Business RadioX ®

Corporate Internal Investigations

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Corporate Internal Investigations
Advisory Insights Podcast
Corporate Internal Investigations
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Corporate Internal Investigations

Corporate Internal Investigations (Advisory Insights, Episode 37)

On this episode of Advisory Insights, Stuart Oberman of Oberman Law Firm discusses the do’s and don’ts of corporate internal investigations. Stuart covers topics such as the importance of developing an effective internal investigation process, handling whistleblowers and their complaints, expectations for reporting and documentation for compliance initiatives, and ethical considerations, and much more.

Advisory Insights is presented by Oberman Law Firm and produced by the North Fulton studio of Business RadioX®. The series can be found on all the major podcast apps. You can find the complete show archive here.

TRANSCRIPT

Intro: [00:00:02] Broadcasting from the studios of Business RadioX, it’s time for Advisory Insights. Brought to you by Oberman Law Firm, serving clients nationwide with tailored service and exceptional results. Now, here’s your host.

Stuart Oberman: [00:00:20] And welcome everyone to Advisory Insights. Stuart Oberman here. And I want to talk a little bit about small, medium, large-sized businesses. The title of today’s podcast is Corporate Internal Investigations: Do’s and Don’ts.

Stuart Oberman: [00:00:37] At some point, no matter what size company you are, you are going to have to investigate something internally. It could be a big problem. It could be a small problem. But at some point, you’re going to have to investigate a certain course of conduct. Now, our clients range anywhere from small to global, so we’ve really had a wide, wide range of investigations that we do all the way from fraud, to Department of Justice matters, to felonies, white collar crime.

Stuart Oberman: [00:01:16] And I want to cover a couple of things because there’s rules regarding corporate compliance and oversight that you have to know. Again, it doesn’t matter whether you’re small, medium, large, but you have to be able to promote and maintain an ethical corporate culture no matter how small or big you are, because it is paramount and the complexities are so integral that, again, it’s the same scenario no matter what size you are. So, I don’t care how big you are, you need to develop or have some kind of structure for the development of an effective internal investigation process.

Stuart Oberman: [00:02:01] So, when you start this process and you have a compliance program, again, you got five employees or 500 or 5,000, it doesn’t matter. We’re talking basics here. Every business with employees should have a compliance program.

Stuart Oberman: [00:02:19] And what are the expectations of the reporting and documentation for compliance initiatives? All kind of Federal, you got OSHA, you got HIPAA for medical, State, Federal, we got all kinds of regulatory matters that you just have to know. What are the risk assessments? How do you develop the internal investigations? What do you involve in white collar prosecutions? What’s the evolving role of your board, if you have a board, if you’re that big? So, you’ve got all kinds of considerations.

Stuart Oberman: [00:02:53] And I want to take a look at the start of the internal investigations. Again, I don’t want to go down a rabbit hole with these because it really, really can, but I want to get some basics down on the wire, if you will.

Stuart Oberman: [00:03:04] So, first, you got to decide whether or not you’re going to conduct an internal investigation. What is done? What’s the extent? And how deep do you need to roll with that? When you start the investigation, first and foremost, you have to define a goal. What is the end result you want to achieve? How do you get there? How do you gather the evidence? How do you interview the employees? Are the employees under the corporate attorney-client privilege? Have you instructed them to get their own counsel? And then, who do you report to? What is the reporting requirements? Are the reporting requirements attorney-client privileged?

Stuart Oberman: [00:03:44] If you’re investigating someone or something on behalf of a corporation, who’s your client? You have to define that because that may determine whether or not your results are discoverable. Discoverable. And who do you disclose the investigation reports to? Is it a person or, again, a board? Or is it an outside auditor who’s hired you? Is it the business’ CPA?

Stuart Oberman: [00:04:18] Again, all areas you need to look at. You have to have a blueprint with this. You can’t just go in blind and start swinging the hammer in investigations because that will absolutely end in a disastrous result.

Stuart Oberman: [00:04:33] So, first and foremost, we’ve also got to take a look at the corporate compliance governing employment and privacy laws. Does the company have a code of ethics? If not, I would encourage you to draft a code of ethics. Is it a form? Is it a holistic approach? That’s an individual corporate matter. But you have to have a corporate code of conduct. I don’t care how big you are, you have to define.

Stuart Oberman: [00:05:01] And this goes back to my earlier podcast, and I speak so many times, do so many podcasts, Where is your employee manual? This all leads up to what the employee manual is. I want you to take a look at your code of conduct regarding discrimination, harassment, business gifts, restrictive covenants, non-competes. Goodness gracious, the whole world is going against non-competes. We got the FTC. We got the National Labor Relations Board. What is your conduct?

Stuart Oberman: [00:05:35] Do you have a drug free workplace policy? What happens if you have an employee that goes into a state that is marijuana or cannabis friendly, what do you do? How do you deal with it? How do you investigate that?

Stuart Oberman: [00:05:50] Whistleblower. So, you’re asking, “Stuart, what’s a whistleblower?” So, is there a person in your organization who reports to you or to the Federal Government, State Government problems, irregularities, or violations? And do you have a hotline for that? So, you got 20 employees and you have an employee who wants to report something to you. Obviously, if you’re the owner of the business, they’re going to be very, very hesitant about coming to you. My suggestion would be to have an anonymous hotline for company code of conduct violations.

Stuart Oberman: [00:06:33] Next question is data security. Where are you storing that sensitive data that if leaked, if hacked, if discovered can have a damaging, damaging effect on your business? So, again, privacy laws, data compliance, what platform, how secure is that?

Stuart Oberman: [00:06:54] So then, I want to take a look at some some really ethical considerations in any kind of investigation. Ethical considerations. So, you’ve got conflict management, you’ve got employees, and then you’ve got corporations. Who was your client? Is it the employees? What if your employees that you’re interviewing have some very, very negative things to say about the corporation, what do you do with the information? Who are you representing?

Stuart Oberman: [00:07:23] Is the information that you receive subject to attorney-client privilege? That, you’ve got to know right off the bat who your client is, because that will determine how you process information, how much is that protected. And then, how do you ethically manage your corporate clients or your outside client, how do you manage those? What’s the guidelines? So then, what are your ethical considerations in the internal investigation?

Stuart Oberman: [00:07:50] And these are all questions, and I’ve given you guys more questions than answers because these things I want you to consider. I want you to review managing multiple jurisdiction employment compliance initiatives. What if you have ten locations in different states? What are your handbooks? Are you a global company or local? Code of Conduct, hotline, HR Policies? Goodness gracious, I probably did a million podcasts regarding HR cross border matters.

Stuart Oberman: [00:08:27] Benefits, equity, and what are your incentive plans for reporting violations, if there are any HR issues? In a merger and acquisition and you discover things after the fact, how do you deal with that? How do you divest yourself of that information? And, again, I’ll go back to data privacy laws. Where is that information kept?

Stuart Oberman: [00:08:52] Folks, that’s a lot of information. Again, a lot of times on some podcasts, I’m giving you more information than I’m asking. But in this case, I’m asking much more information because I want you to understand the ramifications if you don’t go into these investigations with a clear blueprint of where you’re at, where you’re going, who your clients are, what’s the data, how is it going to be handled, how is it stored, what’s the end result.

Stuart Oberman: [00:09:21] Folks, that’s our podcast for today. Stuart Oberman here, Advisory Insights. Thank you so much for joining us. If you need to reach us, please feel free to give us a call, 770-886-2400, or email, stuart, S-T-U-A-R-T, @obermanlaw.com. Thanks everyone and have a fantastic day.

Outro: [00:09:43] Thank you for joining us on Advisory Insights. This show is brought to you by Oberman Law Firm, a business-centric law firm representing local, regional, and national clients in a wide range of practice areas, including health care, mergers and acquisitions, corporate transactions, and regulatory compliance.

About Advisory Insights Podcast

Presented by Oberman Law Firm, Advisory Insights Podcast covers legal, business, HR, and other topics of vital concern to healthcare practices and other business owners. This show series can be found here as well as on all the major podcast apps.

Stuart Oberman, Oberman Law Firm

Stuart Oberman
Stuart Oberman, Founder, Oberman Law Firm

Stuart Oberman is the founder and President of Oberman Law Firm. Mr. Oberman graduated from Urbana University and received his law degree from John Marshall Law School. Mr. Oberman has been practicing law for over 25 years, and before going into private practice, Mr. Oberman was in-house counsel for a Fortune 500 Company. Mr. Oberman is widely regarded as the go-to attorney in the area of Dental Law, which includes DSO formation, corporate business structures, mergers and acquisitions, regulatory compliance, advertising regulations, HIPAA, Compliance, and employment law regulations that affect dental practices.

In addition, Mr. Oberman’s expertise in the healthcare industry includes advising clients in the complex regulatory landscape as it relates to telehealth and telemedicine, including compliance with corporate structures, third-party reimbursement, contract negotiations, technology, healthcare fraud, and abuse law (Anti-Kickback Statute and the State Law), professional liability risk management, federal and state regulations.

As the long-term care industry evolves, Mr. Oberman has the knowledge and experience to guide clients in the long-term care sector with respect to corporate and regulatory matters, assisted living facilities, and continuing care retirement communities (CCRCs). In addition, Mr. Oberman’s practice also focuses on healthcare facility acquisitions and other changes of ownership, as well as related licensure and Medicare/Medicaid certification matters, CCRC registrations, long-term care/skilled nursing facility management, operating agreements, assisted living licensure matters, and health care joint ventures.

In addition to his expertise in the healthcare industry, Mr. Oberman has a nationwide practice that focuses on all facets of contractual disputes, including corporate governance, fiduciary duty, trade secrets, unfair competition, covenants not to compete, trademark and copyright infringement, fraud, and deceptive trade practices, and other business-related matters. Mr. Oberman also represents clients throughout the United States in a wide range of practice areas, including mergers & acquisitions, partnership agreements, commercial real estate, entity formation, employment law, commercial leasing, intellectual property, and HIPAA/OSHA compliance.

Mr. Oberman is a national lecturer and has published articles in the U.S. and Canada.

LinkedIn

Oberman Law Firm

Oberman Law Firm has a long history of civic service, noted national, regional, and local clients, and stands among the Southeast’s eminent and fast-growing full-service law firms. Oberman Law Firm’s areas of practice include Business Planning, Commercial & Technology Transactions, Corporate, Employment & Labor, Estate Planning, Health Care, Intellectual Property, Litigation, Privacy & Data Security, and Real Estate.

By meeting their client’s goals and becoming a trusted partner and advocate for our clients, their attorneys are recognized as legal go-getters who provide value-added service. Their attorneys understand that in a rapidly changing legal market, clients have new expectations, constantly evolving choices, and operate in an environment of heightened reputational and commercial risk.

Oberman Law Firm’s strength is its ability to solve complex legal problems by collaborating across borders and practice areas.

Connect with Oberman Law Firm:

Company website | LinkedIn | Twitter

What You Must Know When Forming an LLC, Partnership, or Corporation

by

What You Must Know When Forming an LLC, Partnership, or Corporation
Advisory Insights Podcast
What You Must Know When Forming an LLC, Partnership, or Corporation
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What You Must Know When Forming an LLC, Partnership, or Corporation

What You Must Know When Forming an LLC, Partnership, or Corporation (Advisory Insights Podcast, Episode 36)

On this episode of Advisory Insights, Stuart Oberman of Oberman Law Firm discussed some of the key considerations for businesses when forming an LLC, partnership, or corporation. He stressed the importance of having a well-designed agreement in place that covers key topics such as arbitration provisions, buy/sells, and valuation methods.

Advisory Insights is presented by Oberman Law Firm and produced by the North Fulton studio of Business RadioX®. The series can be found on all the major podcast apps. You can find the complete show archive here.

TRANSCRIPT

Intro: [00:00:01] Broadcasting from the Studios of Business RadioX, it’s time for Advisory Insights. Brought to you by Oberman Law Firm, serving clients nationwide with tailored service and exceptional results. Now, here’s your host.

Stuart Oberman: [00:00:20] Hello, everyone. Stuart Oberman. Welcome, welcome to Advisory Insights. All right. We’re going to have some great stuff. As we start going quickly, quickly, quickly into 2023, I want to make sure that everyone is structurally prepared internally for their corporations, partnerships, LLCs.

Stuart Oberman: [00:00:39] We do a substantial amount of entity formations, buy-ins, buyouts, partnerships, formations for global companies, local companies, regional companies. Last year, we did about 145 transitions, mergers, acquisitions, probably total about $450 million worth of revenue on those, total practice values, and everything, business values.

Stuart Oberman: [00:01:05] So, I want to run quickly through some items that we noticed time and time and time again on some problems. So, first and foremost, whenever you’re forming a corporation, you got to look at a couple areas. So, you have to know, and your advisors have to know, your CPAs have to know, your attorneys have to know what are the best practices. Each state is completely different as to what the requirements are. You have to know what your documents are. You have to know what the record keeping is. You have to understand what your corporate responsibility is document-wise. You have to understand what the LLC documents are. You have to understand whether or not you have to have a publication involved.

Stuart Oberman: [00:01:49] And, also, what are the valuations. When you form an entity, when you form a corporation, you form an LLC, what is what we call a capital contributions? What are you bringing to the table? Is it $1? Is it your services rendered? It has to be an accounting process for this because it has to go into the operating agreement. It has to go into the corporate documents. And I’m going to get into a list of corporate documents a little bit later in this particular podcast.

Stuart Oberman: [00:02:18] So, one area we have to look at is, of course, an entity selection. What is best for you? There are no right or wrong entities necessarily. It’s just what is your structure? So, of course, you’ve got your corporations, right? Now, people get confused. I want to be a Sub-S. I want to be a C-Corp. So, those are tax elections. They’re not “corporate structures.”

Stuart Oberman: [00:02:50] So, there’s only really one kind of corporation. Depending on your state, you could have a professional corporation, you can have a PLLC, professional liability corporation. So, you’ve got a lot of things but, basically, you’re looking at the corporation. Then, you have limited liability company. Again, depending on your state, you can have a PLLC, you can have variations of these.

Stuart Oberman: [00:03:16] So then, you look at what are your partnerships. That’s a whole different world. Partnerships. They’re like a marriage. They’re easy to get in. They are a disaster to get out. If you’re even contemplating a partnership, who’s going to own their respective shares? You got two owners, individually or is each owner going to have their own entity, LLC, if you will, and then you have a master – what we call – mothership LLC. Again, those are very, very specific things you’ve got to really take a look at.

Stuart Oberman: [00:03:53] Then, you’ve got joint ventures. So then, you’ve got partnerships on joint ventures. Then, you have joint ventures LLCs. You got operating agreements. You’ve got, again, buy-ins, buy outs. So, those are all extremely technical areas you really, really have to know.

Stuart Oberman: [00:04:12] So then, you’ve got to look at what entity is going to protect the owners or owner of the companies. What are the rights and obligations of the owners? Again, internal documents. Easy to get in, hard to get out. You’ve got to know how you go into a marriage and how you’re getting out, what are the breakups, what are the wind downs, how are you going to break up the the assets, if you will. So, again, determine the entity status.

Stuart Oberman: [00:04:39] So then, this is where your advisors come in. You’ve got to look at really the benefits and pitfalls of establishing each entity. You can’t just jump and say, I want to be this or I want to be that. You have to figure out the end game, taxes, liability, crossing jurisdictional matters. What may work in Texas is not going to work in Maine. What’s going to work in Maine is not going to work in Washington. So, again, look at those things.

Stuart Oberman: [00:05:08] Tax issues. So, you’ve got a couple areas to look at. One is the S-Corp. That is best place for small businesses. Your CPA will be very familiar with that. There are certain time limits that that has to be election-wise with the IRS once you are set up. Your C-Corps, you’ve got to be really careful on that, because if you go to sell your business and you’re a C-Corp you have some problems with some tax, some goodwill matters.

Stuart Oberman: [00:05:40] And the partnerships, is it going to be a mothership scenario where you’ve got owners filing their own LLCs? Is it going to be taxed, again as a partnership, how is each entity going to be taxed? Is this particular partner going to be a S-Corp? Again, very, very complex. So, you look at the formation. You look at your operation. And you look at the termination.

Stuart Oberman: [00:06:06] Pitfalls. Who’s going to get the tax ID number, state and federal? So, when your federal, someone in the organization has to file for a tax ID number. Whose Social Security number is that going to be filed with? Because if it’s under your tax, if it’s under your Social Security number, you are essentially going to be responsible for a lot of tax matters. What’s the tax efficiency? What’s the best tax structure? Is it a tax exempt? Certain areas are tax exempt, state, federal.

Stuart Oberman: [00:06:43] Again, you’ve got to look at your CPA for these things. You’ve got to look at your financial advisors. And they have to be familiar with business. Some CPAs are not familiar with business structures. It’s just the way it is. So, again, pick your advisors carefully.

Stuart Oberman: [00:06:56] A couple of documents – as we’re sort of near closing – we should really take a look at. So, corporation’s bylaws, minutes, LLCs and corporations, consents LLC and corporations, operating agreement primarily generally in your LLC formations, that will get you started on everything from how you run the business, tax consequences, how you wind it down, what the partnerships distributions are. That is your structure.

Stuart Oberman: [00:07:32] With any joint venture, you have to have or should have a joint venture agreement. Any business that has more than one owner or partnership should have, in my recommendation, a very strong buy-in. Is it going to have arbitration provisions? Is it going to be a buy/sells? Are you going to have sort of a baseball arbitration where if one person can’t agree on the valuation, then the other person hires another appraiser, then all of a sudden you’ve got the two appraisers that are going in and equally dividing the difference between the two appraisals and come up with a number? Again, you can’t assume all this. This has to be the structure that you have to look at.

Stuart Oberman: [00:08:18] Well, folks, I know that’s a quick podcast today, but these are so many things that you just have to look at. I could literally probably talk on each topic for probably 30, 40 minutes. But this is an overall, really, really basic scenario generality that we run into. Again, it’s not the complex issues. Sometimes it’s the simplest things that get our practice owners, our business owners, our small business guys in trouble.

Stuart Oberman: [00:08:49] So, anyway, folks, thanks for joining us on the podcast today, Forming Corporations, Partnerships, LLCs, What you must know. If you have any questions, please feel free to give us a call, 770-886-2400, Oberman Law firm. Or email me at stuart, S-T-U-A-R-T, @obermanlaw.com Thanks folks, and have a fantastic day.

Outro: [00:09:14] Thank you for joining us on Advisory Insights. This show is brought to you by Oberman Law Firm, a business-centric law firm representing local, regional, and national clients in a wide range of practice areas, including healthcare, mergers and acquisitions, corporate transactions, and regulatory compliance.

About Advisory Insights Podcast

Presented by Oberman Law Firm, Advisory Insights Podcast covers legal, business, HR, and other topics of vital concern to healthcare practices and other business owners. This show series can be found here as well as on all the major podcast apps.

Stuart Oberman, Oberman Law Firm

Oberman Law Firm

Stuart Oberman is the founder and President of Oberman Law Firm. Mr. Oberman graduated from Urbana University and received his law degree from John Marshall Law School. Mr. Oberman has been practicing law for over 25 years, and before going into private practice, Mr. Oberman was in-house counsel for a Fortune 500 Company. Mr. Oberman is widely regarded as the go-to attorney in the area of Dental Law, which includes DSO formation, corporate business structures, mergers and acquisitions, regulatory compliance, advertising regulations, HIPAA, Compliance, and employment law regulations that affect dental practices.

In addition, Mr. Oberman’s expertise in the healthcare industry includes advising clients in the complex regulatory landscape as it relates to telehealth and telemedicine, including compliance with corporate structures, third-party reimbursement, contract negotiations, technology, healthcare fraud, and abuse law (Anti-Kickback Statute and the State Law), professional liability risk management, federal and state regulations.

As the long-term care industry evolves, Mr. Oberman has the knowledge and experience to guide clients in the long-term care sector with respect to corporate and regulatory matters, assisted living facilities, and continuing care retirement communities (CCRCs). In addition, Mr. Oberman’s practice also focuses on healthcare facility acquisitions and other changes of ownership, as well as related licensure and Medicare/Medicaid certification matters, CCRC registrations, long-term care/skilled nursing facility management, operating agreements, assisted living licensure matters, and health care joint ventures.

In addition to his expertise in the healthcare industry, Mr. Oberman has a nationwide practice that focuses on all facets of contractual disputes, including corporate governance, fiduciary duty, trade secrets, unfair competition, covenants not to compete, trademark and copyright infringement, fraud, and deceptive trade practices, and other business-related matters. Mr. Oberman also represents clients throughout the United States in a wide range of practice areas, including mergers & acquisitions, partnership agreements, commercial real estate, entity formation, employment law, commercial leasing, intellectual property, and HIPAA/OSHA compliance.

Mr. Oberman is a national lecturer and has published articles in the U.S. and Canada.

LinkedIn

Oberman Law Firm

Oberman Law Firm has a long history of civic service, noted national, regional, and local clients, and stands among the Southeast’s eminent and fast-growing full-service law firms. Oberman Law Firm’s areas of practice include Business Planning, Commercial & Technology Transactions, Corporate, Employment & Labor, Estate Planning, Health Care, Intellectual Property, Litigation, Privacy & Data Security, and Real Estate.

By meeting their client’s goals and becoming a trusted partner and advocate for our clients, their attorneys are recognized as legal go-getters who provide value-added service. Their attorneys understand that in a rapidly changing legal market, clients have new expectations, constantly evolving choices, and operate in an environment of heightened reputational and commercial risk.

Oberman Law Firm’s strength is its ability to solve complex legal problems by collaborating across borders and practice areas.

Connect with Oberman Law Firm:

Company website | LinkedIn | Twitter

Employer Personal Appearance Policies Should Be Reviewed

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Employer Personal Appearance Policies Should Be Reviewed
Advisory Insights Podcast
Employer Personal Appearance Policies Should Be Reviewed
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Employer Personal Appearance Policies Should Be Reviewed

Employer Personal Appearance Policies Should Be Reviewed (Advisory Insights Podcast, Episode 35)

On this episode of Advisory Insights, Stuart Oberman of Oberman Law Firm urges employers to review their employee manuals for potentially discriminatory personal appearance policies. He cites the recent CROWN Act as an example of legislation that prohibits discrimination based on hairstyle or hair texture.

Advisory Insights is presented by Oberman Law Firm and produced by the North Fulton studio of Business RadioX®. The series can be found on all the major podcast apps. You can find the complete show archive here.

TRANSCRIPT

Intro: [00:00:01] Broadcasting from the Studios of Business RadioX, it’s time for Advisory Insights. Brought to you by Oberman Law Firm, serving clients nationwide with tailored service and exceptional results. Now, here’s your host.

Stuart Oberman: [00:00:20] And welcome everyone to Advisory Insights. This is Stuart Oberman. And here we go, folks, a little H.R., H.R., H.R. So, we do a substantial amount of employment law in our firm, Oberman Law Firm, and we review on a local, national, regional basis employee manuals.

Stuart Oberman: [00:00:44] So, I don’t ever remember reading an employee manual that did not have some kind of policy in place regarding personal appearance. Now, I want you to stop right there. Before you do anything else today, I want you to take out that policy. I want you to review it. And I want you to take a look at, one, is it discriminatory? Two, if this ever got out in public and it’s on the front page of The New York Times, or three, if this hits social media, would you be embarrassed by your policy? Or does it have a specific job related function?

Stuart Oberman: [00:01:31] So, the reason why I say that is because incidences are constantly hitting our desk, the news regarding potentially discriminatory and really utterly ridiculous policies and procedures that have nothing to do with work, quality of work, but they all relate to personal appearance – personal appearance.

Stuart Oberman: [00:02:01] Now, life is what it is, and everyone has their own personal appearance. Some are not as fortunate as others. Some come from different backgrounds, race, color, creed, sex, origin. Nothing is the same when we deal with appearance. But I want you to look to make sure these policies and procedures are not discriminatory.

Stuart Oberman: [00:02:26] And I want to take one example. So, a published report came out not too long ago regarding a particular company that, essentially, prohibited the hiring of applicants that have missing, broken, or badly discovered teeth, that, in all likelihood, is unrelated to a disability. Now, my question is, why would my employers have that in their employee manual? What could possibly be the reason for that?

Stuart Oberman: [00:03:11] Now, again, things happen, life happens, and people are in bad accidents, and people go through rough times in life. I want you to take a look at whether or not your policies and procedures take those circumstances into account. If a person is in an accident, how do you enforce this? If a person is a great candidate, but for some reason they don’t have that million dollar smile, and they don’t have that Hollywood look, what is your policy on that? Is it written? And first of all, why do you have a policy on that? Do you realize how much trouble that can get an employer in if they have that?

Stuart Oberman: [00:03:56] I don’t want to necessarily spend a whole lot of time on this because, again, we look at so many things regarding this particular issue, but this comes to the forefront of are you reviewing your policies and procedures? One. Two, do you have an appearance policy in your manual? Now, it’s different if you have a policy that says if you have a tattoo covered up, I get that. Is that fine? Absolutely. That’s fine.

Stuart Oberman: [00:04:27] But, you know, you’ve got to take a look at personal appearance in relation to medical, cultural, and religious reasons. Let me go through that. When you review your policy and procedures as far as appearance goes, and personal conduct and appearance, are you accommodating those persons based upon medical, cultural, or religious reasons. And then, we all know what happens to legislation that occurs.

Stuart Oberman: [00:05:05] So, in a recent legislation, the CROWN Act, which was essentially a congressional bill, prohibited discrimination based upon a person’s hair texture or hairstyle, and that style or culture is commonly associated with a particular race or national origin. Now, that failed to pass in 2022. Now, the fact that that even became a bill in Congress is an issue. But what’s happened is, states have taken their own version of that and enacted that.

Stuart Oberman: [00:05:55] So, if you have that particular legislation in your state, you have to look at your policies and procedures and make sure it does not have discrimination based upon medical, cultural or religious reasons. Because if it does, you’re going to have a world of problems going down the road. And, again, do you really want that manual provision to hit social media? Because if it does, it doesn’t come off social media.

Stuart Oberman: [00:06:30] Folks, again, I could spend all day on that topic. But top of mind, again, I want our employers to look at what’s going on in their employee manuals and their H.R. and compliance.

Stuart Oberman: [00:06:41] Folks, Advisory Insights. Thanks for joining us. Stuart Oberman here as your host. If you have any questions, please feel free to give us a call, 770-886-2400 or stuart, S-T-U-A-R-T, @obermanlaw.com. Folks, thanks for joining us. Have a fantastic day.

Outro: [00:07:01] Thank you for joining us on Advisory Insights. This show is brought to you by Oberman Law Firm, a business-centric law firm representing local, regional, and national clients in a wide range of practice areas, including health care, mergers and acquisitions, corporate transactions, and regulatory compliance.

About Advisory Insights Podcast

Presented by Oberman Law Firm, Advisory Insights Podcast covers legal, business, HR, and other topics of vital concern to healthcare practices and other business owners. This show series can be found here as well as on all the major podcast apps.

Stuart Oberman, Oberman Law Firm

Oberman Law Firm

Stuart Oberman is the founder and President of Oberman Law Firm. Mr. Oberman graduated from Urbana University and received his law degree from John Marshall Law School. Mr. Oberman has been practicing law for over 25 years, and before going into private practice, Mr. Oberman was in-house counsel for a Fortune 500 Company. Mr. Oberman is widely regarded as the go-to attorney in the area of Dental Law, which includes DSO formation, corporate business structures, mergers and acquisitions, regulatory compliance, advertising regulations, HIPAA, Compliance, and employment law regulations that affect dental practices.

In addition, Mr. Oberman’s expertise in the healthcare industry includes advising clients in the complex regulatory landscape as it relates to telehealth and telemedicine, including compliance of corporate structures, third-party reimbursement, contract negotiations, technology, health care fraud, and abuse law (Anti-Kickback Statute and the State Law), professional liability risk management, federal and state regulations.

As the long-term care industry evolves, Mr. Oberman has the knowledge and experience to guide clients in the long-term care sector with respect to corporate and regulatory matters, assisted living facilities, continuing care retirement communities (CCRCs). In addition, Mr. Oberman’s practice also focuses on health care facility acquisitions and other changes of ownership, as well as related licensure and Medicare/Medicaid certification matters, CCRC registrations, long-term care/skilled nursing facility management, operating agreements, assisted living licensure matters, and health care joint ventures.

In addition to his expertise in the health care industry, Mr. Oberman has a nationwide practice that focuses on all facets of contractual disputes, including corporate governance, fiduciary duty, trade secrets, unfair competition, covenants not to compete, trademark and copyright infringement, fraud, and deceptive trade practices, and other business-related matters. Mr. Oberman also represents clients throughout the United States in a wide range of practice areas, including mergers & acquisitions, partnership agreements, commercial real estate, entity formation, employment law, commercial leasing, intellectual property, and HIPAA/OSHA compliance.

Mr. Oberman is a national lecturer and has published articles in the U.S. and Canada.

LinkedIn

Oberman Law Firm

Oberman Law Firm has a long history of civic service, noted national, regional, and local clients, and stands among the Southeast’s eminent and fast-growing full-service law firms. Oberman Law Firm’s areas of practice include Business Planning, Commercial & Technology Transactions, Corporate, Employment & Labor, Estate Planning, Health Care, Intellectual Property, Litigation, Privacy & Data Security, and Real Estate.

By meeting their client’s goals and becoming a trusted partner and advocate for our clients, their attorneys are recognized as legal go-getters who provide value-added service. Their attorneys understand that in a rapidly changing legal market, clients have new expectations, constantly evolving choices, and operate in an environment of heightened reputational and commercial risk.

Oberman Law Firm’s strength is its ability to solve complex legal problems by collaborating across borders and practice areas.

Connect with Oberman Law Firm:

Company website | LinkedIn | Twitter

EEOC Guidance on Hearing Impaired Applicants and Employees

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EEOC Guidance on Hearing Impaired Applicants and Employees
Advisory Insights Podcast
EEOC Guidance on Hearing Impaired Applicants and Employees
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EEOC Guidance on Hearing Impaired Applicants and Employees

EEOC Guidance on Hearing Impaired Applicants and Employees (Advisory Insights Podcast, Episode 34)

On this episode of Advisory Insights, Stuart Oberman of Oberman Law Firm discussed the EEOC’s guidance on how employers must deal with hearing impaired job candidates and employees. The EEOC is looking at modifications which should be made during the job application and interview process, as well as providing reasonable accommodations once they are hired. Safety concerns must also be considered when making decisions about accommodations.

Advisory Insights is presented by Oberman Law Firm and produced by the North Fulton studio of Business RadioX®. The series can be found on all the major podcast apps. You can find the complete show archive here.

TRANSCRIPT

Intro: [00:00:01] Broadcasting from the Studios of Business RadioX, it’s time for Advisory Insights. Brought to you by Oberman Law Firm, serving clients nationwide with tailored service and exceptional results. Now, here’s your host.

Stuart Oberman: [00:00:20] And welcome everyone to Advisory Insights Podcast. Stuart Oberman here, your host. All right. We’re going to be off and running with some more federal regulation. You’ve got to love these, guys. So, a little known and little talked about guidance here, in January of 2023, the EEOC issued extensive guidance as to what is considered and what employers must do regarding hearing impaired workers and employees.

Stuart Oberman: [00:00:58] So, the EEOC in their published guidance updated the Americans with Disabilities Act, which is quite extensive, which contains information about how the law applies to job applicants and employees who may be hearing impaired, such as deaf, hard of hearing, or have other hearing conditions. Now, this is extremely broad because this particular guidance – which is quite extensive, I might add. I’ve had a chance to review this – is regarding applicants and employees.

Stuart Oberman: [00:01:36] And before we jump into what this is, I want to give an up to date scenario. So, in good faith, you should never put on your application any kind of disability issues, do you have this disability, do you have that disability, are you hearing impaired, those kind of things. That’s an absolute no, no.

Stuart Oberman: [00:02:00] But what do you do if you have an applicant that comes in, extremely qualified on paper, you love this applicant. And then, all of a sudden they’re meeting with you and H.R. people, whatever it is, and you discover that they’ve got a hearing impairment, either they’re deaf, using sign language, or they’re extremely hard of hearing. What do you do?

Stuart Oberman: [00:02:24] There’s a million scenarios that will pop through your mind during that interview. Do you cancel the interview? Do you have that interview only for five minutes knowing you’re not going to hire that candidate for whatever reason? Or do you reschedule that interview and give a good faith interview with an interpreter, if needed, or some kind of software that will assist that applicant with the interview. Or what if you discover you have an employee that’s hearing impaired? What accommodations do you make for that particular employee?

Stuart Oberman: [00:03:08] Look, life happens. You know, things happen. People become blind. People become deaf. They have hard of hearing. I mean, we’re talking about disabilities here. And what do you do? Do you have a mechanism in place for that? Do you have a policy in place? How do you deal with that? These are critical questions.

Stuart Oberman: [00:03:23] So, in the EEOC’s guidance, they answer questions regarding pre and post job offer inquiries, technologies that may enable free or low costs or reasonable accommodations. You know, and you can’t put a dollar amount on this. You can’t say, “Well, I want the cheapest software I can find to accommodate that employee.” You can’t do that. What are the safety concerns regarding this employee? And what are new and potentially updated scenarios? Again, I just gave you some scenarios. But these are much more broader scenarios of potential discrimination that address, again, in this guidance, technologies such as video conferencing software.

Stuart Oberman: [00:04:15] So, here’s a great example. In the world of video conferencing – I don’t want to mention any bigger names or whatever it is. We all know who they are – we all know that remote changed the world and you have video conferencing technology. Are you adapting that technology to employees that have certain potential disabilities or impairments? How are you addressing that on a job interview, where you don’t want that candidate to come in for whatever reason? Let’s say, you want to do a 5 minute, 10 minute, 15 minute interview over a network video conferencing system, how do you handle that? When you get on an interview and you discover that the applicant has a hearing impairment or disability, how do you handle that?

Stuart Oberman: [00:05:03] I think you’ve got to have policies in place. I think you’ve got to have hiring policies in place for this. I think you have to have hiring policies in place to figure out what you need to do to make sure you’re not in violation of EEOC and the ADA for, not only the applicants, but your employees. And I think that your H.R., whether it’s small or large departments, have got to be at the forefront of this, and it’s top down driven. It’s top down driven.

Stuart Oberman: [00:05:33] So, that is a brief, brief podcast, folks, today regarding complex EEOC guidance regarding employees and candidates and applicants that have hearing impairments, disabilities, whatever it may be. Again, folks, it’s a wide topic. I want to have it top of mind. I want to make sure that our H.R. employers are looking at this.

Stuart Oberman: [00:06:00] So, folks, thanks for joining us today, Advisory Insights. Much more legislation to come, I’m sure, regarding the federal issues down the road on this topic. If you have any questions, give us a call at 770-886-2400 or stuart@obermanlaw.com. This is Stuart Oberman, your host, and thanks for joining us and have a fantastic day.

Outro: [00:06:26] Thank you for joining us on Advisory Insights. This show is brought to you by Oberman Law Firm, a business-centric law firm representing local, regional, and national clients in a wide range of practice areas, including health care, mergers and acquisitions, corporate transactions, and regulatory compliance.

About Advisory Insights Podcast

Presented by Oberman Law Firm, Advisory Insights Podcast covers legal, business, HR, and other topics of vital concern to healthcare practices and other business owners. This show series can be found here as well as on all the major podcast apps.

Stuart Oberman, Oberman Law Firm

Oberman Law Firm

Stuart Oberman is the founder and President of Oberman Law Firm. Mr. Oberman graduated from Urbana University and received his law degree from John Marshall Law School. Mr. Oberman has been practicing law for over 25 years, and before going into private practice, Mr. Oberman was in-house counsel for a Fortune 500 Company. Mr. Oberman is widely regarded as the go-to attorney in the area of Dental Law, which includes DSO formation, corporate business structures, mergers and acquisitions, regulatory compliance, advertising regulations, HIPAA, Compliance, and employment law regulations that affect dental practices.

In addition, Mr. Oberman’s expertise in the healthcare industry includes advising clients in the complex regulatory landscape as it relates to telehealth and telemedicine, including compliance of corporate structures, third-party reimbursement, contract negotiations, technology, health care fraud, and abuse law (Anti-Kickback Statute and the State Law), professional liability risk management, federal and state regulations.

As the long-term care industry evolves, Mr. Oberman has the knowledge and experience to guide clients in the long-term care sector with respect to corporate and regulatory matters, assisted living facilities, continuing care retirement communities (CCRCs). In addition, Mr. Oberman’s practice also focuses on health care facility acquisitions and other changes of ownership, as well as related licensure and Medicare/Medicaid certification matters, CCRC registrations, long-term care/skilled nursing facility management, operating agreements, assisted living licensure matters, and health care joint ventures.

In addition to his expertise in the health care industry, Mr. Oberman has a nationwide practice that focuses on all facets of contractual disputes, including corporate governance, fiduciary duty, trade secrets, unfair competition, covenants not to compete, trademark and copyright infringement, fraud, and deceptive trade practices, and other business-related matters. Mr. Oberman also represents clients throughout the United States in a wide range of practice areas, including mergers & acquisitions, partnership agreements, commercial real estate, entity formation, employment law, commercial leasing, intellectual property, and HIPAA/OSHA compliance.

Mr. Oberman is a national lecturer and has published articles in the U.S. and Canada.

LinkedIn

Oberman Law Firm

Oberman Law Firm has a long history of civic service, noted national, regional, and local clients, and stands among the Southeast’s eminent and fast-growing full-service law firms. Oberman Law Firm’s areas of practice include Business Planning, Commercial & Technology Transactions, Corporate, Employment & Labor, Estate Planning, Health Care, Intellectual Property, Litigation, Privacy & Data Security, and Real Estate.

By meeting their client’s goals and becoming a trusted partner and advocate for our clients, their attorneys are recognized as legal go-getters who provide value-added service. Their attorneys understand that in a rapidly changing legal market, clients have new expectations, constantly evolving choices, and operate in an environment of heightened reputational and commercial risk.

Oberman Law Firm’s strength is its ability to solve complex legal problems by collaborating across borders and practice areas.

Connect with Oberman Law Firm:

Company website | LinkedIn | Twitter

New Federal Protections for Pregnant and Nursing Workers

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New Federal Protections for Pregnant and Nursing Workers
Advisory Insights Podcast
New Federal Protections for Pregnant and Nursing Workers
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New Federal Protections for Pregnant and Nursing Workers

New Federal Protections for Pregnant and Nursing Workers (Advisory Insights Podcast, Episode 33)

On this episode of Advisory Insights, Stuart Oberman of Oberman Law Firm discussed the Pregnant Workers Fairness Act (PWFA) and the PUMP Act, two new pieces of legislation that aim to protect pregnant and nursing workers in the United States. The PWFA requires employers to provide reasonable accommodations to pregnant workers, while the PUMP Act amends the Fair Labor Standards Act to provide protections for nursing mothers during employment.

Advisory Insights is presented by Oberman Law Firm and produced by the North Fulton studio of Business RadioX®. The series can be found on all the major podcast apps. You can find the complete show archive here.

TRANSCRIPT

Intro: [00:00:01] Broadcasting from the Studios of Business RadioX, it’s time for Advisory Insights. Brought to you by Oberman Law Firm, serving clients nationwide with tailored service and exceptional results. Now, here’s your host.

Stuart Oberman: [00:00:20] Hello everyone. Stuart Oberman here, Advisory Insights Podcast. Welcome. Welcome. All right. We’re going to touch base today on some new federal legislation that is geared to protect pregnant workers and nursing workers on the job site.

Stuart Oberman: [00:00:38] So, let’s just briefly take this down a little bit. So, recently, as part of the Federal Omnibus Spending Bill, President Biden recently signed into legislation – I think some great legislation – the Pregnant Workers Fairness Act, which acronym is PWFA, and Providing Urgent Maternal Protections for Nursing Mothers Act, PUMP Act. It’s easier to say the PUMP Act, folks. Expanding federal legislation for the protection of pregnant and nursing workers.

Stuart Oberman: [00:01:19] So, let’s take a look at the PWFA first. So, what does this do? This creates an obligation for employers to grant reasonable accommodations to pregnant workers. This will go into effect in June 2023. So, you got a little bit of time yet. So, this affects 15 or more employers that will be required to provide reasonable accommodations.

Stuart Oberman: [00:01:45] Now, I will tell you this, Federal Law is not the most clear on reasonable accommodations for qualified employees and job applicants with temporary physical or mental limitations due to pregnancy and childbirth related conditions. There’s a lot to that act. I just want to bring that act to everyone’s attention.

Stuart Oberman: [00:02:12] So, for the employees and the applicants that are qualified, without a reasonable accommodation can perform the functions of the current position. So, you got to take a look at what’s reasonable, what’s accommodation, what’s needed. So, with the PWFA, like the Americans with Disabilities Act, it obligates the employers to provide reasonable accommodations. Unless – this is key – unless doing so would impose an undue hardship. Now, that is going to be a business by business, case by case basis. The Federal Law provides a little bit of guidance as undue hardship. But here’s the key, is the PWFA incorporates the ADA, Americans with Disabilities Act, concept on this interaction process.

Stuart Oberman: [00:03:20] So, I think you need to be aware of that if you have 15 or more employees. I think you have to be aware of what the reasonable accommodations are. I think you have to be aware of when it takes effect and what your limitations are.

Stuart Oberman: [00:03:33] Now, I want to jump into Protection for Nursing Moms during employment. So, the PUMP Act essentially amends the Fair Labor Standards Act. What’s right then and there is very broad. So, the acronym FLSA. Again, this is such a broad topic, but I want to bring this to the forefront of top of mind issues. So, it requires employers to provide a reasonable break time – what’s reasonable is an individual basis, I will tell you that – for employees so that they can go ahead and provide breastmilk each time the employee has a need to express such milk during their first year of childbirth.

Stuart Oberman: [00:04:28] So, the employer must provide a place, other than a bathroom, that is shielded from view and free from intrusion of other employees. So, if you’re a small office and you are jammed to the hilt with space, you have no rooms. You’ve got to find a room, folks. If you’ve got an employee that needs to take this kind of action, you have to find a place.

Stuart Oberman: [00:05:08] So, again, this is another key thing, is that the PUMP Act extends to all employees, whether it is exempt and non-exempt. All employees. It doesn’t matter full, part-time. All employees.

Stuart Oberman: [00:05:26] So, I didn’t want to spend too much time on this because, again, this is a whole project in and of itself. But I wanted to make all of our employers aware and our employees aware who are listening regarding the Pregnant Workers Fairness Act and the Protection for Nursing Mothers, the PUMP Act, and how this relates to the Americans with Disabilities Act, how this relates to the Fair Labor Standards Act, and what the accommodations are for expecting mothers and for mothers who are nursing on the job site.

Stuart Oberman: [00:06:00] Folks, that’s all I’m going to provide commentary on this today. Again, it could be a wide range topic, but I just want to bring it top of mind. Folks, thanks for listening to Advisory Insights, Stuart Oberman. If you have any questions, please feel free to give us a call at 770-886-2400 or email, stuart@obermanlaw.com. Folks, thanks for joining us. Have a fantastic day.

Outro: [00:06:26] Thank you for joining us on Advisory Insights. This show is brought to you by Oberman Law Firm, a business-centric law firm representing local, regional, and national clients in a wide range of practice areas, including health care, mergers and acquisitions, corporate transactions, and regulatory compliance.

About Advisory Insights Podcast

Presented by Oberman Law Firm, Advisory Insights Podcast covers legal, business, HR, and other topics of vital concern to healthcare practices and other business owners. This show series can be found here as well as on all the major podcast apps.

Stuart Oberman, Oberman Law Firm

Oberman Law Firm

Stuart Oberman is the founder and President of Oberman Law Firm. Mr. Oberman graduated from Urbana University and received his law degree from John Marshall Law School. Mr. Oberman has been practicing law for over 25 years, and before going into private practice, Mr. Oberman was in-house counsel for a Fortune 500 Company. Mr. Oberman is widely regarded as the go-to attorney in the area of Dental Law, which includes DSO formation, corporate business structures, mergers and acquisitions, regulatory compliance, advertising regulations, HIPAA, Compliance, and employment law regulations that affect dental practices.

In addition, Mr. Oberman’s expertise in the healthcare industry includes advising clients in the complex regulatory landscape as it relates to telehealth and telemedicine, including compliance of corporate structures, third-party reimbursement, contract negotiations, technology, health care fraud, and abuse law (Anti-Kickback Statute and the State Law), professional liability risk management, federal and state regulations.

As the long-term care industry evolves, Mr. Oberman has the knowledge and experience to guide clients in the long-term care sector with respect to corporate and regulatory matters, assisted living facilities, continuing care retirement communities (CCRCs). In addition, Mr. Oberman’s practice also focuses on health care facility acquisitions and other changes of ownership, as well as related licensure and Medicare/Medicaid certification matters, CCRC registrations, long-term care/skilled nursing facility management, operating agreements, assisted living licensure matters, and health care joint ventures.

In addition to his expertise in the health care industry, Mr. Oberman has a nationwide practice that focuses on all facets of contractual disputes, including corporate governance, fiduciary duty, trade secrets, unfair competition, covenants not to compete, trademark and copyright infringement, fraud, and deceptive trade practices, and other business-related matters. Mr. Oberman also represents clients throughout the United States in a wide range of practice areas, including mergers & acquisitions, partnership agreements, commercial real estate, entity formation, employment law, commercial leasing, intellectual property, and HIPAA/OSHA compliance.

Mr. Oberman is a national lecturer and has published articles in the U.S. and Canada.

LinkedIn

Oberman Law Firm

Oberman Law Firm has a long history of civic service, noted national, regional, and local clients, and stands among the Southeast’s eminent and fast-growing full-service law firms. Oberman Law Firm’s areas of practice include Business Planning, Commercial & Technology Transactions, Corporate, Employment & Labor, Estate Planning, Health Care, Intellectual Property, Litigation, Privacy & Data Security, and Real Estate.

By meeting their client’s goals and becoming a trusted partner and advocate for our clients, their attorneys are recognized as legal go-getters who provide value-added service. Their attorneys understand that in a rapidly changing legal market, clients have new expectations, constantly evolving choices, and operate in an environment of heightened reputational and commercial risk.

Oberman Law Firm’s strength is its ability to solve complex legal problems by collaborating across borders and practice areas.

Connect with Oberman Law Firm:

Company website | LinkedIn | Twitter

Employer-Related Compliance Trends in 2023

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Employer-Related Compliance Trends in 2023
Advisory Insights Podcast
Employer-Related Compliance Trends in 2023
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Employer-Related Compliance Trends in 2023

Employer-Related Compliance Trends in 2023 (Advisory Insights Podcast, Episode 32)

On this episode of Advisory Insights, Stuart Oberman of Oberman Law Firm discussed employer-related compliance trends in 2023. Stuart talked about pay transparency laws requiring employers to include salary range information in job postings, employee privacy laws governing how data is used in employment relationships, and more.

Advisory Insights is presented by Oberman Law Firm and produced by the North Fulton studio of Business RadioX®. The series can be found on all the major podcast apps. You can find the complete show archive here.

TRANSCRIPT

Intro: [00:00:01] Broadcasting from the Studios of Business RadioX, it’s time for Advisory Insights. Brought to you by Oberman Law Firm, serving clients nationwide with tailored service and exceptional results. Now, here’s your host.

Stuart Oberman: [00:00:19] And welcome everyone to Advisory Insights. Stuart Oberman here, your host. All right. Folks, we’re going to talk about employer related compliance trends in 2023. Yes, yes, yes, 2023, off and running. There is a lot of things going on in 2023 that our employers must, must know.

Stuart Oberman: [00:00:42] And there’s not necessarily any order of priority here, but there is a great, great trends regarding pay transparency laws that are going to be even more expansive in the future. So, the laws generally require – this is overly broad here – employers to include salary range information in job postings. Now, this is cropped up in California, of course, Washington, and New York. But I will tell you, there’s a lot of other legislation that is pending or being discussed in multiple states.

Stuart Oberman: [00:01:23] So, I think what has to happen is if you’re an employer and you’ve got employees in those states and you’re posting jobs in those states, you’ve got to understand what the ramifications are of the pay transparency laws. I would suggest that you have a broad policy on this because it is not really a matter of if it comes to your state, it’s when. So, obviously, California, Washington, and New York are more of the liberal states. Again, I’m not getting into politics, but I see a trend here that’s already from west to east. And, again, it’s going to go north and it’s going south, so it’s just a matter of time.

Stuart Oberman: [00:02:05] A next big topic, which, of course, originates in some more of these states, is employee privacy. What we’re seeing is that California is really at the forefront of this. But Illinois even became first on this issue. So, recently, the California Privacy Act – excuse me – California Privacy Rights Act has really brought, in my opinion, employee privacy to the forefront in the U.S. So, the law came in effect on January 1st.

Stuart Oberman: [00:02:43] Now, the interesting part, you’ve got to go back in history a little bit – and I don’t want to bore you guys – this particular law actually follows the Illinois Biometric Information Privacy Act, which was enacted in 2008 in Illinois. Now, you’ve got to understand where all this is coming from.

Stuart Oberman: [00:03:07] So, under the California law – again, here we go. We’re in California, Washington. Now, we’re hitting Midwest. We got New York City going here. Again, this is going to be propping up in multiple states, in my opinion – the California law mandates – not says may or not says, you know, we really want it to. It mandates. It governs – how the aspect of an employment relationship on how data is used in this context.

Stuart Oberman: [00:03:43] Now, what does that mean? So, it actually outlines what employers in artificial intelligence can and cannot utilize that information on, privacy, background checks, those kind of things. So, I think you need to really have a plan as a whole. It doesn’t matter whether you’re in Illinois, California, Washington, I don’t really care. You’ve got to figure out what your policy is and procedures on how to handle this data and whether or not your policies and procedures fit within those four or five states that, you know, is very broad.

Stuart Oberman: [00:04:23] And especially if you have employees in those multiple states and you’re a multinational employer, if your main office is in Charlotte, how do you deal with an employee and you run background checks for employees in Washington or New York? How do you deal with that? You’ve got to have policy in place with that.

Stuart Oberman: [00:04:42] The next one really is a very, very aggressive legislative change, and we’re seeing more and more of this. And I think it’s just a matter of time before the states have a version of this, which was, employee leave. I think we’re going to see, not necessarily on a federal level, but we’re going to see employers, we’re going to continue to see, I think, some broad movement on paid leave on a state and local level.

Stuart Oberman: [00:05:15] So, again, I want to go back to Illinois because they seem to be the most recent here on what we’re looking at. So, they passed the Paid Leave Act For All Employers – all workers – excuse me – the official name, Paid Leave For All Workers Act on January 10th. Now, once the law takes effect – and there’s a question whether that takes effect. From all indication, it’s going to take effect next year – employers – get this – must annually provide covering employees up to 40 hours of paid leave, which they can use for any purpose.

Stuart Oberman: [00:05:55] Folks, you’ve got to understand the ramifications of that, again, if you’re a multinational employer. Now, what we’re going to see is we’re going to see, I believe, different versions of this trickle down in certain water down states where it may not be as aggressive. Or in some areas, depending on the legislation, you’re going to see more aggressive leave. So, I think you need to start looking now what your policies are and procedures.

Stuart Oberman: [00:06:25] We have had some cases that our employers have actually acquired companies. And deep in their particular H.R. matters, they did not realize that their companies that they acquired had no limitation on leave. Folks, do you understand that? You just purchased a $50 million business, 5 million, 10 million, I don’t really care. And all of a sudden, their policy that you inherited and you’ve got to deal with, it says that their leave of absence is unlimited. How do you deal with that? First of all, how do you miss that? A lot of things go into that scenario.

Stuart Oberman: [00:07:16] Next, we’ve talked about this one on our two previous podcasts, non-competes. So, I don’t want to belabor this. Again, I think it’s a trend. The FTC has issued a proposed ban – which is under a lot of review – for non-competes. So, if that occurs, that will fundamentally change the relationship of current employees and future employees as far as what you can and cannot enforce.

Stuart Oberman: [00:07:48] Folks, that is just about four or so topics that are really the hot topics right now going in 2023. And I’m telling you, I’m sure there’s going to be offshoots, extensions, reductions of these various policies and procedures under state, federal, and even national level. So, keep track of what’s going on. Keep listening to our podcast.

Stuart Oberman: [00:08:13] Folks, thanks for joining us today on Advisory Insights. Stuart Oberman, your host. If you have any questions, please feel free to give us a call, 770-886-2400 or stuart@obermanlaw.com. Have a fantastic day.

Outro: [00:08:28] Thank you for joining us on Advisory Insights. This show is brought to you by Oberman Law Firm, a business-centric law firm representing local, regional, and national clients in a wide range of practice areas, including health care, mergers and acquisitions, corporate transactions, and regulatory compliance.

About Advisory Insights Podcast

Presented by Oberman Law Firm, Advisory Insights Podcast covers legal, business, HR, and other topics of vital concern to healthcare practices and other business owners. This show series can be found here as well as on all the major podcast apps.

Stuart Oberman, Oberman Law Firm

Oberman Law Firm

Stuart Oberman is the founder and President of Oberman Law Firm. Mr. Oberman graduated from Urbana University and received his law degree from John Marshall Law School. Mr. Oberman has been practicing law for over 25 years, and before going into private practice, Mr. Oberman was in-house counsel for a Fortune 500 Company. Mr. Oberman is widely regarded as the go-to attorney in the area of Dental Law, which includes DSO formation, corporate business structures, mergers and acquisitions, regulatory compliance, advertising regulations, HIPAA, Compliance, and employment law regulations that affect dental practices.

In addition, Mr. Oberman’s expertise in the healthcare industry includes advising clients in the complex regulatory landscape as it relates to telehealth and telemedicine, including compliance of corporate structures, third-party reimbursement, contract negotiations, technology, health care fraud, and abuse law (Anti-Kickback Statute and the State Law), professional liability risk management, federal and state regulations.

As the long-term care industry evolves, Mr. Oberman has the knowledge and experience to guide clients in the long-term care sector with respect to corporate and regulatory matters, assisted living facilities, continuing care retirement communities (CCRCs). In addition, Mr. Oberman’s practice also focuses on health care facility acquisitions and other changes of ownership, as well as related licensure and Medicare/Medicaid certification matters, CCRC registrations, long-term care/skilled nursing facility management, operating agreements, assisted living licensure matters, and health care joint ventures.

In addition to his expertise in the health care industry, Mr. Oberman has a nationwide practice that focuses on all facets of contractual disputes, including corporate governance, fiduciary duty, trade secrets, unfair competition, covenants not to compete, trademark and copyright infringement, fraud, and deceptive trade practices, and other business-related matters. Mr. Oberman also represents clients throughout the United States in a wide range of practice areas, including mergers & acquisitions, partnership agreements, commercial real estate, entity formation, employment law, commercial leasing, intellectual property, and HIPAA/OSHA compliance.

Mr. Oberman is a national lecturer and has published articles in the U.S. and Canada.

LinkedIn

Oberman Law Firm

Oberman Law Firm has a long history of civic service, noted national, regional, and local clients, and stands among the Southeast’s eminent and fast-growing full-service law firms. Oberman Law Firm’s areas of practice include Business Planning, Commercial & Technology Transactions, Corporate, Employment & Labor, Estate Planning, Health Care, Intellectual Property, Litigation, Privacy & Data Security, and Real Estate.

By meeting their client’s goals and becoming a trusted partner and advocate for our clients, their attorneys are recognized as legal go-getters who provide value-added service. Their attorneys understand that in a rapidly changing legal market, clients have new expectations, constantly evolving choices, and operate in an environment of heightened reputational and commercial risk.

Oberman Law Firm’s strength is its ability to solve complex legal problems by collaborating across borders and practice areas.

Connect with Oberman Law Firm:

Company website | LinkedIn | Twitter

FTC Proposed Ban on Non-Compete Agreements

by

FTC Proposed Ban on Non-Compete Agreements
Advisory Insights Podcast
FTC Proposed Ban on Non-Compete Agreements
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FTC Proposed Ban on Non-Compete Agreements

FTC Proposed Ban on Non-Compete Agreements (Advisory Insights Podcast, Episode 31)

On this episode of Advisory Insights, Stuart Oberman of Oberman Law Firm discussed the Federal Trade Commission’s (FTC) proposed ban on non-compete agreements. Stuart talked about how this ban, if enacted, would extend to nearly all work arrangements, including unpaid or volunteer positions, apprentices, and independent contractors, in addition to regular employees.

Advisory Insights is presented by Oberman Law Firm and produced by the North Fulton studio of Business RadioX®. The series can be found on all the major podcast apps. You can find the complete show archive here.

TRANSCRIPT

Intro: [00:00:01] Broadcasting from the Studios of Business RadioX, it’s time for Advisory Insights. Brought to you by Oberman Law Firm, serving clients nationwide with tailored service and exceptional results. Now, here’s your host.

Stuart Oberman: [00:00:20] Hello everyone, and welcome to Advisory Insights. Your host, Stuart Oberman, here. All right. Folks, we’re going to gear it up pretty quick on this one. As a firestorm continues, this episode, FTC Proposed Ban on Non-competes.

Stuart Oberman: [00:00:37] So, on our previous episode, we talked about some companies the FTC sort of slapped a little bit, if you will, in relation to their January 4, 2023 press release from the FTC. But now, I want to talk about the Biden Administration’s proposed ban on non-competes.

Stuart Oberman: [00:00:58] Look, I don’t care what your politics is. It doesn’t matter to me. I don’t care who you vote for. I don’t care what you do behind closed doors. It doesn’t matter to me. But what I’m looking at is we have to look at the cards that are on the table. Again, this is not politics. This is purely, purely law.

Stuart Oberman: [00:01:22] So, under the Biden Administration’s request, the FTC is looking into banning non-compete agreements. So, what does that mean? I’m going broad scope here. The FTC’s proposal would extend to nearly all work arrangements, including – got to get this, including -unpaid or volunteer positions, apprentices, independent contractors, in addition to regular employees. Now, that is extremely broad-based.

Stuart Oberman: [00:01:58] So, I don’t want to go too far in detail because there’s a lot of things that are going to go into this. There’s a lot of public notices that have to go out. But what I want to do is point out the extreme necessity that our employers need to look at regarding this non-competes.

Stuart Oberman: [00:02:15] So, under the rule, under the proposed rule, employers would be required – not optional, required – to rescind previously entered non-compete provisions and – get this – inform workers in writing via letter, email, text message that their agreement is no longer in effect or even enforceable.

Stuart Oberman: [00:02:45] Now, if you’ve got a large company with thousands and thousands of employees, under this rule – again, nothing’s etched in stone. There’s a lot of commentary. There’s a lot of things that we’re looking at. You got to look at the executive order and what that is exactly directing the FTC to do – employers would be required to rescind previously non-compete provisions and inform workers in writing, via letter, email, text message – assuming that everyone reads their emails and gets the emails – that the agreement is no longer enforceable.

Stuart Oberman: [00:03:25] So, a couple of carve outs. The proposed rule could potentially not apply to franchisee or franchise agreements or – and this is critical. This goes to the M&A field, mergers and acquisitions – agreements between buyers and sellers of a business. That’s a carve out, because if you look at what those buy-sell agreements are, they’re actually valuable consideration for those. So, if you’re paying someone $50 or $50 million to buy it out, you’ve got some kind of consideration. That’s a whole nother legal issue.

Stuart Oberman: [00:04:05] But both of these agreements would be continued to remain subject to, of course, antitrust laws, but wouldn’t necessarily affect the rule. So, I think those are two extremely carve outs, especially when we’re looking to buy-sell agreements. Now, that can be businesses, professional mergers and acquisitions.

Stuart Oberman: [00:04:27] So, last year, as a firm, we did about 135 transactions with about 350 million total dollar amount. So, I can see why that would be a carve out exception. But one thing to look at is, first and foremost, this rule doesn’t go into effect for many, many months. There’s a lot of commentary. And I don’t know that we want to waste a whole lot of time on what-could-be’s and a whole lot of Sunday morning talk show it matters. But what I want to do is put this in forefront of you’ve got to look at what you’re doing on a daily basis going forward.

Stuart Oberman: [00:05:04] So, first, I will guarantee you that if this law goes into effect, there’s going to be numerous legal challenges. There’s just going to be legal challenges. First, does this, in fact, exceed the FTC’s permission – I mean, authority within rulemaking authority under the Federal Trade Commission Act, first and foremost? That’s an issue. Then, under that act, you’ve got, of course, potential delegation clause. What does that look like?

Stuart Oberman: [00:05:30] And second, the rule making may very well invade the state’s province of contract law. So, we’ve got state issues to look at. And then, under the third provision, it may trigger major question doctrine, whether or not the ban would have to be something that would undertake by Congress, and not the FTC, as an executive rule.

Stuart Oberman: [00:06:03] Again, I’m going to repeat that. We have to look at whether or not this action, the ban would actually come under Congress’s authority and not the FTC. Again, a couple issues. So, we’ve got to look at what’s going on with the ban months away, a lot of commentary. I’m sure there’s going to be tweaks and challenges along the road.

Stuart Oberman: [00:06:30] Again, I don’t want to get into politics here, but we’ve got to look at what we have to look at. Then, we’re going to look into three areas that we say that it may not be enforceable. So, again, I want to put this on the forefront of our employers on state, local, national, and international level as to what’s to be expected.

Stuart Oberman: [00:06:50] Folks, that’s all I’m going to comment today – maybe not tomorrow, but today on non-compete agreements and the FTC ban. Folks, Stuart Oberman here, your host. Thanks again for joining us on Advisory Insights. If you have any questions, give us a call, 770-886-2400. Or send me an email, stuart, S-T-U-A-R-T, @obermanlaw.com. Folks, thanks for joining and have a fantastic day.

Outro: [00:07:16] Thank you for joining us on Advisory Insights. This show is brought to you by Oberman Law Firm, a business-centric law firm representing local, regional, and national clients in a wide range of practice areas, including health care, mergers and acquisitions, corporate transactions, and regulatory compliance.

About Advisory Insights Podcast

Presented by Oberman Law Firm, Advisory Insights Podcast covers legal, business, HR, and other topics of vital concern to healthcare practices and other business owners. This show series can be found here as well as on all the major podcast apps.

Stuart Oberman, Oberman Law Firm

Oberman Law Firm

Stuart Oberman is the founder and President of Oberman Law Firm. Mr. Oberman graduated from Urbana University and received his law degree from John Marshall Law School. Mr. Oberman has been practicing law for over 25 years, and before going into private practice, Mr. Oberman was in-house counsel for a Fortune 500 Company. Mr. Oberman is widely regarded as the go-to attorney in the area of Dental Law, which includes DSO formation, corporate business structures, mergers and acquisitions, regulatory compliance, advertising regulations, HIPAA, Compliance, and employment law regulations that affect dental practices.

In addition, Mr. Oberman’s expertise in the healthcare industry includes advising clients in the complex regulatory landscape as it relates to telehealth and telemedicine, including compliance of corporate structures, third-party reimbursement, contract negotiations, technology, health care fraud, and abuse law (Anti-Kickback Statute and the State Law), professional liability risk management, federal and state regulations.

As the long-term care industry evolves, Mr. Oberman has the knowledge and experience to guide clients in the long-term care sector with respect to corporate and regulatory matters, assisted living facilities, continuing care retirement communities (CCRCs). In addition, Mr. Oberman’s practice also focuses on health care facility acquisitions and other changes of ownership, as well as related licensure and Medicare/Medicaid certification matters, CCRC registrations, long-term care/skilled nursing facility management, operating agreements, assisted living licensure matters, and health care joint ventures.

In addition to his expertise in the health care industry, Mr. Oberman has a nationwide practice that focuses on all facets of contractual disputes, including corporate governance, fiduciary duty, trade secrets, unfair competition, covenants not to compete, trademark and copyright infringement, fraud, and deceptive trade practices, and other business-related matters. Mr. Oberman also represents clients throughout the United States in a wide range of practice areas, including mergers & acquisitions, partnership agreements, commercial real estate, entity formation, employment law, commercial leasing, intellectual property, and HIPAA/OSHA compliance.

Mr. Oberman is a national lecturer and has published articles in the U.S. and Canada.

LinkedIn

Oberman Law Firm

Oberman Law Firm has a long history of civic service, noted national, regional, and local clients, and stands among the Southeast’s eminent and fast-growing full-service law firms. Oberman Law Firm’s areas of practice include Business Planning, Commercial & Technology Transactions, Corporate, Employment & Labor, Estate Planning, Health Care, Intellectual Property, Litigation, Privacy & Data Security, and Real Estate.

By meeting their client’s goals and becoming a trusted partner and advocate for our clients, their attorneys are recognized as legal go-getters who provide value-added service. Their attorneys understand that in a rapidly changing legal market, clients have new expectations, constantly evolving choices, and operate in an environment of heightened reputational and commercial risk.

Oberman Law Firm’s strength is its ability to solve complex legal problems by collaborating across borders and practice areas.

Connect with Oberman Law Firm:

Company website | LinkedIn | Twitter

FTC Cracks Down on Companies Non-Compete Restrictions

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non-complete restrictions
Advisory Insights Podcast
FTC Cracks Down on Companies Non-Compete Restrictions
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non-complete restrictions

FTC Cracks Down on Companies Non-Compete Restrictions (Advisory Insights Podcast, Episode 30)

On the episode of Advisory Insights, Stuart Oberman of Oberman Law Firm discussed how the Federal Trade Commission (FTC) is cracking down on companies that have non-compete restrictions. Stuart gives a quick update on the current state of non-compete agreements, noting that there is a lot of uncertainty and that this could have a chilling effect on the professional fields.

Advisory Insights is presented by Oberman Law Firm and produced by the North Fulton studio of Business RadioX®. The series can be found on all the major podcast apps. You can find the complete show archive here.

TRANSCRIPT

Intro: [00:00:01] Broadcasting from the Studios of Business RadioX, it’s time for Advisory Insights. Brought to you by Oberman Law Firm, serving clients nationwide with tailored service and exceptional results. Now, here’s your host.

Stuart Oberman: [00:00:20] And welcome everyone to Advisory Insights. Stuart Oberman here, your host. All right. Folks, we’re going to be off and running today on the podcast. An enormous topic that is taking the business world by extreme uncertainty. We’ve got fires going everywhere. I want to talk about the FTC cracks down on company’s non-compete restrictions.

Stuart Oberman: [00:00:44] So, I want to briefly review this particular matter because this is a prelude to what I think the Federal Government is going to do down the road. So, I want to review a release dated January 4, 2023 that the FTC released. And I want to look at some broad things on this.

Stuart Oberman: [00:01:07] So, what happened is the FTC has taken action against three companies, two individuals – get this – forcing them to drop non-compete restrictions that would have imposed thousands and thousands of workers with restrictions. So, what does this mean?

Stuart Oberman: [00:01:27] So, according to the FTC, each of the companies and individuals illegally – illegally – impose non-compete restrictions on workers in positions that range from low level security guards to manufacturing workers to engineers that just stepped into the professional markets – engineers – which barred them from seeking or accepting another employer or operating a competing business after they left the company. Folks, that is extremely, extremely problematic going down the road.

Stuart Oberman: [00:02:13] Now, one of the things we need to look at in this particular order – and you’ve got to sort of read between the lines on this, what the FTC said – they issued a statement that they are going to vigorously – cannot just enforce, but vigorously – enforce Section 5, which prohibits unfair methods of competition. Which, from all indications is going to be non-compete agreements.

Stuart Oberman: [00:02:44] So, in each these cases – and I’m not going to go into names because it’s all public record, but I want to look at the ramifications – the FTC ordered the companies to cease enforcing, threatening to enforce, or imposing non-compete restrictions on relevant workers. Now, understand that. The FTC said, the government said you are not going to enforce these. You’re not going to threaten employees – which means you cannot allegedly send a letter of a cease and desist that if you do this, you’ll have this penalty, your contract says this, you’re going to be sued, whatever – or impose non-compete restrictions on relevant workers. So, they’ve also required – again, far reaching effect – the employer should notify the infected employees that they are no longer bound by the restrictions.

Stuart Oberman: [00:03:51] So, you got to understand this. They said, “Oh, by the way, three companies, two individuals, we’re nullifying your non-compete agreements.” And not only that, but now you’ve got to notify the employees that, “Oh, by the way, we’re not enforcing your non-compete.”

Stuart Oberman: [00:04:08] So, I want to go through some things that the FTC, in this order – which I’m going to give you my opinion. It’s going to be a prelude of what’s down the road. There’s a lot of things going on we need to look at, but this is the prelude – they have banned in the order the company from communicating to any relevant employee or other employer that the employee is subject to a non-compete – which means you’ve cut off communication to third parties – requiring them to void and nullify the challenge non-competes without penalizing the infected employees – without penalizing the infected employees.

Stuart Oberman: [00:04:56] Require them to provide copies of the order to current and past employees who are subject to the challenges non-compete. Again, get that, current and past employees. Require them to provide a copy of the complaint and order to current and future directors, officers, employees of the companies who are responsible for hiring and recruiting. That’s H.R., folks. That’s H.R. So, now this is their H.R. responsibility.

Stuart Oberman: [00:05:34] So then, here’s the interesting part, again, far reaching. Requires them for the next ten years – ten years, not ten days, but ten years – to provide a clear and conspicuous notice to any relevant employees that they may freely seek or accept a job with any company or person, run their own business, or compete with them at any time following their employment.

Stuart Oberman: [00:06:05] Folks, you understand what that is and how far reaching that is to these three businesses and two individuals? So, again, there’s been a lot of discussion as to what is going to take place as far as non-competes go. But what I’m giving you right now is an actual FTC release as to what occurred to these three companies and two individuals.

Stuart Oberman: [00:06:33] So, what do we do from here? I think that knowing what we know now, I think every, every, every company has got to look at their H.R. top to bottom. They’ve got to look at their non-competes. Now, are we non-solicitations, trade secrets. No. That’s non-competes. I think we’ve got to take a look at every contract. I don’t care what business you’re in, whether you’re in dental or manufacturing or global and you’ve got business in the United States. I think we need to look at every contract that has a non-compete agreement in it, and determine what the ramifications are and how broad this is.

Stuart Oberman: [00:07:11] First and foremost, we’ve got to determine, one, forget about the FTC, whether or not you’re non-compete, is it even enforceable? There’s very specific guidelines for that. It’s got to be geographically specific. It can’t be overly broad. So, there’s some very specifics. So, once we get through that that hurdle and say, “Yeah. It’s enforceable,” on a general basis, then we need to take a look at these these non-competes as a whole and figure out how as a company you’re going to approach this.

Stuart Oberman: [00:07:36] Folks, it is some Wild Wild West stuff going out there on non-compete agreements and in business environments. And I think this may have a chilling effect on, especially, the professional fields. Folks, that’s a quick update on a very, very broad topic that I could spend probably three hours on a whole event on.

Stuart Oberman: [00:07:55] But thank you again, folks, for joining us on the podcast for Advisory Insights. My name is Stuart Oberman. If you have any questions, please feel free to give us a call, 770-886-2400. Or send me an email, stuart, S-T-U-A-R-T, @obermanlaw.com Thanks, folks, and have a fantastic day.

Outro: [00:08:16] Thank you for joining us on Advisory Insights. This show is brought to you by Oberman Law Firm, a business-centric law firm representing local, regional, and national clients in a wide range of practice areas, including health care, mergers and acquisitions, corporate transactions, and regulatory compliance.

About Advisory Insights Podcast

Presented by Oberman Law Firm, Advisory Insights Podcast covers legal, business, HR, and other topics of vital concern to healthcare practices and other business owners. This show series can be found here as well as on all the major podcast apps.

Stuart Oberman, Oberman Law Firm

Oberman Law Firm

Stuart Oberman is the founder and President of Oberman Law Firm. Mr. Oberman graduated from Urbana University and received his law degree from John Marshall Law School. Mr. Oberman has been practicing law for over 25 years, and before going into private practice, Mr. Oberman was in-house counsel for a Fortune 500 Company. Mr. Oberman is widely regarded as the go-to attorney in the area of Dental Law, which includes DSO formation, corporate business structures, mergers and acquisitions, regulatory compliance, advertising regulations, HIPAA, Compliance, and employment law regulations that affect dental practices.

In addition, Mr. Oberman’s expertise in the healthcare industry includes advising clients in the complex regulatory landscape as it relates to telehealth and telemedicine, including compliance of corporate structures, third-party reimbursement, contract negotiations, technology, health care fraud, and abuse law (Anti-Kickback Statute and the State Law), professional liability risk management, federal and state regulations.

As the long-term care industry evolves, Mr. Oberman has the knowledge and experience to guide clients in the long-term care sector with respect to corporate and regulatory matters, assisted living facilities, continuing care retirement communities (CCRCs). In addition, Mr. Oberman’s practice also focuses on health care facility acquisitions and other changes of ownership, as well as related licensure and Medicare/Medicaid certification matters, CCRC registrations, long-term care/skilled nursing facility management, operating agreements, assisted living licensure matters, and health care joint ventures.

In addition to his expertise in the health care industry, Mr. Oberman has a nationwide practice that focuses on all facets of contractual disputes, including corporate governance, fiduciary duty, trade secrets, unfair competition, covenants not to compete, trademark and copyright infringement, fraud, and deceptive trade practices, and other business-related matters. Mr. Oberman also represents clients throughout the United States in a wide range of practice areas, including mergers & acquisitions, partnership agreements, commercial real estate, entity formation, employment law, commercial leasing, intellectual property, and HIPAA/OSHA compliance.

Mr. Oberman is a national lecturer and has published articles in the U.S. and Canada.

LinkedIn

Oberman Law Firm

Oberman Law Firm has a long history of civic service, noted national, regional, and local clients, and stands among the Southeast’s eminent and fast-growing full-service law firms. Oberman Law Firm’s areas of practice include Business Planning, Commercial & Technology Transactions, Corporate, Employment & Labor, Estate Planning, Health Care, Intellectual Property, Litigation, Privacy & Data Security, and Real Estate.

By meeting their client’s goals and becoming a trusted partner and advocate for our clients, their attorneys are recognized as legal go-getters who provide value-added service. Their attorneys understand that in a rapidly changing legal market, clients have new expectations, constantly evolving choices, and operate in an environment of heightened reputational and commercial risk.

Oberman Law Firm’s strength is its ability to solve complex legal problems by collaborating across borders and practice areas.

Connect with Oberman Law Firm:

Company website | LinkedIn | Twitter

Five Sections in Your Employee Manual Which Should Be Overhauled

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Five Sections in Your Employee Manual Which Should Be Overhauled
Advisory Insights Podcast
Five Sections in Your Employee Manual Which Should Be Overhauled
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Five Sections in Your Employee Manual Which Should Be Overhauled

Five Sections in Your Employee Manual Which Should Be Overhauled (Advisory Insights Podcast, Episode 29)

On this episode of Advisory Insights, Stuart Oberman of Oberman Law Firm discussed the five sections of your employee manual that should be overhauled to comply with changing laws. He covered topics such as regulating employee appearance, work arrangements, and communication.

Advisory Insights is presented by Oberman Law Firm and produced by the North Fulton studio of Business RadioX®. The series can be found on all the major podcast apps. You can find the complete show archive here.

TRANSCRIPT

Intro: [00:00:01] Broadcasting from the studios of Business RadioX, it’s time for Advisory Insights. Brought to you by Oberman Law Firm, serving clients nationwide with tailored service and exceptional results. Now, here’s your host.

Stuart Oberman: [00:00:20] Hello and welcome to Advisory Insights Podcast. Stuart Oberman here, your host. Well, I want to talk about H.R. I know that’s a topic I talk a lot about, but until I stop getting calls regarding H.R. compliance matters, I’m going to keep harping on this.

Stuart Oberman: [00:00:37] Today’s topic, five sections that should be overhauled in your employee manual. First and foremost, do you have an employee manual to start with? So, for those that do not have an employee manual, I want you to write this down on each sections we’re going to look at.

Stuart Oberman: [00:00:55] Get an employee manual. If you have an employee manual that is 15 pages, shred it and get another one. If you have an employee manual that is probably less than 40 pages, I’m going to recommend you really have someone take a look at that manual and make sure it’s good because the law is changing constantly.

Stuart Oberman: [00:01:12] Let’s take a look at our sections. First and foremost, I’m going to say that you need to regulate appearance. Now, what each employer does with appearance and what they allow is not for me to comment. But what’s happening is, is that you must have, got to have written policies regarding appearance to take into account.

Stuart Oberman: [00:01:37] And why do I say this? Because what’s happening is we’re seeing legislation all over the country regulating appearance. We have legislation – and I’ve said this before but I want to stress this again – regulating hair. What is professional hair? So, for those that don’t really follow H.R. items, I want to bring into account where a particular state brought in the Crown Act.

Stuart Oberman: [00:02:05] For example, what is the Crown Act? It essentially bans race-based hair discrimination in the workplace. So, the Crown Act or similar legislation has been enacted in 19 states. Folks, I’ll repeat that, has been enacted in 19 states. How many people listening to this podcast have any idea whether or not their state even is included in that kind of legislation or has a bill pending for that legislation at the Federal level, which sits at the Senate right now? So, again, number one appearance. Again, I can’t make up this legislation.

Stuart Oberman: [00:02:50] Work arrangements. I will tell you, folks, depending on your region, people aren’t going back to the offices. Now, we see that in different regions, different mobilities. We’re talking to a law firm the other day that had 200 people. None of them are back to the office. I don’t know what that rent is, but it’s got to be expensive. So, I want to make sure you know this, that your organization, I don’t care what you do, you have to have expectations around communication.

Stuart Oberman: [00:03:23] First off, do you even have a policy in place that regulates a hybrid? Do you have a policy in place that outlines what is strategically your employer’s information, when they’re coming in, when they’re speaking to members of the office, when they’re supposed to answer the phones, when they report deadlines? Again, I want you to make sure that you are regulating work arrangements. And, also, I want to make sure that you have a policy that goes into a place and regulates remote conduct and what should or should not be taking place.

Stuart Oberman: [00:04:02] So, again, technology is at the forefront of all this. Things change. I know we constantly look at software improvements, where this technology is going. Everything today is outdated in six months, it seems like. So, I want to make sure, number three, technology. That you have policies in place in your handbook that regulate and mention remote work and hybrid.

Stuart Oberman: [00:04:33] Are you using multifactor authentication? Are employees using their own devices? How do you regulate that? Is there a standard? What happens if that cell phone is lost? Other shutdown mechanisms? Are you allowing employees to purchase their own technology on your technology? What happens if you have a computer that is specifically for you and your employee, and, all of a sudden, you have an employee downloading stuff on your software, on your hard drive, or a laptop? Do you have stuff that regulates that? What does that look like?

Stuart Oberman: [00:05:08] So, you’ve got to decide what’s regulated, what’s work related, who pays for these expenses? What does it look like in the employee manual, if you even have an employee manual? I would encourage you to do these. Again, write down these items.

Stuart Oberman: [00:05:23] Number four, sick leave. So, what happened is, before the pandemic many states and localities lacked sick leave laws. But now what we’re seeing, we’re seeing an active, a very, very active legislative agenda for states that are manipulating and approving certain leave acts that go way beyond what the employers indicate for that state.

Stuart Oberman: [00:05:55] So, I want you to make sure you know what you’re sick leave is. How many employees do you have? Do you have reasonable accommodations? What happens if you don’t have reasonable accommodations? You know, again, I want to make sure that under the sick leave, you have the Family Medical Leave Act in place, all those things.

Stuart Oberman: [00:06:16] You know, I keep going back to this topic because it’s just a crazy topic. Number five, marijuana usage and testing. I can’t stress this enough. I know I talked a lot about this in 2022. We’re going to talk about this in 2023. A couple of states come to mind, New York and California.

Stuart Oberman: [00:06:43] So, first and foremost, I don’t want to rehash what we did on a previous podcast or what we’re going to do coming forward. But don’t forget Federal Law, still, marijuana is illegal. But many states protect workers. You’ve got to make sure you know what states protect you as an employer or your workers. Now, we’ve got to worry about other things that are coming into play regarding – I’ll use the term – magic mushrooms. We’re going back to the ’60s. Here we go, folks. Again, with the prevalence of states enacting laws regarding this, this has got to be at the forefront of issues.

Stuart Oberman: [00:07:20] So, employers, you need to be out in the forefront of the trend. You’ve got to make a decision on what you’re doing. You can’t put your head in the sand on these issues because every one of these five issues are going to come up at some point in your workplace. It’s not a question of if. It is a question of when. And you’ve got to be prepared. It’s got to be in writing. And your employees have got to know what their outlines are. You’ve got to know what your outlines are. You’ve got to know what your deadlines are, and what you’re going to accept and not accept.

Stuart Oberman: [00:07:53] Folks, the top five, you got to know it. You got to know it. Employee manual, top five sections you’ve got to overhaul. Again, I’m going to run through this real quick, real quick. Appearance, work arrangements-remote/hybrid, technology-remote/hybrid, sick leave, and last but not least – the favorite topic that I like talking about – marijuana usage and testing.

Stuart Oberman: [00:08:21] Folks, it’s been a pleasure. Thanks for joining us on Advisory Insights Podcast. If you have any questions, please feel free to give us a call, 770-886-2400, or email, stuart, S-T-U-A-R-T, @obermanlaw.com. Folks, have a fantastic day and thanks for listening to Advisory Insights Podcast.

Outro: [00:08:45] Thank you for joining us on Advisory Insights. This show is brought to you by Oberman Law Firm, a business-centric law firm representing local, regional, and national clients in a wide range of practice areas, including healthcare, mergers and acquisitions, corporate transactions, and regulatory compliance.

About Advisory Insights Podcast

Presented by Oberman Law Firm, Advisory Insights Podcast covers legal, business, HR, and other topics of vital concern to healthcare practices and other business owners. This show series can be found here as well as on all the major podcast apps.

Stuart Oberman, Oberman Law Firm

Oberman Law Firm

Stuart Oberman is the founder and President of Oberman Law Firm. Mr. Oberman graduated from Urbana University and received his law degree from John Marshall Law School. Mr. Oberman has been practicing law for over 25 years, and before going into private practice, Mr. Oberman was in-house counsel for a Fortune 500 Company. Mr. Oberman is widely regarded as the go-to attorney in the area of Dental Law, which includes DSO formation, corporate business structures, mergers and acquisitions, regulatory compliance, advertising regulations, HIPAA, Compliance, and employment law regulations that affect dental practices.

In addition, Mr. Oberman’s expertise in the healthcare industry includes advising clients in the complex regulatory landscape as it relates to telehealth and telemedicine, including compliance of corporate structures, third-party reimbursement, contract negotiations, technology, health care fraud, and abuse law (Anti-Kickback Statute and the State Law), professional liability risk management, federal and state regulations.

As the long-term care industry evolves, Mr. Oberman has the knowledge and experience to guide clients in the long-term care sector with respect to corporate and regulatory matters, assisted living facilities, continuing care retirement communities (CCRCs). In addition, Mr. Oberman’s practice also focuses on health care facility acquisitions and other changes of ownership, as well as related licensure and Medicare/Medicaid certification matters, CCRC registrations, long-term care/skilled nursing facility management, operating agreements, assisted living licensure matters, and health care joint ventures.

In addition to his expertise in the health care industry, Mr. Oberman has a nationwide practice that focuses on all facets of contractual disputes, including corporate governance, fiduciary duty, trade secrets, unfair competition, covenants not to compete, trademark and copyright infringement, fraud, and deceptive trade practices, and other business-related matters. Mr. Oberman also represents clients throughout the United States in a wide range of practice areas, including mergers & acquisitions, partnership agreements, commercial real estate, entity formation, employment law, commercial leasing, intellectual property, and HIPAA/OSHA compliance.

Mr. Oberman is a national lecturer and has published articles in the U.S. and Canada.

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Oberman Law Firm

Oberman Law Firm has a long history of civic service, noted national, regional, and local clients, and stands among the Southeast’s eminent and fast-growing full-service law firms. Oberman Law Firm’s areas of practice include Business Planning, Commercial & Technology Transactions, Corporate, Employment & Labor, Estate Planning, Health Care, Intellectual Property, Litigation, Privacy & Data Security, and Real Estate.

By meeting their client’s goals and becoming a trusted partner and advocate for our clients, their attorneys are recognized as legal go-getters who provide value-added service. Their attorneys understand that in a rapidly changing legal market, clients have new expectations, constantly evolving choices, and operate in an environment of heightened reputational and commercial risk.

Oberman Law Firm’s strength is its ability to solve complex legal problems by collaborating across borders and practice areas.

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1000 Abernathy Rd. NE
Building 400, Suite L-10
Sandy Springs, GA 30328