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welcome to another edition to do this some more show today we are speaking with someone who you have asked me to bring on the show that's right you've asked me several questions related to the law and the legal aspects of your business and today I have with me probably the best person to answer these questions I have Russell Berger with me and Russ is an attorney with the law firm of offic Kerman for those of you who don't know often Kerman is the fastest growing law firm on the East Coast they have offices in as of today 12 different cities by the time you watch this it probably will be 14 or 16 different cities ranging from New York all the way down to Charlotte and they're growing and expanding at a rapid pace the reason I want Russ to be on the show is I have regular conversations with Russ every month sometimes even more frequently than that about employment law and how business owners entrepreneurs sales leaders get in trouble for not following good business practices and then they get sued and lawsuits are super expensive so today I'm gonna do this sell more show we're going to talk about what you can do when you have to fire a top performer we're going to talk about non-compete agreements and why they're so important with your sales team and we're also going to get into as long as we have enough time at the end things that you say that cost you a ton of money when your employees become disgruntled then they decide they no longer want to work with you so let me tell you why I want Russ here on the show I'm gonna read you his bio but for me I think Russ is the kind of guy who can take difficult complex issues in labor and employment and break them down into really easy to understand business realities and that's something that you don't find very often in an attorney but listen Russ is bio reads this way and I'm only gonna read a portion of it because it's huge and I'm gonna put a link down in the description of the show to his bio so you can be as impressed as I am with him Russ is an accomplished labor and employment attorney and he's the Practice Group director of the labor & Employment Practice at Offutt Kerman Russ provides business counsel to employers on employee matters and is well versed in litigating in both state and federal courts now this is why Russ is so valuable to us Russ tiss doesn't do your documents for you if somebody decides that they're going to sue you Russ goes to court and he fights for you in the states in which he is licensed and also in federal court so without further ado please join me in welcoming Russ Berger to the show Russ welcome thanks for having me dude I've got to be here all right so Russ give us the overview of your role with an entrepreneurial business let's say we're talking now to a business owner who does fifteen million dollars in revenue he's got a sales team that's out there killing it for him every week he may have some administrative employees and he may have two or three operations folks what is it that you do to help those people well I really think I'm a partner for that business owner and I said because if you're big enough that you have employees they're big enough that you have employee problem and and that could be on the positive side as well as on the negative side so when you have employees you have rest there's things that can go wrong there's prompts and you can you could run into if you don't know what those problems are and if you're not prepared them now you're likely you're far more likely to encounter them then all the sobota there's things that you can do to get more out of your employees and I know that some of that on the more of the HR side and the legal side there are things you can do from a legal side to protect yourself to protect your business and to maximize the value of your employees and I know we're going to get into non-competes a little bit but that's one of the big items you know the you know we can work out from a legal side to help a growing business okay Ross so this is something that people come to me with all the time they have a salesperson who is a good salesperson but there are cancer in the workplace they're just not going to be a good fit for the team and the business owner is conflicted from a business standpoint so they tolerate this bad behavior and finally the business owners just had enough and he comes to me and he says Dave how do I get rid of this person what is the right way to address first performance issues and then behavioral issues in the workplace should we have a process in place to handle these things yeah absolutely and you know sometimes depending on what the behavior is it might be a progressive discipline plan on the other hand you know if it's just insubordination maybe maybe it's a little bit more direct but you know basically the way I approach it is you know with the the age-old adage in mind that failing to prepare is preparing to fail and that's really true when it comes to terminations because what ends up happening is you know even if someone's an at-will employee which means you can Theory hire fire for any reason at any time even if they're in an employee the problem exists when you know you haven't been disciplining men haven't been addressing any of the performance issues or the behavioral issues you can finally have an offer you decide to terminate them and all the while they've been getting you know good scores their performance evaluation or at least adequate sufficient Spurs and then they say well you must be terminating me because I'm a member of a protected lass or for some improper unlawful reason and when you don't document when you don't engage in some kind of process you leave yourself vulnerable to those claims you don't have the evidence needed prove that I'm not terminating this person because of their membership in a protected class I'm terminating them because they were disrespectful they were insubordinate they were rude to their fellow employees they business are performance wise it's always nice to think and being a litigator I think I think in terms oh if we go to the court and we have to convince a judge or a jury of the reason for our termination you know it it's gonna work a lot better if we have documented evidence so any process we put in place should have that documented evidence should create that document of evidence so that we have it for future use the the other more practical benefit of that because most people you terminate are not going to see you although terminating someone is probably you know it certainly increases the risk of a lawsuit because you get ready your recline you know you don't have a job you're desperate and you're you're sad about it you mentioned progressive discipline and you mentioned a performance improvement plans so the best thing for me to do and you can correct me if I'm wrong we'll do a live case study here I bring my employee in and I say hey Frank listen your sales results for the last three months have been subpar I'd like to see you over the next quarter the next three months get your results up by ten percent here's what I'm going to do to help you I'm going to meet with you once a week and review the basics of the requirements of your role the minimum requirements of your role I'm going to retrain you on the strategies that we discussed when you were first hired the strategies for you to help you sell I'm going to pair you once a month with our best salesperson so that you learn the best practices and then you and I are gonna meet formally at the end of the month to discuss how you did what you need help with if there are any barriers in place that's the performance improvement plan now listen if you don't improve in the next quarter unfortunately I'm going to have to discontinue your employment with us because you're just not meeting the minimum requirements of the position and then you write that down you document that conversation and you should have a witness to to that conversation who's there probably his supervisor or another person in in some leadership position did I get all that right is that how progressive discipline works yeah so well that's the first step and it's putting the first step and obviously progress with this is a thing where you could through the steps relatively quickly if depending on the severity of the conduct so family to meet performance goals is one where you probably would give people some weekly and Dave I mean you did a really good job of laying it out about something referred though that in the HR world that we referred to as desk method des D and basically we did I was listening as you were doing and you hit them number one D you describe the problem so you know here's what you're failing and so the employee understands exactly whether they're falling short e you explain the consequences of that so you know you're not hitting your sales goals you're not paying for yourself you're not helping the company grow you lay all that out you know asked is the solution and so like you said here's what here's our plan and here's the coaching that we're going to give you uses that we're going to give you you know the other part of us is when that is setting the expectations and and so we know we expect your set improved by 10% next month or over the next 30 days or receive a days 90 days whatever the measurement period is and then at the end of that C is call for commitment so you get the employee to buy in on that and pretty much what you did in your example there and oh and then once you finish that you probably want to donek humanity that's use a good idea and like you said depending on the the nature of conversation you know if it's just that it's really a sales management or a performance by the conversation you know maybe you just have the supervisor the manager involved but it never hurts to have a second person there and if it were something that was more of an HR issue like a behavioral issue you'd almost say one higher level supervisor or an HR person in the room when your abs in a conversation and then the progressive part of the discipline is you continue to track that you continue to follow it and you know works a little bit better with you havior all issues then performance issues but if it's behavioral you know your sister isn't going to happen again and we're going to continue to track it and if it happens again you know you're going to be suspected and it happens after that you know you might be you know suspended for a longer period of time and then if it happens again we're going to terminate so the basic premise of progressive discipline is you know the penalty you as an employee is going to be increased as you know as repeated bad behavior occurs and and while I think it's a little bit easier or more obvious in the behavioral context I think it still does apply in the performance context as well you're not suspending someone for performing poorly but you might go from you know a friendly conversation something office to a written performance improvement plan to a 90-day warning determination Russ let's take a step back now and let's talk about non-compete agreements because I have a lot of people who watch us on YouTube listen to the podcast who are sales people and they say to me hey I'm starting a new job and I have this non-compete agreement from a salesperson perspective the employer is always going to try and get the broadest agreement possible but I know from my own personal experience managing salespeople that those broad agreements they're not enforceable so tell me if I'm a salesperson what am I looking for in a reasonable non-compete well step number one would be to determine which state law applies because different states have different laws you know I'll talk about it coming on a general level but depending on your state you can get a different answer and frankly is Ringo fornia you're not subject to non-compete you know that's that's the best the employees salesperson perspective but then you know assuming that it applies you know the law generally has in most places hasn't asked about that says you know it's a non-compete can be enforced today that's reasonable and reasonable is one of those terms and lawyers use it doesn't that means a whole lot in mouthing all at the same time and so it's hard to parse through without knowing all the specifics of a given situation what is reasonable but obviously from a salesperson especially if you you know if you're not coming in cold if you're a valued commodity on the market you do have leverage and negotiating down your non-compete and I think you know that's one of the things that we see negotiated the most in higher level employment agreements because I think it makes sense and we make sure you have an exit plan you want to make sure that you know if this goes south and and it goes off in a way that I not absolve from my requirement to comply with this on compete you know can I go get another job can I still survive you know can I be calm you know if this ends so I think from a mental exercise or a thought exercise you know you oughta ask yourself if I the company and this is going to apply to me can I go do something that will you know allow me to make money be fulfilled and whatever it is it might be interested in doing after this job ends and then give me the specifics a little bit you know Dave you mentioned national non-compete agreements and typically in most places the non-compete agreement is gonna have to be limited in terms of temporal scope which is time and geographic scope sometimes customer lists can be substituted for Geographics though but when we talk about geographic scope we're again implying you know the test of reasonableness and reasonableness is defined by the judge that's here in your case and whether he or she is in a good mood he or she likes employees or employers whether you know he or she you know how to crappie commute into the courthouse that day it depends on the luck things that we can't necessarily predict so you know we try to do our best and leverage these willing to go she ate them as much as possible but but in some cases a national geographical is applicable and you know a good example of that if you're some tech product and you're selling it across the country that makes sense you know I'm I'm here in Baltimore if you're selling you know crabbing appliances and and you know the technology and the products to go out on the bay and catch crabs it's probably not going to make sense to have a national restriction so it's going to be very specific to the type of industry that you're in and whether or not you actually sell your product in all the places the non-compete says you can't compete in after your employment acts fair enough folks if you are just joining us and you've caught this YouTube video in the middle or you're jumping back into the podcast in the middle I'm going to encourage you to do something as a favor to me I want you to hit the subscribe button on YouTube and ring the little notification bell click that notification about there and the reason I want you to do that is because I host a daily show called the Dave Lorenzo daily we release a new video every day at 5 p.m. and I don't want you to miss out so if you subscribe and you click that notification bell you'll be reminded when we release a new video in addition we are going to start doing these interviews live my interview today with Russ is my 20th interview we're eventually going to do these live and I want you to be notified when we do them so you can ask questions of my experts in real time so please hit the red subscribe button click the notification bell I appreciate it and if you're listening on the podcast be sure and go to youtube and subscribe on youtube because there's all kinds of behind the behind-the-scenes stuff that happens here that you miss out on if you don't join us on YouTube all right so Russ last question about non-competes and then really quickly we're not gonna do it justice but I get questions about harassment all the time so I want to ask you about something specific in that area but related to non-competes is my case as an employer stronger if I provide consideration for them not to compete so if I pay them and specifically put in their employment agreement that as consideration for not competing they're going to get a year's salary does that make my case stronger does it make a difference is it just goodwill what does that do to the to the to the you know yeah it makes your case stronger legal perspective and then from the practical perspective as well because if you're going to court and you ask judged put somebody out of a job and to makes someone unemployed you know just don't want to do that but if you can save that same judge yeah judge you shouldn't let this person work but you know they're also gonna get you know an a base salary for the next 12 months not work for the next 12 months it makes it a lot easier for a judge to get over what you're asking the court to do yeah the downside is that that's a financial investment but the way I counsel my clients is that they're making a financial investment in preventing a big big problem they're preventing uh they're preventing a huge fight and they're also buying goodwill among the people that this person is gonna speak to so when the person when you know the person's friends at work come up to them and go oh my god I can't believe he fired you that's crazy you know what are you gonna do you know you're not gonna be able to compete everybody's employment agreement in the real world I know this is probably not true but in theory everybody's employment agreements should be the same they know that this person's getting a certain amount of money not to compete everybody views that as more fair than just being kicked to the curb everything not just the judge but the people who are left in the workplace so in that regard you're buying goodwill with that both in the beginning when people sign the employment agreement and when you let go the person who everybody knows should have been let go probably months ago when you let them go they're like well it's not like they're not gonna be able to eat for six months or for a year they're gonna get paid so they should be able to find another job in in that period of time all right last the last thing I want to touch on because I get a lot of questions on this all the time explain to us and we don't have time folks I know I'm gonna get a million questions about this and I welcome those questions will have Russ back on in the future he'll be our our employment law correspondent here but I get a lot of questions about the difference between quid pro quo sexual harassment or harassment and third-party harassment and particularly I'm amazed that sophisticated business people don't understand how bad third-party harassment is and how and the liability that they're exposed to so do us a favor and give us the everyday you know person explanation for both quid pro quo and third-party harassment so that everybody understands that this stuff is not acceptable in any workplace and you're exposing yourself to huge liability if you mess around with it sure so so I'd probably break it down into three parts number one it is harassment that that you're subjected to as a condition of your employment which means you come to work you're subjected to the behavior whether it's you know a boss that harasses a staff member or somebody who makes a comment every time you walk past as a hurt desk it just becomes a condition of employment and submission to the conduct is becomes part of what's expected to you of the employee in that situation so for example you know you see it a lot with you know a lot of the news stories that came out of the meet to movement it is you know people were consenting in the sense that you know from a legal sense with sexual assault crimes they were consenting to the the conduct but they weren't willful and willful is the standard from a sexual harassment gender discrimination legal claim standpoint so you know there's a big difference between you know the meet you conduct in some examples I gave about somebody making it common in the workplace but you know the main point is that especially when you have fluctuating power dynamics in a workplace if you have someone who's got authority or supervisory responsibilities and they empower kind of their behavior and they make the condition someone else's employment be subjected to their bad behavior you know that can create liability for a conference the second category is the more traditional quid pro quo it is you know if you want to promotion if you want to stay employed if you want to you know go forward here at this company you are going to agree to my sexual advances so that's a pretty straightforward definition and then the third category is what I would call hostile work environment work environment means severe and pervasive ing to again a reasonable person standard that makes working in the workplace intolerant and so sometimes you know the severity in the pervasiveness can be on one of a sliding scale so if there's a sexual assault that takes place it doesn't have to be pervasive in the sense that it goes on for months and months it's severe enough that they call offense a hostile work environment whereas certain comments sunberg place might need to you know if you just made one bad note that you know you thought you were being funny or you're really being offensive that can get you in trouble but doing it one time probably isn't going to get you sued they do it five times or ten times very well met so and not that one time is okay because it isn't and creates a whole bunch of other problems in the workplace but you know but it's probably not you know it's obviously not the same thing from a liability risk standpoint as some of the other bad conduct like the conduct we've heard a lot about in the me to move so those are those are the three main categories and you know again it's weak a lot of time litigating and advising and counseling through a work environment claims because the first two categories are pretty obvious they're pretty ugly wrong it's pretty obviously shouldn't happen and the council when those things I have is pretty easy I mean typically if it's you know egregious enough which it often it if I are the person and who's committing the conduct and you try to do everything you can to do right by the the victim of the conduct hostile work environment so look you know can be your into more of a gray area and you know we spend a lot of time litigating over which the gray area a certain conduct might be on so yeah the advice I usually give to business owners and the managers is you know you shouldn't be the the arbiter of what's unlawful and what's not if anything's up you know and your your goal should be to have the alarm bells go off for your managers and when the alarm bells go off you get HR involved you get lead counsel involved and you come up with a plan for working through the problem because actually the hostile work environment context sometimes the solution might be counseling sometimes the solution might be suspension sometimes the solution might be termination its we're going to be fact-specific and as we alluded to earlier with the discussion of progressive the swing you know if it's if it's you know not severe or not extremely severe like I said the solution might be counseling but skip a couple stops and go right determination if it's you know egregious sexual all all right well I was that was a really good explanation in a in a really concise way so I appreciate that folks I want to let you know this is not legal advice legal advice you pay for this is free so you're not getting legal advice here be sure and consult your own attorney before you implement any of the things we've discussed here this interview is designed to help you make better decisions and think about things in a different way and that's why I brought Russ Berger to you today because he's an expert on these topics within the guidelines of federal law and within the guidelines of law in the state of Maryland so please do me a favor and check with your own attorney before you act on any of this information now that I've said that Russ thank you so much you've been just a wealth of information and we really appreciate you being here and I am going to W our official employment correspondent here on the do this selmour show we'll have you back whenever we get a handful of questions on areas of employment law in practice tell me and tell our viewers and our listeners how can they get a hold of you if they have a specific issue they want to discuss whether it's a federal issue or if they want to referral to an attorney in their state or if they're in Maryland and they have a legal issue how can they get ahold of you sure oh thank you for dubbing me the official employment correspondent podcast - happy to fill that role and happy to talk about this news I go a lot longer than a half hour once you get in you roll in all these things but I am like as Dave said the beginning of the show I'm an attorney experiment and you know we've got a mid-atlantic presence I'm in our Baltimore office my phone number is for 102 Oh nine six four nine my email is our burger that's our PR ger and office mancom that's spelled Oh ffs IP hey you are and they an and I'll try to share a lot of content through my LinkedIn channels as well and and they said in the disclaimer you know the main reason we do these things is to push information out and obviously you know we're not solving civic problems when we do this but my main goal is to teach people what they don't know because it's much better to do the work front and to do the counseling work than it is to get caught and litigate and learn the hard way so this is really just you know should be taken of a prompt to ask yourself some questions about your employment practices and you know are you doing enough are you aware of you know some of the challenges that we talked about if you're not doing things to address them you know it's something you probably ought to get out in front that'll do it for another edition to do this sell more show thanks for joining us today special thanks to my new legal correspondent for employment law mr. Russ Berger his information is listed on the screen and you can see it down below in the description of the show it's in the show notes if you're listening as a podcast it's on my website if you are watching this video on my website and if you're watching this on youtube its down in the description in the YouTube box you can reach out to us whether you need a lawyer for labor and employment issues or any issue in New York Philadelphia Maryland Virginia down south to north carolina really if you need a little air anywhere on the East Coast give R Us a call talk about your issue with Russ if he can help you he will if he can't he's going to connect you with somebody who can he's that good a guy until next time I'm Dave Lorenzo and here's hoping you do this and sell more you