On Retainer: Your In-House Counsel

by Daniel Foster, Esq. and Michael Gates, Esq.

Small and mid-size business owners beware, you are in the crosshairs. After the changes in Colorado law in January 2015 opening the door to discrimination suits against employers with fewer than 15 employees, the number of claims being filed by employees against their employers has skyrocketed. Filing lawsuits against an employer has turned into a cottage industry and can be quite lucrative. (Note: if you are an employee of Foster, Graham, Milstein & Calisher, LLP you can disregard everything I am saying!)

The reality is there are many valid complaints an employee can have with his/her employer and in many of those circumstances a rational discussion between the parties can resolve most issues. Yet there are some cases that cannot get resolved and end up in court. Some make sense, many others do not. Small, and even mid-size, business owners know you are struggling to run your operations, pay your bills, fix the copier (again, ugh!), market new business, and somewhere in the middle of all of this you have a disgruntled current or former employee complaining that he/she was treated unfairly, or worse, illegally, by you or one of your managers. If you mix in a highly aggressive attorney and encouragement from friends and family, it can be a recipe for real headaches and financial strain.

So, you say, “Thanks Danny for cheering me up, but what’s a small business to do?” Great question! And many of the solutions are easy ones. As I have previously explained, our law firm, Foster, Graham, Milstein & Calisher, LLP, is fortunate to have many exceptional lawyers. One is our partner Michael Gates. Michael’s practice focuses on employment law for small and mid-size businesses and he has some words of encouragement and help for you, as well as an opportunity to learn what you can do, face to face for free. Take it away Michael.


Thank you, Danny. I will give you an example of something vexing many employers right now. In January 1806, John Adams wrote a letter to Benjamin Rush labeling Alexander Hamilton the “bastard brat of a Scotch peddler.” Adams was so fond of this label, in fact, that he used it at least twice more in correspondence referencing Hamilton. Not to be outdone, John Quincy Adams referred to Thomas Jefferson as a “slur upon the moral government of the world.” Something about apples and trees. Even across the Pond, Winston Churchill on Prime Minister Clement Attlee: “He is a modest man with much to be modest about.” Benjamin Disraeli said of William Ewart Gladstone, “[i]f Gladstone fell into the Thames, that would be a misfortune, and if anybody pulled him out, that, I suppose, would be a calamity.” While our friends speaking the Queen’s English may be somewhat more refined, there truly is nothing new under the sun.

Today, employers must deal with a workforce with social media accounts who have been taught they can change the world 140 characters at a time. Every employee has his/her own little platform to announce to the world their views on any topic, including expressions of disagreement with those who do not share their beliefs. The sad truth is that it has become easier and easier to resort to shaming, insulting, and demonizing those we do not agree with on any topic. And, the result can be devastating to employee morale and, in some cases, to the employer’s business directly. Words like “snowflake” have made their way into mainstream public discourse. Social media provides a platform to call people names you would never say to their face, like “stupid” or an “idiot” or even a “special kind of stupid.” We live in a world where we are told we are important and that our views should be expressed, and express them we do. History will judge what we may have sacrificed in the process.

In the meantime, employers have to deal with an ever more outspoken workforce. We have been extremely fortunate here at FGMC to co-exist as conservatives and liberals, Democrats and Republicans, religious and non-religious, without resorting to that level of communication. (Though we have not been tested with an admitted Raider fan…yet.) Not every employer is so lucky. The truth is, the level of insults, shaming and demonizing, whether aimed directly at a person or indirectly at a group of people, can and will affect employee morale, productivity, and, in some cases, safety. Political and, even, hate speech are a reality for every employer.

What can an employer do to protect their company when it comes to this activity? What are other landmines that employers face on a daily basis that with a little guidance can be avoided? Sexual harassment, ADA compliance, FMLA, wages, etc. The exposure is significant and most small and medium sized businesses do not have the ability to hire in-house counsel to provide legal advice and direction. Small to mid-size businesses, who have limited in-house human resources capacity, are a particularly ripe target and can quickly find themselves living on the edge and hoping for the best. For the small to mid-size employer, we see a number of easily avoidable, recurring issues/mistakes:

  1. Properly classifying employees. Perhaps the number one issue for the Department of Labor.
  2. Tracking and paying vacation time. Many employers are still surprised to discover Colorado considers unused, unpaid vacation as “wages.”
  3. Failing to have a written anti-harassment/anti-discrimination policy. It will be the first thing the government and employee’s attorney want to see.
  4. Properly documenting employee misconduct and performance. Many discrimination and harassment suits can be avoided by simple documentation.
  5. Tracking employee hours. It is easy to let this slide and painful when you do.
  6. Knowing when, and when not, to offer severance upon termination.
  7. Policing professionalism in the workplace.
  8. Failure to address and end inappropriate use of office e-mail and computers. Everyone has a story about an employee who forwards tasteless, racist, or other offensive humor or who uses company computers to access inappropriate material, creating a possible hostile work environment in the process.
  9. Having a legal social media policy for employees.
  10. Knowing when to use (and to enforce) non-compete agreements.

At FGMC, we focus on employment solutions for the small to mid-sized employer here in Colorado and would be delighted to help you! Being an employer in 2017 is much different than 1997, 2007 or even 2016. There are many traps an employer can find themselves in and it’s critical to know many of these dangers before you fall into them. We encourage all business owners, small, medium and large to join us at our first FREE Employer’s Boot Camp where we will give you many pointers about how to avoid exposure and protect yourself and your business. We will have two lunch sessions at our office - the first on Tuesday, August 22 and the second on Wednesday, August 23 from 11:30 a.m. to 1 p.m. Each session will be capped at 12 people. We will even throw in the lunch! Please RSVP so we can make sure you have a spot (mgates@fostergraham.com or ndale @fostergraham.com) and reserve your space for either the 22nd or the 23rd today. I look forward to meeting you and discussing your employment solutions.

Danny is a managing partner of Foster, Graham, Milstein & Calisher (FGMC). His practice focuses on personal injury. The law firm of FGMC, located in Cherry Creek, is a full service law firm focusing on: criminal defense, personal injury, real estate, litigation, liquor licensing, construction law, tax/estate planning, bankruptcy and zoning. This article does not create an attorney-client relationship and is for informational use only (what do you expect from an attorney!

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