensation plan, it's probably pretty good!
• Perfect is the enemy of Good
Compensation System Planning Tools

• Tools
• Compensation planning checklist
• Job descriptions
• Job questionnaires, work logs
• Benchmarking
• Use Surveys
• No two firms (ire alike
• Ask other firms ...
to.."'" .
22
Compensable Factors
• Education • Accountability
• Experience • Loyalty
• Job Complexity • Dependability
• Supervision • Years in service
required
• Training completion
• Accuracy/Quality
• Output/Quantity • Mentoring/helping
others
• Potential
lOtJAS
"
Types of Compensation Systems

• 5kill-basec pay
• Arm must be good at tm ining
• Usuaily .....or1<s only In larger firms
• Offers IJI'ward mobil,ty , but has a ceiling
• Cornpetercv-basec pay
• I-'.any su;Je(llisors don't have th e In-depth knowledge of
""ukers' jobs to manaqe this system pr"llertv. Re!;Uires
attorneyparti Cipation .
• Brcadbendino
• Posted pay~a nges by em pl~ dassiflCatiol1 group, e.g .,
edmtrustraton, secreta ries, pcra le-~als
• Downside is ',andling spectacularem;>loyees who "cap out"
• Vanable Pay Systems
• Ba~ pay plus share of a $S pool
LCI.A,l:.S
Raises and Bonuses

• Merit-based
• seniority-based
• Category-based
• Overtime control
• Spot bonuses, retention, signing
• COLA
• Annual holiday bonus or gIft, or both?
LO:-..v..s
23
•
•
•
Is your plan working?
Perception of fairness @))
In line with firm's financial health
Everyone understands the system
• Pay is relative to job importance
• Competitiveenough that you are not cherry
picked to death
• Compliant with laws
• FleXible enough to attract special talent
LO ~ S
"
Non-monetary Rewards
Employee Motivation
• Recognition - employee of the year

• Staff Appreciation Day
• Choice of rewards
• Movie or event tickets
• Gift card
• Day off
Conflict Mediation
L::ttM
24
Conflict Mediation v! •
• Get training, don't go it alone~~'~~

. • . j~
• set the ground rules .. ~•
• ~ABC" method ~{,
• Acknowledge the problem ,.;
• Restate and confirm
• Boil down the problem
• Clarify and prioritize th e issues
• Choice making
• Br.alnsltOrm
• TIl an k the employee for the effort at resol utiO"
Conflict Mediation con't.

• 2 climen slons of confllct • The 4 R's of conrhct
• n ,'t? lssue • Respcns:bi1ilY
• The emction 5 • Relatio nship
• 4 types of workpla ce • Real prob lem
confilct • Resp« t
• Over ta:ts • Th e 4-step process
lOver process and • Your tum
methods III My turn
• Over purpose • Mutual plannJOg
• Over values • Follow th rough
• t-,.op«ns.tlnatlo:"l
Conflict Resolution can't.

• Active listening
• Paraphrasing
• Open-ended questions
• Oanfying
• Reflecting
25
Minefields
• Feedback relationship
• Facilitate; don't get caught in the middle of a
contllcr between a lawyer and his/her immediate
staff
• Halo/Horns Effect
• Lawyer loves paralegal today; hates tomorrow
• Resources for lawyers
• 00 not confront lawyers in crisis
• Provide resources and a plan for the partners to tleal
with their brethren
LOOAS ,.
Leadership
in Human Resources
Management
LC.t.1AS
Becoming An Extraordinary
HR Leader
• Stay current with • Become a good

trends listener
• leading edge, not • Acrive listening skills
bleeding edge
• Progress - not
• Avoid flavor of the perfection
month step-gap
• Perfect is the enemy
measures
ofgocd
• Develop your
communication skills • Choose consultants
with care
101.u.s
26
Have you been tra ined
to manage others?
• Do you have t he skills and tr aining to
properly manage oth er people?
• If not, learn how to supervise others
• Where to get help and training
• American Management Assodedon
• Society for H!.Jman Resources Management
• Chamber of Commerce
• Communrty Co/lege, Universtr';'
• S!d!!patl1.com
• ABA-I.PM Section Bookstore
• The florida Bar's LOMASProgram
LOMAS
The Florida Bar's
Law office Management
Assistance Service
You've Got Questions?
We've Got Answers!
850-561-5616
27
Bar Journal Article
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News
July/August, 2009 Volume 83, No. 7 Journal HOME
Employment Law for Law Firms: Do the Shoemaker’s Children Need

New Shoes?, Part 1
by Steven L. Schwarzberg, Kerry A. Raleigh, Larry A. Strauss, David I. Spector, Christopher S.
Duke, Lorraine O’Hanlon Rogers, Arlene K. Kline and Scott A. Atherton
Page 69
You love that your secretary Betty plows through lunch to get your letters done and out to the client,
taking bites of her turkey on rye in between keystrokes. You empathize with summer associate Joe,
working until midnight, zealously getting your research done, and think back to your own days of late
nights and flash a knowing smile. You’re grateful for your paralegal Sue, who is always willing to take
work home with her to make sure she gets it done.
The problem is, while you are loving, empathizing, and being grateful, you are potentially violating the
overtime compensation provisions of the Fair Labor Standards Act (FLSA). 1 You also just might be on
the receiving end of a not-so-nice lawsuit from lovely Betty, helpful Joe, and super Sue as a result.
The FLSA presents just one (albeit a large) part of the employment law quagmires facing the
uneducated employer, and law firms are certainly not immune. As lawyers we are often so busy
advising others how to stay out of legal predicaments that we may forget to keep our own house in
order. This article offers some of the housekeeping tips law firms can use to make sure they are
meeting their own obligations as employers.
Sizing Up the Situation

The sound approach is to try to stop trouble before it begins and employ measures at the recruitment
and interviewing stages to minimize future problems. You may have heard the adage, “believe none of
what you hear and half of what you see, and you’ll get along fine in life.” When it comes to resumes
and interviews, that’s sound advice. Don’t rely on them until you have confirmed the claims made on
and in them. Some cases in point:
• Remember Michael Brown, the former FEMA director who gained prominence during the inquiries
about the inadequate Hurricane Katrina relief efforts? Apparently his FindLaw.com profile boasted he
was an “outstanding political science professor” at Central State University. This was not true,
according to a Time magazine investigation, which found he was only a student there. 2
http://www.floridabar.org/...nsf/8c9f13012b96736985256aa900624829/40ca8d2947899718852575d600686d47?OpenDocument[8/5/2009 5:26:14 PM]

Bar Journal Article
• According to a USA Today article in February 2006, Radio Shack Chief Executive Officer David
Edmonson lied on his resume, claiming to have a four-year degree when he didn’t. 3
• More than 50 percent of all resumes are bound to have some form of inaccuracies, ranging from
falsified exam results and exaggerated work experience to blatant lies or omissions.4
It’s not enough to take Bar passage at face value, either. Go ahead and hire an attorney without
confirming he or she is actually licensed by The Florida Bar and let the billing begin. Once it is
discovered that person has been engaging in the unlicensed practice of law, you can take the time to
refund all of those billables, and endure the embarrassment of having to do so. Afterward, you can
reflect on the fact that it all could have been avoided with a 60-second visit to the Bar’s Web site or a
call to its office.5 When hiring recent graduates, ask to see a copy of their Florida Board of Bar
Examiners letter confirming passage of the exam once the results are out, and verify its authenticity.
The due diligence does not stop with attorneys, of course. Support staff and others are also part of the
interviewing and hiring process. Confirming claims on resumes regarding everything from typing speeds
to employment history will help you to gauge a person’s true level of competency and lets you know
you are getting a person whose experience in reality mirrors what is on paper.
On the nuts and bolts side, some of the interview dos and don’ts bear repeating:
• Pregnancy: Off limits. Do not ask questions about family planning, number of children, etc.
• Religion: Avoid commenting on a job candidate’s cross, Star of David, or hex sign, for example. It
may be viewed as if you have issues with those items — and the person. If the candidate is not hired,
it then can become an issue for you.
• Criminal Record: It is permissible to ask if someone has ever been convicted of a crime. Don’t ask if
he or she has ever been arrested.
• Citizenship: Stick to the tried and true: “Are you able to work in this country?”
Can They Stay or Should They Go?

Lawyers come and lawyers go, but surely their departures tend to be the messier of the two
occurrences. Imagine this scenario: It’s five o’clock on a Friday and your prized associate walks into
your office and says, “I really hate to tell you, but I am leaving, and thank you for your client list
because I plan on calling every one of your clients, even though I have only worked for your firm for
six months.” What are your responsibilities to your clients and your firm under the ethical rules when a
lawyer leaves your firm?
First, the Rules Regulating The Florida Bar apply. Rule 4-5.8 6 details the responsibilities for lawyers
and law firms when a lawyer leaves a firm. Among the first questions that come to mind: Who gets to
notify the clients about the attorney’s departure? If you want ultimate control over who gets to pick up
the phone and tell the client, put it in an employment or operating agreement. The Florida Bar has
explicitly said such agreements control the issue.
Absent a specific agreement, the lawyer leaving is not permitted to unilaterally notify clients. The
lawyer and the law firm must work together to develop a joint notice that goes to that client. If you
cannot work out a joint response, then the departing lawyer and the firm are allowed to unilaterally

Bar Journal Article
contact clients. Certain things must be addressed when you make that notification:
• Advise the client the lawyer is leaving.
• Advise the client he or she has the right to stay with the firm, go with the departing lawyer, or pick
an entirely new lawyer/firm.
• Advise the client if he or she leaves, the client is still obligated to pay the firm’s fees and costs that
existed as of that date.
Also, when it comes to client notification of an attorney’s departure, it doesn’t matter if the person is
an associate or a partner. As in the practice of law in general, it’s all about the relationship the lawyer
has developed with that client. That relationship triggers the notice that must be given following the
rule.
Furthermore, a firm cannot restrict a lawyer’s ability to practice law after his or her termination. The
Florida Bar, in Ethics Opinion No. 93-4,7 found that an employment agreement that 1) prohibited an
associate during the two years following the associate’s departure from the firm from soliciting the
firm’s clients and inducing the firm’s employees to quit; and 2) required that if the associate did solicit
a firm client and the client followed the associate, the associate was required to pay the firm 50
percent of any fees generated, violated Rule 4-5.6(a), which prohibits agreements that restrict the
rights of a lawyer to practice after the termination of the relationship.8
Rule 4-5.6 states that you cannot enter into an agreement with a lawyer that restricts the lawyer’s
ability to practice law after his or her termination. As a result, it is very clear that non-compete
agreements between attorneys are unenforceable. The Bar’s Ethics Department also advised restrictions
on attorneys’ fees are also impermissible, because they unfairly interfere with the attorney-client
relationship.9
They Can Leave, But They Can’t Always Take It With Them
Removal of client files is often another area of contention when an attorney departs a firm. Here the
answer is clear, courtesy of The Florida Bar Ethics Opinion 69-1. In the absence of controlling
governance language in a partnership or operating agreement, the files belong to the firm. A departing
lawyer cannot take those files, absent the client’s express consent.
One area of perceived ambiguity often arises over clients who’ve not paid their bills. Here, too,
however, the answer is clear. A law firm cannot hold the client’s file hostage in an attempt to get the
client to pay its bill. Doing so interferes with the client’s new lawyer’s ability to effectively represent
the client, and you run the risk of a Bar grievance.
Attorneys (especially partners) also need to be mindful of their fiduciary duties to their firms, and the
applicability of the Uniform Trade Secrets Act (UTSA), which has been adopted in Florida.10 Such
things as a firm’s business plan, financial information, and client list are generally protected under the
UTSA. If an attorney decides to take such information on his way out the door, UTSA offers the firm
an avenue for enforcement, including injunctive relief.
Overtime
Now that you’ve worked through some of the issues involved in the arrival and departure of your
attorneys and staff, let’s contend with a critical day-to-day concern: the hours your non-exempt
employees work, and how you pay them for that work — notably, the hours beyond the standard work
week. A law office generally does not keep “banker’s hours.” Indeed, many attorneys and staff get to

Bar Journal Article
work early or stay late every day (often both), and staff — especially paralegals, interns, and law
clerks — may join attorneys in working some hours on the weekends. Given the more professional
rather than clerical nature of their work, the temptation to classify paralegals, interns, and/or law
clerks as exempt employees may be appealing, but firms must avoid the temptation of doing so.
Under the FLSA, wage and overtime exemptions exist for bona fide executive, administrative, or
professional employees.11 The professional and administrative exemptions each require that the
employee be paid a salary of at least $455 per week in order to apply. However, this salary threshold
is just one requirement. Even assuming that the salary requirement is met, paralegals, interns, and
law clerks may not fall within these exemptions. A closer look is needed.
Paralegals. The skill sets, backgrounds, and experience levels of paralegals may vary considerably,
fueling a desire to claim a professional exemption where the qualities lie on the high end of the
spectrum. For example, Paralegal A has a four-year college degree and 10 years of experience, reviews
and assesses documents, prepares draft discovery requests and responses, as well as pleadings —
everything up through the final approval and signature of the attorney. Paralegal B, on the other hand,
may have a high school diploma and perform slightly more than secretarial tasks.
Despite those glaring differences in our sample paralegals’ skill sets, Paralegal A is not exempt from
overtime. The Department of Labor has addressed this issue, consistently finding that paralegals do not
fall within the most applicable exemptions — administrative and professional. 12 Most paralegal
positions do not require a prolonged course of advanced study in the field of science or learning
required for the professional exemption. 13 Further, because the paralegal is subject to the final
approval and review of an attorney, the paralegal position does not require the requisite level of
independent discretion and judgment to qualify under the professional or the administrative
exemption. 14 If the paralegal’s work is being billed to a client, he or she is probably a production
employee, and, thus, ineligible for the administrative exemption in any event.
Of course, as with most things in the law, there are exceptions: If a paralegal has an advanced degree
in a field other than law, and uses that advanced degree in the performance of his or her duties, the
paralegal may be exempt. For instance, if a paralegal has an engineering degree and uses it to advise
an attorney on an application for a patent, then that paralegal may be exempt under the FLSA. 15
Interns. It is important to know the difference between a volunteer (or perhaps unpaid internship) and
an intern. You may be approached by a bright-eyed, first-year law student who wants to come to your
firm over the summer for the experience and work for free. It is a very nice offer from your
perspective. However, the Department of Labor and the courts don’t recognize a volunteer relationship
for private, for-profit companies. 16 So what you may have is an employee who needs to be paid
minimum wage and overtime.
There are certain criteria which must exist in order to have a bona fide internship.17 Essentially, the
internship should focus on the training and educational type instruction that is for the benefit of the
intern. If the internship relationship offers a material benefit to the employer (such as being able to bill
clients for a substantial portion of the intern’s work), chances are it may not be a bona fide internship.
In such instances, the intern may be considered an employee and firms must pay them at least the
minimum wage and overtime.
Some colleges and law schools have a clinical program with a curriculum and a lot of oversight. Such
programs probably do qualify as internships. However, for the intern recruited through a nonschool-

Bar Journal Article
sanctioned program, firms need to be very cautious about how they compensate interns. The
conservative, perhaps safer, approach is to consider them nonexempt employees, and pay them at
least the minimum wage and overtime.18
Law Clerks. FLSA exemptions for law clerks can be a tricky business. Some law firms treat law clerks
as exempt under the FLSA, typically relying on the professional exemption. Although the professional
exemption can apply to licensed attorneys who have achieved their juris doctorate, law students do not
yet have their license or degree, nor are they allowed to actually practice law (subject to limited
exceptions).
Employers have to keep a close eye on the type of work law clerks are doing. For example, if clerks
spend a lot of time doing clerical or other administrative work, they may not qualify for an exemption.
Moreover, if the law clerk is really acting as a paralegal, he or she may not be exempt as set forth
above. Thus, in light of the uncertainty surrounding law clerk exemptions, the safest approach may be
to treat them as nonexempt employees, in which case they would be entitled to overtime compensation
as well.
Time Management
Once you determine whether an employee is exempt or nonexempt, you have a baseline to determine
who is entitled to overtime. Then it becomes a matter of managing that overtime through the policies
you implement.
Under the FLSA, the employer has the burden to show that its time and pay records are reliable. 19
These records will have to overcome an employee’s verbal claim of working off the clock, through
lunch, or at home. If you let an employee take work home, what mechanism do you have in place to
show that he or she worked one hour as opposed to six hours? If you allow employees to work through
lunch or on weekends, how will you prove you paid them for all hours worked?
For nonexempt employees, firms should consider having a rule against working unauthorized overtime.
While you have to pay an employee for any overtime worked — even unauthorized overtime (if they
work it, they get paid for it), an employer can discipline an employee for any unauthorized overtime.
Some firms also require that employees review and sign their time and pay records and have a policy
in place that instructs employees to notify their supervisor if they believe their pay or time records are
not accurate.
Although you do not have to pay your independent contractors and exempt employees overtime under
the FLSA, you must also be careful as to both.
Independent Contractors. If you have true independent contractors, they are not employees, and as a
consequence, you don’t have to pay them overtime.20 However, just calling someone an independent
contractor doesn’t make it so, nor does just having a contract with them. 21 The Department of Labor
and the courts look at the economic reality of the situation, and have actually laid out a number of
factors to consider as part of a fact-intensive test. 22
For example, if a firm hires a lawyer and calls him an independent contractor, but controls the work he
or she does, how and when it is done, assigns staff to that person, and reimburses the individual for
any costs incurred, chances are the so-called independent contractor is actually an employee. So if the
individual is paid hourly, he pr she needs to be paid overtime because, as stated above, to qualify
under these exemptions the employee must be paid a bona fide salary. If you lose the salary
component, you most likely lose the exemption.

Bar Journal Article
For exempt employees, an area of concern is not doing anything to jeopardize their exemption. If you
start making improper deductions from an employee’s salary based on the amount of hours worked,
this may no longer be considered a true salary — at which point you may lose exempt status.23
So what is a proper pay deduction? 24 A basic example includes when an exempt employee misses or
is absent from work for one or more full days for a personal reason other than sickness or disability, or
an employee takes an unpaid leave of absence under the Family Medical Leave Act of 1993 (FMLA). 25
An isolated mistake is not necessarily going to cost an employee’s exempt status. However, if the
employee can show a common practice in which every time an exempt employee works a half-day, the
employer makes a pay deduction, it is likely to support a finding that the employee lost his or her
exempt status. 26
Thankfully, the FLSA has a safe harbor provision to protect an employer from losing the employee’s
exempt status. There are three factors an employer must satisfy to benefit from the provision:
• Have a policy in place, preferably in writing, that is given to employees and specifies the employer
will not make improper pay deductions and provides a complaint mechanism;
• Reimburse employees for any improper pay deductions made;
• Do not make any willful violation or continued violation of the improper pay deduction once the
employer or other employees complain about improper pay deductions. 27
To minimize the risks of running afoul of the FLSA, firms should ensure that their employees are
properly classified as exempt or nonexempt, keep accurate time and pay records, have appropriate
policies in place, and protect the exempt status of their exempt employees.
1 29 U.S.C. §201 et seq.
2 Daren Fonda & Rita Healy, How Reliable Is Brown’s Resume?, Time (Sept. 8, 2005), available at
http://www.time.com/time/nation/article/0,8599,1103003,00.html.
3 RadioShack CEO Lied on Resume, USA Today (Feb. 16, 2006), available at
http://www.usatoday.com/money/companies/management/2006-02-16-lying-exec_x.htm.
4 Steve Boggan, Nice CV, Shame About the Lies, The Guardian (UK) (October 10, 2006), available at
http://www.guardian.co.uk/money/2006/oct/10/workandcareers.g2.
5 The Florida Bar, Find a Lawyer, http://www.floridabar.org, click on “Find a Lawyer,” or call (850)
561-5832.
6 Rules Regulating The Florida Bar 4-5.8, available at

https://www.floridabar.org/divexe/rrtfb.nsf/FV/5FD4074FB6E696DE852570DF006EDDE9.
7 Florida Bar Ethics Opinion 93-4, available at

http://www.floridabar.org/tfb/TFBETOpin.nsf/EthicsIndex?OpenForm.

Bar Journal Article
8 See id.
9 See id.
10 Fla. Stat. §§ 688.01-688.09 (2007).
11 29 U.S.C. §213; see also 29 C.F.R. Part 541. (For administrative exemption, see 29 C.F.R.
§541.200-§541.204; for professional exemption, see 29 C.F.R. §541.300-§541.301).
12 See DOL Wage and Hour Opinion Letter, 2005 WL 3638473 (December 16, 2005); DOL Opinion
Letter, 2006 WL 2792441 (July 24, 2006).
13 29 C.F.R. §541.301(e)(7).
14 See DOL Wage and Hour Opinion Letter, 2005 WL 3638473 (December 16, 2005); DOL Opinion
Letter, 2006 WL 2792441 (July 24, 2006).
15 29 C.F.R. §541.301(e)(7).
16 See DOL Fair Labor Standards Act Advisor — Volunteers, available at

http://www.dol.gov/elaws/esa/flsa/docs/volunteers.asp.
17 See DOLWage and Hour Opinion Letter, 2006 WL 1094598 (April 6, 2006).
18 Note that under 29 C.F.R. §541.304(c), employees engaged in internships, whether licensed prior to
the commencement of the programs, qualify as exempt professionals if they enter such program after
earning the appropriate degree.
19 See 29 U.S.C. §211(c).
20 See Dole v. Shell, 875 F.2d 802, 804-805 (10th Cir. 1989).
21 See id. at 804.
22 See id. at 805.
23 29 C.F.R. §541.603(a).
24 29 C.F.R. §541.602(b) sets forth proper pay deductions.
25 29 U.S.C. 2601, et seq. Unpaid FMLA leave is designated as appropriate under the FLSA in DOL
regulations, 29 C.F.R. §541.602(b).
26 29 C.F.R. §541.603(b)-(c)
27 20 C.F.R. §541.603(d).

Bar Journal Article
Steven L. Schwarzberg, Kerry A. Raleigh, and Larry A. Strauss of Schwarzberg & Associates, and
David I. Spector, Christopher S. Duke, Lorraine O’Hanlon Rogers, Arlene K. Kline, and Scott W.
Atherton of Akerman Senterfitt, all collaborated on the CLE presentation that formed the basis for this
article. Rogers and Strauss edited the article.
This column is submitted on behalf of the Labor and Employment Law Section, Eric James Holshouser,
chair, and Frank E. Brown, editor.
[Revised: 07-01-2009 ] Journal HOME

© 2005 The Florida Bar | Disclaimer | Top of page |

Staff Management Self Audit
The Questions
A large part of a client's impression, of your law firm will come from the actions of your
staff. It is critical to your success that your staff is well trained and motivated to
provide excellent service to the firm's clients. Check your policies and procedures
against the following list of questions:
Question – Staff Management Yes No N/

A
Do we clearly communicate expectations of performance to all

firm employees?
Do we have a current office policy and current procedures

manual?
Do we have written job descriptions for each support staff

position?
Do we clearly communicate to employees how they will be

evaluated and compensated?
Do we provide all employees, including lawyers, with a copy of

the Bar Rules and help them to interpret how these rules affect
law office operations?
Do we train employees in the ethical requirements of working in

a law office environment and clearly communicate their limits
and boundaries as support staff personnel?
Do we keep staff members informed and give them an

opportunity to offer input regarding matters affecting them?
Do we properly supervise employees by reviewing their work?
Do we set a good example for our staff by creating,

implementing, and monitoring dependable office policies and
The Florida Bar’s Law Office Management Assistance Service (LOMAS)
Staff Management Self Audit Questionnaire
Page 2
Question – Staff Management Yes No N/

A
systems, (i.e., docket/work control, conflicts of interest, good
documentation, etc.)?
Do we encourage and motivate employees to take pride and

ownership in their work?
Do we provide support and assistance for staff members in the

handling of disrespectful, rude and otherwise out-of-line clients
and others?
Do we keep our staff informed as to our whereabouts and

schedule?
Do we provide a safe workplace/office environment?
The lawyers in the office must recognize the critical functions performed by staff in the
office and acknowledge that this expertise is a necessary ingredient in the law firm's
ability to serve its clients. Some lawyers who have never been law office employees
themselves have difficulty supervising and motivating staff because they do not know
how to look at issues from an employee's point of view. This makes it even more
important to learn to listen to what the law firm staff is saying.
Documenting expectations and communicating how the firm runs the practice, and the
business, accomplishes many positive things in a law office. Here again, the
Communication Process interrelates with another important business process, the
Personnel Management Process. Law office employees must have recent, written
instructions about how their jobs will be performed and management performance
expectations.
• What their job is and is not. (Position descriptions).

• How the firm and the partners want the employees to do their jobs—not a re-
hash of the procedures from the employee’s previous employer. (Processes and
Procedures)
• Why does even the smallest law office need a Policy, Processes, and
Procedures Manual? If the firm does not have a procedures manual and
orientation training, employees will use what they already know to get the
Page 3
job done. What if the new employee’s last place of employment was an
office of chaos?
• Limits and boundaries (No matter how much the support staff members
have learned by experience, they are not the firm’s lawyers).
• Standards and conventions. Is there is consistency in what things, actions
and functions are called, many tasks are made easier (e.g., records
management, document management, staff training, etc.)
• Example: If an attorney is looking for a particular motion for
summary judgment on the firm’s computer, will s/he have to look
once for “motion for summary judgment” or will s/he have to
conduct several searches: “MSJ,” “Mtn S/J,” “summary judgment
motion,” etc. If there is consistency in our procedures, less time is
wasted.
• How will the support staff will be trained and cross-trained? Cross-training is a
critical on-going need for small to mid-size law firms that do not have “depth” in
support staff ranks (e.g., both bookkeepers are unexpectedly unable to come to
work).
• What is the culture of the office?
• What potential is there for promotion? (be honest)
• Support staff personnel should not be placed in the position of prioritizing
attorney work product. To do so is very stressful to the employee, moreover,
the attorneys involved in such a situation are “asking for trouble.”
• A common complaint from support staff is, “I don’t know what to do next
because it all needs doing.” Many people will not work (for too long) under
these conditions.
• Lawyers should, as a matter of policy, discuss workloads, deadlines, and new
assignments at daily or weekly meetings with their team members.
• The importance of documenting workflow and business processes is discussed on
the DVD. How well does your office document the way the office works and is
management accomplishing two important objectives:
• When support staff are absent, written procedures can act as a checklist
ensuring that lawyers, substitute, on-call or temporary staff do not overlook
duties that are normally handled by the absent staff person; and
• Written procedures enable new employees and temporary support staff
personnel (who may have office experience, just not in your office) to be
more useful, sooner.
• “It is arrogant to believe we can supervise others if we do not know what it is
they do.” Attorneys should have a general working knowledge (not be an
expert!) of all the staff duties and responsibilities in the law office.
• Performance Evaluations. How will management conduct performance reviews?
What are the measurement criteria? How the support staff will be compensated?
Page 4
• Support staff compensation and performance measurement systems vary greatly

from firm to firm. However, every law firm should conduct a performance and
compensation evaluation at least once per year.
• Employee reviews start with a good job description. How can performance
be measured if there are no minimum thresholds for performance and
assigned duties? How can the law firm compare salary survey information if
there are no written benchmarks?
• Job descriptions should begin with the skills everyone in the firm must have.
From there, we begin to add requisite skills for the particular job. It is
recommended that employees assist management with the development of
the job description. In some instances, the employee can be asked to
prepare the first draft. Job descriptions should be reviewed for accuracy
every year, or whenever reorganization occurs or when a significant new tool
is added to the firm’s resources (e.g., new software, etc.).
Add Job Description Forms

Add Training Forms
Add Termination Checklist
Add Orientation Checklist
Add Interviewing Dos and Donts
Create Table of Contents
Look for other HR forms to add for course materials

Building a Job Description
LOMAS SAMPLE POSITION DESCRIPTIONS
INTRODUCTION
LEGAL ASSISTANT / LEGAL SECRETARY
A Legal Assistant or Legal Secretary possesses broad-based specialized training in

law office process and procedures above that of a clerk or receptionist. Legal
Assistants/Legal Secretaries assist the lawyer in managing the individual law practice.
Manage case-related projects and act as team leader to the other support staff
personnel (e.g., records clerk, file clerk, services clerk, receptionist, data entry
specialists, bookkeepers and the like) in the delivery of the work product. This is not
a supervisory position; rather the incumbent must have a sufficient degree of
knowledge and interpersonal skills to coordinate the firm’s resources resulting in the
efficient, timely delivery of the attorney work product.
A Legal Assistant or Legal Secretary:
• Monitors, and often maintains, the attorney and/or paralegal calendars on cases
and other legal matters.
• Manages attorney calendars of non-client, but firm-related activities.
• Manages task lists and contact databases to avoid duplication of entries.
• Arranges courthouse appearances, meetings, mediations, arbitrations,
depositions, and other client matter related activities and creates a reminder
scheme for same.
The work also includes:
• Telephone call management

• Basic legal research or Internet research under attorney supervision
• Act as backup, when necessary, to other key legal support personnel, e.g.,
reception
• Monitor the attorney’s case list to ensure that all files receive proper attention,
and that all clients receive regular updates on their legal matters;
• Monitor the accuracy of the case management databases and files
• Processes documents and produce final drafts and other work in progress for
attorney review.
LOMAS SAMPLE POSITION DESCRIPTIONS
INTRODUCTION
PARALEGAL
Paralegals have specialized legal training above that of the Legal Assistant or Legal
Secretary. Paralegals are expected to assist the attorney in:
• Drafting legal documents under attorney supervision.

• Maintaining the firm’s forms file.
• Creating case notes.
• Organizing complex legal files.
• Indexing case/matter-related material, in either paper or electronic format.
This may involve the use of practice specific software.
• Perform legal research under the attorney’s direction.
• Help prepare attorneys for trials, significant hearings, and important meetings.
LOMAS SAMPLE SUPPORT STAFF EVALUATION FORM
ADMINISTRATIVE/SUPPORT PERSONNEL PERFORMANCE EVALUATION
Employee Name Job Title Evaluation Date
Supervisor’s Name Supervisor’s Title Due Date
PART ONE: KEY JOB RESPONSIBILITIES

In order of priority, list the top responsibilities of this position or attach the current job description.
PART TWO: REVIEW AND EVALUATION OF KEY OJBECTIVES

List key objectives to be accomplished or maintained. Provide brief explanations that specify what is to be produced, or
learned, and firm standards met or maintained (quality, quantity, cost, and timeliness). Discuss the mid-year progress review
as well as this year-end evaluation. Note accomplishments, areas for improvement, and/or any new objectives.
Example Objective: Client Service Reviewer’s Statement
Example Objective: Master the features of the new Reviewer’s Statement

telephone system and train others to use it properly.
Objective: Reviewer’s Statement

PART THREE: JOB PERFORMANCE
Instructions to the Reviewer:
Identify positive job behaviors, which contribute to overall job performance. If a pre-selected behavior listed below
is not applicable to this position, please indicate such by utilizing “N/A”.
List additional success factors that you believe are important in the space designated “Other.” Discuss each
relevant job behavior, specifying both areas of strength and, if applicable, areas for individual and team
improvement.
Administrative/Support Staff – Job Behaviors – Review and Evaluation

1. Planning & Organizing: Organizes the work day to Reviewer’s Statement
achieve short- and long-term job objectives and deadlines;
sets priorities and allocates time and resources properly.
2. Adaptability/Resourcefulness: Works effectively during Reviewer’s Statement

periods of high activity, and with varying personality styles, to
accomplish tasks; seeks out and utilizes available resources.
3. Judgment & Decisiveness: Utilizes information and logic Reviewer’s Statement

to develop alternative courses of action when deciding upon
the best strategy for a given situation; takes action in a timely
manner.
4. Client Service: Actively listens and conveys understanding Reviewer’s Statement

of clients’ goals within the scope of the firm’s representation of
client matters and cases. Displays sensitivity to clients’
needs. Upholds the firm’s confidentiality policy.
5. Impact: Sets a good example, and creates a positive Reviewer’s Statement

impression on others, gaining their respect and confidence;
displays a positive and professional image.
6. Team Orientation: Accomplishes tasks working with Reviewer’s Statement

others and being a good team player; recognizes how his/her
decisions may impact others; seeks input from others.
7. Leadership and Initiative: Is a self-starter; seeks to Reviewer’s Statement

influence events rather than just react; originates action;
works with others to develop more effective ways to do the job.
8. Other (Please Define) Reviewer’s Statement

OVERALL PERFORMANCE EVALUATION
Consider what has been accomplished during the review period, and how the firm can help the employee to
continue to develop additional skills, improve performance, or maintain optimal performance.
Demonstrated Strengths:
Areas for Improvement:
Using the following descriptions, please evaluate the overall job performance, selecting the description that most
closely identifies the overall performance:
_____ Exceeds Expectations: Performance and results frequently exceeded the position’s requirements and
expectations. Written objectives were achieved. The employee’s efforts and contributions enhanced or improved
the effectiveness of the team and the firm.
_____ Achieves Expectations: Performance and results meet all position requirements and expectations. Written
objectives were achieved within acceptable firm standards. There may have been some accomplishments that
exceeded expectations and some areas where results did not fully meet expectations. Similarly, the performance
behavior is generally consistent with position description for this job. On balance, this is a good performer.
_____ Needs Improvement: Performance and results met some, but not all the job requirements and
expectations. The need for further development and/or improvement is recognizable. Sustained progress and
improvement are required.
_____ Unacceptable: Performance and results are not acceptable. The position’s requirements and expectations
have not been met. Performance must improve to an acceptable level or additional corrective action will be taken,
up to and including possible discharge.
PART FOUR: INDIVIDUAL DEVELOPMENT PLAN
In conjunction with the support staff member, outline any necessary plan for additional training or performance
improvement by acquiring new skills or new performance levels. Provide a timeline. Personal development and
performance enhancement activities may include firm-sponsored in-house training and seminars, and may include
on-the-job assignments, and employee self-development activities, etc. Be certain to take into consideration
areas of demonstrated strengths and areas for improvement (Overall Performance) when developing this plan.
Development Plan:
Employee Comments:
APPROVALS
REVIEWED BY: TITLE: DATE:
EMPLOYEE SIGNATURE: DATE:
(EMPLOYEE’S SIGNATURE DOES NOT NECESSARILY CONSTITUTE AGREEMENT WITH THIS EVALUATION)

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LAWYER AS EMPLOYER

COURSE NO. 1091D

Building an effective team starts

SUMMARY OF COURSE CONTENT

5. “Guns in the Workplace”

The Florida Bar’s

Other Activities, Honors & Awards

• Association of Legal Administrators Regional Vice-President 1991.

Education Florida State University 1983-1985, accounting and business coursework

for The Association of Legal Administrators:

Practical and Ethical

in Law Practice Management

Law Office Management

Assistance Service (LOMAS)

800- 7 30- 2020

ERESENTED BY STEVEN L. SCHWARZBERG

PART I - Federal Laws

c LABOR AND EMPLOYMENT LAWS

Federal Laws in this Presentation

o FLSA Fair labor Standards Act

Federal Laws in this Presentation

Federal Laws in this Presentation

Fair Labor Standards Act ("FLSA")

THE FLORIDA BAR

C Generally no insurance coverage - employment

FLSA - Potential Costs

Immigration Reform & Control Act

Occupational Safety & Health

[J General Duty Clause - to provide safe working

• HI N~ , Carpal Tunnel Syndrome, et c.

Americans with Disabilities Act (ADA)

qual ified Individuals

• Physical/mental im pair ment that

ADAI ADAAA cont.

o EEOC FAQ - ADAAA

American with Disabilities Act,

Equal Pay for Equal Work

Lilly Ledbetter Act

Health Inforrnario n Ponability and

Accountability Act of 1996 (HIPAA)

c Protected Healt h Information (PHI )

Title VII of the Civil Rights Act of 1964

o ',latertals can be obtained at

The Fami.ly and Medi cal Leave Act

The F amily and Medical Leave Act

FMLA Military Leave

Consolidated Omnibus Budget

Reconci liation Act (COBRA)

c Em ployers ", ith 20 Or mor e employees

c COBRA Contlnuatton Coverage Ass is~n ~e i noer the

• Eligible indivi duals pay only 35'/0 of t heir COBRA

Uniformed Services Employment and

c The U.S. Oepartmen: of labor's (DOL) Veterans'

Florida Statutes 768.096

THE FLORIDA BAR

Employe e Polygraph Protectio n Acr

c Practices to follow relating to employee

Social Networking & Background

• Ov er 70 ;;' of j ob recruite rs use t he I nt erne t as part of

National Labor Relations Act ("'NLRA")

concerted act iv ities" for the purpose of "collective

bugain ing or other mutual ai d or protection"