Whether you are in need of a receptionist to answer phones or a paralegal to assist with complex matters, at some point you will likely need to hire someone. Your clients will not want to pay hundreds of dollars an hour for you to format a document or call the courthouse to check on available motion dates. Logically, if you reach the point where you are spending as much time handling the administrative work as you are handling the legal work, you are probably leaving money on the table. Good employees will provide a positive return on investment.
This section contains human resources recommendations from seasoned attorneys.
Advice on Hiring
- Consult with your accountant about expenses and related requirements associated with an employee, such as federal withholding, unemployment insurance, etc. Be sure to take this into account as you budget for your new employee
- Consult with a tax attorney about whether there are benefits to changing your business entity structure now that you plan to hire staff (e.g., changing from a sole proprietorship to a PLLC or an S-Corporation).
- Hire slowly.
- Write a persuasive advertisement, being careful not to oversell the job; advertise the position in publications that attract quality candidates.
- Thoroughly vet any prospective employee by calling references and former employers, where appropriate, completing a criminal background and obtaining a credit history. Remember, this person may have access to client funds and your funds, and you are responsible for their actions. Make sure that there are no red flags that would cause a reasonable person to pass on their employment. Consult relevant state and federal laws.
- Ask the prospective employee if you can contact his or her current employer, since some applicants may not have informed their current employer that they are seeking other work.
- Have an applicant complete a written application with a provision that providing false information on the application is grounds for termination.
- Have a written job description and tie your compensation to the marketability of a person with those skills. While you should be cognizant of your overhead, do not “low ball” employees. If you treat them right from the beginning – including fair pay - they will be loyal.
- Hire someone with the most experience you can afford. While you may have been learning the law, they have been running a law office.
- The TBA expects its members to adhere to federal, state and local laws that prohibit discrimination in employment. Please review relevant laws to determine if they apply to your place of employment.
- Familiarize yourself with wage and hour requirements of the Fair Labor Standards Act (FLSA) and state law. State law requires certain break periods, and the FLSA entitles most employees to overtime compensation. Simply calling an employee “salaried” does not make it legal not to pay the employee for hours worked in excess of 40 hours per week. You may want to speak to an employment/labor attorney about whether your employee should be paid overtime wages.
Advice on Interviews
The interview is a critical step in the hiring process and its importance cannot be overstated.
- Be flexible about scheduling interviews. A good candidate may have to be scheduled after his or her normal working hours.
- Review the resume or application in advance to learn the basic information about the person.
- Set the tone for the interview by making the applicant feel at ease. Use his or her name. Take a few minutes to break the ice by talking about an item of interest from the applicant's resume.
- Don't oversell your practice or the job. If the job is not up to the expectations you create, your new-hire may leave sooner than you'd like
- Ask open-ended questions. Try to ask the same questions of all applicants. Listen carefully to the answers and take notes so that you can compare the applicants’ responses.
- Stay away from questions of a personal nature that violate state or federal law.
- Maximize video conferencing tools to facilitate the interview process. Video interviews can easily be scheduled to engage additional managers and key staff members in the interview process.
- Document the interviewing process appropriately to ensure a fair process.
- Acceptable and Unacceptable Inquiries for Interviews and Employment Applications
Additional Interview Questions:
- What is important to you in a job?
- When you are under a lot of stress, what is your typical reaction?
- What motivates you the most?
- Have you ever made an error in judgment that you had to address with your employer? How did you handle it?
- What do you expect to find at this law firm that you don't have in your current or last job?
- How do you measure your own success?
- What are two examples of tasks that you do not particularly enjoy doing?
- How were you motivated enough to complete those tasks?
- Tell me about your software skills, the programs you know and what you can do with them.
- Have you ever been in a situation where a document was returned due to errors? What effect did this have on you?
- If you took out a full-page ad in the newspaper and had to describe yourself in only three words, what would those words be?
- Have you ever had to resolve a conflict with a co-worker? How did you resolve it?
- How do you feel about remote work?
- Do you have a dedicated space at home that you can dedicate to work?
Advice on Supervision
- Have written expectations regarding attendance, performance, job duties, and standards expected. Document that your employee has received and understands the policy.
- Document violations of policy and attempts made to address employee performance and/or behavior. Make a good faith effort to determine whether the employee is likely to improve and give him/her a good faith opportunity to improve.
- In general, unless you have an employment contract that specifies otherwise, employment in Tennessee is considered “at will,” meaning an employee can be terminated with or without cause. There are, however, exceptions to this. For example, it is unlawful to terminate an employee for speaking out against or refusing to engage in unlawful activity. Additionally, state and federal law prohibits discrimination in employment on the basis of a protected class (e.g., race, color, nationality, religion, sex, age, disability).
- You should familiarize yourself with Tennessee law regarding unemployment benefits. Even if you fire someone for cause based on their inability to perform necessary job functions, it may cost you.
Issues Surrounding Terminations
• If your former employee applies for and received unemployment benefits, your mandatory unemployment insurance premiums may increase.
• A former employee may receive unemployment benefits if they are terminated for something other than “misconduct.” Consult Tennessee employment statute for most recent definition of misconduct.
Ethical Issues in Human Resources
As set forth in RPC 5.3, you are responsible for conduct of your employee(s) that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if you ordered or ratify the conduct, or if you know of your employee’s conduct at a time when its consequences can be avoided or mitigated but fail to take reasonable remedial action.