Legalities and Strategies for Hiring: A Q&A mini-series with business attorney Kate Kilberg

With the national unemployment rate at 3.8%, business owners who are looking to grow their team need to be savvy to more than just the needs of their company.  

Even the language you use in job ads and interviews needs to be considered from a legal perspective, and you need to understand the rules, regulations, and liabilities involved. But the employment relationship goes far beyond the legalities, technicalities, and practical steps of the hiring process.

Prospective employees want to work for companies that value and recognize their contributions, that offer opportunities to grow, and foster a work environment of appreciation, support, and belonging.  

Hiring the right people for your business is more challenging than ever. So, I asked my friend Kate Kilberg, who is a practicing business attorney, to join forces with me to help business owners understand both the legal side of hiring and how to create a meaningful work experience for your team. In this Q&A mini-series, we’re answering questions and sharing the expert coaching advice and legal guidance you need to build your dream team and grow your business. 

Part III: Navigating the legal language of hiring, cultivating leadership, and how to create a culture of belonging

Kate Kilberg: One of the things I’ve found to be true in terms of having a business or being the business owner is that being a really good leader is not easy. So, Dana, I have a question about that for you.

If a business owner is struggling with how to create a company culture where employees feel like they belong to something bigger, how do you work with clients to develop those leadership skills?

Dana Corey: That’s a great question. Honestly, like so many things, it’s a process. You don’t wake up, learn a few lessons, and then all of a sudden you’re a great leader. Yes, leadership is about what you do and how you do it, but even more than that, great leadership is about who you choose to be. 

Growing your ability to lead means growing your ability to hold a bigger container, to create more space for your team to do what they do best. It takes practice. Great leadership often requires you to change the way you perceive your role as a leader, who you are with respect to your employees, or to the company, and, honestly, even the title that you’ve got. You have to be willing to do the personal work to shift how you’re looking at the whole picture in order to show up as a better leader. 

I have a client, Molly Earl, who’s just amazing. We’ve known each other for years, and when we first started working together, she had just been named the CEO of her company. It’s a family business, which she owns with her brother, but initially, he was the CEO. That changed when he said, “I have a different job to do here. Molly, you’ve got to be the CEO. This is your job.” 

That sounds like really brave and bold leadership, but for Molly, her internal response was, “I’m not a CEO. I was a teacher. How do I do this?” 

As we worked together over a period of nine months, I helped Molly see that there is no one “right way” to lead. You get to lead from your own strengths. You get to be you–and it’s really important that you show up as yourself.

You have to actually be comfortable with the fact that maybe you’re not Oprah. Maybe, like Molly, you’re an introvert and a nurturer, not a public face or an orator.  Now, about two years later, to hear her brother talk about her leadership actually made me cry. Because it’s so amazing, not just how he feels about her leadership, but how their employees feel about her, and what they will do for the company, because she’s an authentic and nurturing leader and that is how she leads them.

Another piece of this work that I do on a regular basis with my clients is help both the owner of the company and their team identify the company values. Everybody who’s been part of the team for a while is involved in this process, so that the employees are as much or even more part of the process than the business owner themselves. 

So, together we uncover the company values and then we define those values. We talk a lot about the roles that these values play within the business, what it means, how the work of the business comes out of these values, and how they’re an integral part of that work. 

Now, after our initial session, these values need to be brought to life in the day to day of the business. So, at their weekly company meetings, they pick one of the values that we identified and they talk about what it means. They talk about how that value showed up in their work over the last week. This simple practice creates space for people to share their ideas and really bring these values to life within the team and the company. That’s growth leadership.

Kate Kilberg: That’s a great example.

Dana Corey: On that note, I want to shift our focus for a moment here. In Part One of this Q&A mini-series, we talked about the difference between employees versus contractors and what business owners need to know before they make that hiring decision. I want to go back to the very beginning of the hiring process and the language that we use.  

What can you say, or ask–or not–in a job description or an interview?

Kate Kilberg: That’s a great question, Dana. In my mind, and in my world, there’s a little bit of a difference between a job description and a job ad. I want to talk about both because they serve different functions. 

From a legal perspective, a job description is really the way in which you are communicating performance expectations with your employee–why they’re there and what their role entails. And that has consequences in a number of different scenarios. 

I’m going to walk through the general things that you want to include in a job description, and then I’ll talk a bit more about job ads, which are a little different. 

The first thing I wanted to say is that there’s no law that requires that you have a job description. However, I would really, really strongly recommend it. That’s partly because, if legal issues arise, you’ve got documentation. As a mentor of mine once said, the top three rules in employment matters are document, document, and document. 

You want to document that you provided the employee with clear expectations and there was an agreement about what was supposed to happen if those expectations were or were not met. 

⇨ The first part of a job description is the job title, which may seem like it’s not all that meaningful, but there are a few things that business owners need to be mindful of. I’ve noticed that there’s a new trend of giving everyone a C Suite title. I’ve seen this with a few newer companies, there’s the Chief Everything Officer, and the Chief Happiness Officer, and I love the spirit and the heart behind it. Business owners just need to be aware that sometimes there are legal consequences to this approach. 

There are certain areas in which anyone who has a C-level title could be held personally liable for something that happens within the company. So, I’m not necessarily saying don’t do it, but just think about whether that’s something you really want to do and if it’s worth the potential risk of liability.

The Fair Labor Standards Act, or FLSA, also comes into play here. The FLSA sets the federal minimum wage, and here in Oregon there’s also a statute that sets the Oregon minimum wage. In those statutes, you generally need to make a distinction between an exempt employee and a non-exempt employee. 

Non-exempt employees are entitled to minimum wage, and then they’re entitled to generally one and a half times pay for working overtime over 40 hours a week. 

Exempt employees are generally not entitled to overtime, but they are entitled to be paid in any week in which they perform any work at all. Exempt employees are typically found in more white-collar salaried positions like management.

As with everything, there are benefits and drawbacks to both types of arrangements. But with respect to job titles, I want to clarify that just because you put “manager” in a job title, that does not necessarily make the person in that position an exempt employee. The exempt analysis goes deeper than whether you call somebody a manager or not. 

The second part of a job description generally details the essential functions of the role.

Again, this is a documentation issue. You want to make sure that you’ve really clarified what it is that you actually need from this person and why you are hiring them. 

My advice would be to really narrow that down and only include the essential job functions in the job descriptions.

That means you’re not including things like “answer the phone” if that isn’t an essential part of the role you’re hiring for. 

This is important because the job description is used, in legal terms, if you have an employee who might need accommodation because of a disability.  

You need to be able to analyze the role in terms of whether they can still perform the essential functions of the job, perhaps with reasonable accommodation. From a legal perspective, these situations are considered in terms of those essential job functions that you included in the initial job description and then determining if there are reasonable accommodations that you can make within the workplace that will allow the employee to perform those essential functions. 

Taking this essential approach to creating job descriptions also offers important insurance when it comes to discipline.

If an employee isn’t performing the essential functions of their job, it’s helpful for you to have that document that shows that they knew upfront that  whatever they aren’t doing violates a clear expectation of their role.  

After the essential functions, job descriptions typically include physical requirements, as well as an required skills, knowledge, or certifications. 

Relate these directly to the essential functions of the job, so that they’re consistent with the rest of your document. 

So that’s kind of the ideal legal approach to job descriptions, and they’re a little bit different than job ads. 

Now, a job ad can read like a job description, and some people use the terms interchangeably, and that’s fine. The primary difference is that a job description tends to be more of an internal document, while a job ad is an external advertisement to try to get people to apply for the job. 

One of the major concerns around job ads is really the issue of discrimination. When you’re posting a job ad, you don’t want to say anything that would limit, or could be perceived as limiting, a person’s ability to apply for the role based on age, race, religion, gender, national origin, all of those protected categories. 

The one exception to this is if there is a Bona Fide Occupational Qualification, or BFOQ, and those are really, really rare. It’s incredibly uncommon to show that one of those protected statuses is actually BFOQ.

The one example of a BFOQ that I use would be if a religious school is hiring, they can require that a teacher or an employee at that school is a member of that religion. That’s a Bona Fide Occupational Qualification. Now, you might not be able to require that a janitor at that school is a member of that religion, because that’s less necessary to executing their job.

One of the common mistakes that business owners make is not realizing that age is one of those protected classes in employment. So, when you’re writing your job ad, you don’t want to say something like, “we’re looking for someone young and enthusiastic.” What you want to say is, “we’re looking for someone who is really motivated.” That’s one place where people can inadvertently go astray. 

⇨ Going back to our conversation about At-Will employment in Part Two of our Q&A mini-series, you want to make sure that your job ad doesn’t say anything to change the At-Will status of the employment relationship if you’re not intentionally doing so. This one is really tricky. Even using statements like, “we want all of our employees to be with us long term,” can call into question your At-Will status. 

“We’re looking for somebody who wants to grow with us,” can also arguably make it look like you don’t have that At-Will employment status. You need to be really, really careful with the language that you use. I always say the best thing to do is to very clearly include, “this is an At-Will position,” in your job ad. Because then it’s less reasonable for anyone to interpret any of your statements in a contrary manner.

Dana Corey: That’s a great answer, thank you so much, Kate. Do you have any more questions for me?

Kate Kilberg: Yes, I do. We’ve talked about how a lot more people are working remotely these days. 

Do you have any tips for leaders about how to maintain the sense of communication and accountability that you need in a work environment?

Dana Corey: This equation is so different for different companies. It’s especially hard if people are working internationally, because time zones can make it really difficult to bring your team together. 

If people are working remotely, but they’re within two or three time zones of each other, everybody’s going to be at work together at some point, even if they’re on their own computers in their own homes. In this scenario, one of the things that can be really helpful is a daily huddle, where the team gets together for 15 minutes every day. In the huddle, have everyone share one word about how they’re feeling that day, or celebrate any wins they had the day before, what they’re working on, or their plan of action for the day. 

And then, before ending the huddle, the last question is, “is there anywhere that you specifically need support in the work that you’re going to do today?”

Having those conversations and consistently creating those opportunities to connect helps to keep everyone engaged, and on the same page, and ensures that your team has the support they need. It is so important to create that space for your team to connect when they don’t actually get to come together in real life.  

Another approach that can be used alongside the daily huddle, or on its own, is to schedule time during a Friday afternoon, before work is done, to have a meeting that focuses more on getting to know each other.

My client, Molly, who is so amazing at nurturing her team, does this every week. Her company does have a core team at their physical office here in Oregon, but they also have 10 remote employees who live all over the country. So they have weekly meetings where Molly asks a question that delves into what people think or feel, or prompts them to share something silly about what they did that week, or something personal about themselves, or their families.

Having that weekly “get to know each other” meeting helps to take some focus off the work and infuse some of the personal connection that people used to find around the office watercooler or over the cubicle wall. It creates an opportunity to get to know each other as people, not just as colleagues. 

If you can afford it, or if you have a business that can allow for it, I really encourage my clients to do an off-site retreat once a year. I hate Las Vegas, but flights to Vegas are the cheapest in the country because they’re subsidized by the casinos, so it’s easy and economical to get there. Take your people somewhere where everyone can hang out in the same space.

If a retreat isn’t a viable option, host an event – go bowling! This isn’t about making extravagant gestures, it’s about creating time and space for authentic connection.

Now, as we’re wrapping up our Q&A session, I want to shift gears for a minute. There are so many, many, many business owners out there who need a lawyer and don’t have one. I’m not pointing fingers, this can happen for all sorts of reasons, they think they don’t really need a business lawyer just yet, or they think that they can’t afford one. Regardless of the reason, my response has always been, you need a lawyer way before you think you need a lawyer. You need to be protected. 

So, how can people find you, Kate?

Kate Kilberg: So, I started out working for big law firms twenty years ago, but I have my own legal practice now. You can find my website at www.kilberglaw.com and my email address is Kate@kilberglaw.com

Before anyone reaches out, I will say that I tend to be really honest, almost to a fault. I will tell you, “you don’t need to pay me for that. You can do that on your own.” if that’s the case. 

I know Dana’s rolling her eyes at me, but I really genuinely want to feel like the money that I’m earning is because I’m providing value. So, you’re always welcome to call me, or shoot me an email, and if I’m not the right person, or if I think it’s something you can do on your own, and it’s not worth spending the money, then I’m going to tell you that.

I’m a business owner, myself, I understand budgets, I understand revenue, I understand all of that. So, I try to be really careful in making sure that people are using my services in a wise way. And I know that there are other lawyers out there that do that as well. 

One of the things I think is a great idea for business owners is to find a lawyer that you like, because that really makes a difference. I always suggest that people meet with their lawyer for at least an hour once a year, and tell them what’s going on, tell them what issues are coming up in the business, like an issue-spotting meeting. That way your lawyer knows who you are, what’s happening in your business, and what might be coming up that needs attention.

You might also want to look over your employee handbook with your lawyer every year, just to review the existing framework, check your language, and ensure everything is up-to-date.

 I think a lot of people believe that hiring a lawyer is going to cost them thousands of dollars no matter what. One of the things I offer is one hour consults, which are a few hundred dollars. During that hour, I’m happy to kind of answer all of those easy questions. That option creates a nice middle ground for business owners who otherwise are going it alone and just trying to guess their way through. 

Dana Corey: Awesome. Thank you so much, Kate. That was really fun and I really appreciate you joining me and taking the time to share your expertise. 

Kate Kilberg: Thanks so much for having me. Dana. Take care. 

Understanding the Legalities & Strategies of Hiring

For business owners who want to grow their business, hiring can be the most daunting part of the process. If you want to attract the best people to work for your company, business owners in today’s market need to be mindful of their language, clear about their expectations, and intentional in nurturing their team.

Remember:

⇨ Being a great leader means being willing to do the personal work of expanding your perspective and showing up with authenticity

⇨  Language matters. The details you include in a job description or a job ad can have legal implications that can change the status of your employment relationship and impact liability.

⇨  Creating time and space for your team to connect is absolutely essential to remote teams. Nurturing a culture of recognition, appreciation, and personal connection creates a sense of belonging and empowers your team to strive for greater success. 

⇨  If you have a business, you need a lawyer. You can learn more about Kate and her legal services at www.kilberglaw.com, or by emailing her at Kate@kilberglaw.com.

Did we miss something? Do you have a question about the strategic or legal side of hiring? Let us know by commenting on this post and we’ll get back to you with an answer ASAP.

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