Episode Transcript
[00:00:00] Speaker A: Welcome to Legal talk. I'm John Mitchell. And today we're uncovering the legal insights and strategies that help you protect what matters most. You're watching now Media Television.
Well, hello there, everybody. Welcome, welcome, welcome back to Legal talk. I am John Mitchell, host of your show. And boy, oh, boy, do we have a great surprise for you folks today. I've got a very important guest vip. We you can't see this on camera, but we've rolled out the red carpet. And we have with us today Elizabeth Trevonez, attorney extraordinaire. What can I say, Elizabeth? Thank you so much for being with us on the show today. Welcome to you and thanks again for being with us.
[00:00:48] Speaker B: Thank you, John. It's so nice to be here with you this morning. What a great way to start with that welcome introduction. I appreciate you very much.
Happy Friday on the road and some coming to you from my hotel room in San Diego as I'm out and about. But really happy to be here with you this morning.
[00:01:06] Speaker A: Well, beautiful and sunny San Diego. I know it well. And man, oh, man, lucky you.
So anyway, Elizabeth, thanks for being on the show with us. And if you could, this first segment, we're kind of getting, getting to know each other a little bit. Right. So introduce yourself to the audience if you can. What is your name? Okay, state your name and what is your background? Like educational and employment, stuff like that?
[00:01:33] Speaker B: Yeah.
My full name for the record, is Elizabeth Michael Wagner Trifonis. I like to joke that I'm adding names as I go.
I'm originally from the Los Angeles area, grew up there and then made my way to Santa Barbara, UC Santa Barbara for undergrad as a microbiome major.
Graduated with that background and continued my education in the Torrey Pines Research Triangle down in San Diego, working towards my PhD in science and genetics, which was wonderfully interesting but proved to be not quite my personality.
The law school that's down here in San Diego happened to be across from the street, a couple blocks from my apartment.
I started going to law school, roughly what we consider my lunch breaks, while I was still at the lab.
Eventually decided maybe laws for me, maybe patent laws for me, and worked toward that area.
Then just before second year of law school, I went skiing in Jackson Hole, Wyoming, and fell in love with the place. And the moment I graduated law school, I went back to Jackson Hole, Wyoming, and have been there for the last 21 years, skiing and running a law office because I'm bilingual in Spanish and I was working for an immigration attorney here in San Diego a Little bit off and on. I got out to Jackson Hole, Wyoming and learned that there were very, very few Spanish speaking services for individuals and about a 30% population in our community that speaks Spanish and is predominantly immigrant.
20 years ago, mostly first originating generation coming to that first generation. Of course, those families have expanded and continue to grow in our area.
So I started up with a bunch of immigration clients and immigration law and also worked for the public defender's office. I've worked for the public defenders in the state for 21 years as well. In Wyoming we get to do both. So I'm 97.5% full time for the state of Wyoming and then that other 2.5%. I run a law firm with a staff of about seven and we focus on immigration issues and right now a lot of deportation defense. We have good four or five individuals per week detained by ICE and taken out of our area.
And so we help those families and work with those folks that end up down at the Aurora Detention center and try to get them back home.
That's as quick as a synopsis as I can give you from LA to Santa Barbara to San Diego to Jackson, Wyoming, but back to San Diego right now for the weekend for this capital defense seminar.
[00:04:04] Speaker A: Yeah, yeah, we talked about that a little bit. Man, that is interesting stuff. And I cannot speak to that from personal experience, but like I said, off the recording, man, oh man, that is God's work right there.
You're doing a great thing and you are to be greatly commended for all of that. I can tell you're a person that gives back a lot to the community because those two specialties, immigration and public defending, man, oh man, that is so important for folks out there that need help.
[00:04:39] Speaker B: Yeah. I always tell folks, you know, what you do for the least of these, you do for all of us. Right. To hold space with somebody who has been charged with a death penalty case is a unique conversation right off the bat. And right now I'm finishing one for Rowan Littower. He's a 19 year old. That the case started originally as a death penalty case. Quickly that prosecutor changed it to a life without the possibility of parole case. And we've worked it since then. We'll come up for sentencing for Rowan here, I believe next week on the 19th of February.
Got it. Pl down to a second degree murder case instead of a first degree murder case. And we just keep whittling away. But holding space with a 19 year old and how he's going to navigate the rest of his life in Wyoming, a life sentence is a life sentence. Her know, in other states, often the parole board might say, well, you know, 27 years is enough, 47 years is enough.
But when we get to sentencing in Wyoming, you're going to do your full amount. We have enough, relatively enough bed space for the population that's being housed. So it's exhausting work sometimes, but you know, just keep moving along and doing your best and remembering that you're best under the circumstances and knowing that that's enough is integrity and just keep swimming, as Dory says.
So try to keep a bit of a sense of humor about it if you can along the way so that others can also try to find some joy as they're moving along also.
[00:06:14] Speaker A: So you're up in Wyoming and you're doing some public defendants of immigration work.
That's your main focus.
By the way, I'm duly impressed and, and you know, intimidated by that.
Man, oh man, that great background you had before you even got into law.
What about what got you interested in the law in the first place? I know you said you went to law school on your lunch break. I've never heard that before.
But what's the origin story? Somehow there was a seed planted in Elizabeth's heart. How did that come about?
[00:06:54] Speaker B: You know, it really was a fluke, John. I really thought I'd be in medicine or science and was navigating that direction. So I did all of the GREs and the MCAT exams for entrance and was making those applications. I was lucky enough to be working for a lab here in the Torrey Pines Research triangle back in 1999. And it was interesting. A lab environment is very interesting. The work that people do is, you know, they're so devoted.
And what I like in the lab too is, you know, you're making basically a chocolate cake every day and you follow the recipe and then you make a million chocolate cakes. And then you take all these statistics about that chocolate cake and you make some decisions and some hypotheses about how your cakes are, you know, being created, but it gets to be really redundant.
And I really was down living here in the gas lamp in my law school. California Western School of Law was just three blocks from where my apartment was. And I thought, well, I've taken every other entrance exam and applied to everything else that my law school gave a part time program where you could do three classes per semester instead of five. But then you had to do a summer semester to stay on track. And that seemed to work with my schedule. So I thought, well, maybe, maybe Patent Law. That sounds reasonable, given my background. And I did take the class. I actually got the highest grade that semester. But I've never done a patent and I've never been part of that world. It really was this, it happened to be there. And I started the classes and really enjoyed the concept from going from a science background where chemicals and running PCRs and these things, you put chemicals and things into action and they create things.
That was always fascinating to me. But one of my first law school classes, it became quickly apparent that words accomplished things. And words and writing words and speaking words could accomplish things and, and make mountains move as well. And that for some reason really stuck with me, the ability to.
And I think he was just even talking about the Declaration of Independence, that a letter to somebody, you know, to England all of a sudden made us independent. And the fact that words could have that trajectory and that impact and that power really just stuck with me. I will tell you that in criminal defense cases, in particular, when we're dealing with DNA experts and autopsies, and then I, that science background in my, my noggin is really, I can nerd out and have a lot of fun with the expert on the stand because I know what they're doing, what they're doing. And I'll admit that I'll play this sort of dumb, explain to me what this is kind of role until I can get them where I want them. And then, oh, that's what we've been talking about all along. So that can be really fun for me with the experts. I just have to be careful. I don't leave the jury behind in nerding out with the experts. So that could be fun.
[00:10:02] Speaker A: Man, oh man, that's what. Now listen, so that, that makes me kind of, that kind of leads me into the next question, which are there now.
You've been at this for a while now, not a brand new attorney. So you got any of us that have been at this for a while? We've got some war stories, we got some nuggets of wisdom, some stuff that we can share. So my question for you, we got about three minutes left in the segment, so are there any war stories you can share with us, any standout matters that you've worked on? And what is kind of the one big nugget of wisdom you wish people knew when they walked in your door?
[00:10:44] Speaker B: I think that there's several. And it depends on if you're looking at the immigration side or the criminal side.
I would always say to those representing people who have to deal with bad circumstances, you have information that your client needs and they need it quickly. So if you have bad information, it is your duty to pick up the phone, get them in your office, tell them that bad information, those bad facts, the reality of the situation soon, as soon as you know.
I know often we want to save people or want to not have someone end up with a life sentence.
I can think of the Carolyn Ani case. I truly disagree with the jury on that one.
She's serving a life sentence. But I can tell you when I had bad news for her and for my clients. Generally, you got to pick up the phone and be, be the bigger person, be a big girl, be a big boy. Get that information to your client now so that people can make good decisions. And for people receiving bad information, know that that trust is diligence.
I, I do not take joy in giving my clients bad news. My role is to give them the truth as soon as possible so they can make good decisions with that information.
So hopefully people can understand that. We're not here to tell you what you want to hear as your legal advisors. We're here to tell you what's honestly happening so that you can navigate your next steps appropriately.
[00:12:12] Speaker A: Exactly. The truth shall set you free.
And so I'm going to close out the segment on that.
Everybody out there, thanks for joining us. By the way, the audience, you, you know, take, take these next couple of minutes, get yourself, you know, your hot or cold beverage of choice, get comfortable and we will be right back with the next topic. And we're going to talk about hiring well and understanding the legal rules behind all the hiring and stuff. So got a good stuff coming up. Stick with us. And we'll be right back after these commercial messages.
We'll be right back. We'll be right back with more practical, real world legal guidance. This is Legal Talk on NOW Media Talk Television.
And we're back. I'm John Mitchell and you're watching Legal Talk on NOW Media Television. Let's continue the conversation.
All right, welcome back, everybody. We are here with attorney extraordinaire Elizabeth Trevones up in God's country up in Wyoming doing, doing all the good deeds up there.
And, and the next topic we're talking about here, okay, very important people need to know about this.
We're talking about hiring people. And I know Elizabeth said that she runs a law office, has some employees there, and so she's going to be able to give us some great information, not only from the technical legal standpoint, but also talking a little bit about, you know, from personal experience, because she's absolutely been there and done that. Right.
So, you know, one of the things about hiring people is understanding the legal rules behind doing that. Right. So the problem that we have a lot of, a lot of people out there in the audience are facing is trying to hire employees without fully understanding the employment laws.
And, you know, a lot of times it can feel like that they're doing their best, but they're kind of white knuckle in it. Right. They're just kind of, kind of hoping that. Hoping for the best. Hang on tight. Hope for the best. Right.
Kind of like riding in my grandpa's car back in the day. Right. So this discussion that we're having today is an important one. And we're going to simplify. We're going to talk a little bit about hiring compliance and explain how to get it right up front so that we can reduce our risk, we can reduce lawsuits, penalties, payroll tax exposure, all that good stuff. Right.
So my question for you is, Elizabeth, what are some of the most common legal mistakes that small business owners will make when they are hiring employees?
[00:14:59] Speaker B: Right. And I, with the immigration context, too, I end up advising a lot of employers on how to employ folks. Are we using e verify? How are we doing the 499s? What happens if you get a 499 audit? And how are you keeping those notebooks on your staff and people? And when I started my law practice, 0506, it was just me.
And then eventually somebody needed to start answering the phone because it was ringing too much. And so I hired a high school student to be the receptionist. And you just keep growing from there.
And as you need more people and more help, you find that good help. But I think the first thing for employers to know is you need to, in making your hiring, start having your employment packet, if you will. You know, you're going to have your employment contract for that person and have that template set up, and you're going to have a Form I9 that you need to have filled out. And there are W4s if this is an employee. If you're dealing with an independent contractor, it's a little bit different. You might have an independent contractor agreement and title it that way. You're also then going to have that 1099 designation that you need to put together. And I advise employers to really, however you're going to do it for one employee, do it for all your employees. So you can't sit there and say, well, when Elizabeth gets hired, this is what I'm going to do for her. But, you know, if Jose gets hired, then I'm going to do it differently for him. That's going to get employers into, into trouble.
So when I'm working for employers in particular, my golden rule is how you do anything is how you do everything, and you really need to keep it that way.
And so I think that's the right place to start. Do you have an employee? Do you have an independent contractor? Do you know the difference and why?
Also working with an accountant, when it comes to doing those payroll withholding taxes, I have to say I was very, very lost at that.
And I think there's an IRS tax agent named Ryan Parks somewhere still around who came and visited me in my office. It wasn't my favorite day for him to just walk on in. He was very polite. But I did end up with tax penalties because I had two employees, and I didn't understand that I had to do these withholding taxes and things. I was just trying to get people their permanent resident cards and get out of jail. So really, sitting down and starting to develop a plan, a hiring process, and working with an accountant who can help you understand those payroll pieces would be my best advice. Starting off. And if you do meet Ryan Parks, the IRS agent, know that he'll be very nice to you, but he's not going to let you off the hook. And it can be very costly and very stressful to deal with it after the fact. So come in.
Come in with a start with some good support and help and a good process for how you're hiring each employee every time.
[00:17:58] Speaker A: Great. Well, that is great information.
So we appreciate that. Now, let me, let me pivot just for a moment, because one of the things I'm hearing you saying is you're talking about the importance of consistency and you're talking about documentation.
So that leads me to my next question. How is it that job descriptions offer letters, onboarding paperwork, and all that good stuff?
How does that protect employers? List legally?
[00:18:32] Speaker B: Right. I think it. The more you can do in advance of a problem, the more that you can set up the documentation as far as how you're hiring people, what they were hired to do, at what rate they were hired to do it. If you have a standard employee handbook, those can be helpful. And sometimes, depending on how you structured your handbook, they might not. Be. So talking with a legal representative on what your standard operating procedures are, how you're communicating that to your employees is important, but the documentation really protects an employer later on, if there's A problem. And we're always trying to make sure that our worst case scenario is mitigated. So the worst case scenario is an employee who's being terminated, who's now disgruntled and upset and is going to bring a lawsuit against your company and pulls you into, you know, an argument in a situation that you don't need.
And if they weren't hired fairly, they weren't paid what they should have been paid if their job did not end up matching their description. This ends up giving, you know, the employee this and this disgruntled employee the ability to make life very complicated and difficult. Even if they don't win a lawsuit by the end, you still have to show up to court and deal with it. And you have attorneys fees. And so the idea is, if you keep that documentation early, it's much clearer. What were they hired to do? At what rate?
What were the expectations? If they weren't meeting those expectations, how did you document that they weren't meeting expectations? Did you sit down and have a call with them? Did you have an evaluation process with them?
You know, in really keeping that all the same for each employee? So if you're never going to do evaluations for quality of people's performance, then don't do it for one.
But I do recommend doing them and keeping those evaluations on file and keeping those expectation letters on. Hey, here's your job description, which you were hired at. That's in your contract.
And now we've had these conversations a couple of times on these dates and times that you're not meeting those expectations. And now I'm letting you know that you're on a probationary period before you're being terminated. Keeping that all together is going to save you a lot of trouble in the long run. I would also say to employers, you need to be careful, and I like job descriptions and what your hourly rate or your salary is for your employee. Because failing to pay somebody what you've agreed to pay them can become a human trafficking crime. And human trafficking, where employees can then obtain visas for that is a crime, can be a felony crime in a lot of places. It is in Wyoming.
And just failing to meet the expectation of what that salary is that you agreed to pay and not following through with that can land an employer into some really sticky, I mean, arrest for human trafficking, as you're trying to avoid.
[00:21:31] Speaker A: Right, right. You don't want to be the basis for that person being able to get a T visa or a, or a U visa, none of that good stuff. Right. So keep it consistent.
[00:21:42] Speaker B: A lot, you know, construction companies are what, where we see it a lot in Wyoming, construction companies, cleaning companies, they're subcontracting to these employers and employees. And if the employer is not documenting that this person works cleaning this house or hotel at this rate and something else is happening, you leave yourself open as an employer to have a criminal investigation.
[00:22:08] Speaker A: Right, Right. And so that leads me to the next thing here. Right. We could, we could cover that would be really useful for folks.
Have you found.
Because I think I have. But let me get your input on this. Have you found that kind of. You make a mistake, some form or fashion in the, in the beginning, and that kind of will snowball and create bigger problems down the road? So where do hiring mistakes start to overlap with payroll and tax compliance issues? And how can that kind of snowball into something bigger?
[00:22:44] Speaker B: Right. You know, like Ryan Parks walking into my office, I didn't understand the withholding taxes. I didn't reach out as a lawyer, I didn't reach out as a new business owner to discover what were my requirements. And it became a very expensive problem for me later on.
Right. And if you're not following through with your employees as far as what you've agreed to pay them, you get disgruntled employees that maybe you need to terminate or, you know, it's time for them to move on. You leave yourself open to exposure for either civil lawsuit, claims that you have to deal with, or criminal investigation as well. Those things, if you can get ahead of them, are essential. We say this too, with our clients.
You know, as a business owner, as an employer, as a thoughtful person, when something's not working out. Right. And you can sense that when that employee and I have this happen with clients, I get a client where I just know this is going to be more hassle than it's worth. Get ahead of it. Do the hard decision earlier rather than later. It will save you in the long run to decide this is not an employee that's working out for me and cut them out of the situation. The one that starts as the problem almost always is going to snowball into the bigger problem. And you can, you got to trust that intuition and clean that up sooner rather than later.
[00:24:09] Speaker A: Man, oh man, that is excellent and wonderful advice for everybody out there.
So, Elizabeth, thanks very much for all of that good advice. And can you go ahead and let people know out there in the audience, how can people kind of get in touch with you? Right. Like, what's the best way if they decide they want to get in touch with Elizabeth. How would they do that?
[00:24:32] Speaker B: Yeah, the best way actually is to send me an email at trophonusrephonuslaw so that T R E F O N A S at T R E F O N A s l a w.com and we'll get back to you within a couple of business days.
Obviously, if someone is detained by ice, Immigration Customs Enforcement, that we consider an emergency, please flag us for that. Give us a call, 307-203-9019. And please leave us a voicemail. We have a lot of calls that, you know, we try to pick them up as quickly as possible. But if you leave us a voicemail that someone's been detained and we can represent people throughout the United States and all the detention centers and immigration courts, but let us know that that's going on so we can jump on it immediately.
[00:25:21] Speaker A: Yes, ma'. Am. Sounds great. Well, you heard it here first, folks. Give Trevonis Law a call and they will take great, great care of you.
So we also here at Legal Talk are going to take great care of you right after we get back from these next messages.
We'll be right back. We'll be right back with more practical real world legal guidance. This is Legal Talk on NOW Media Television.
All right, folks. Oh, my goodness. You know, Tempest fugit, time flies when you're having fun and I am having a blast here. I hope you folks out there are having a blast as well. And I hope that you also are kind of getting some good information, right? You something useful for you.
So that's what Elizabeth and I are trying to go for here. Now. Next up, we're going to talk about classification employees versus independent contractors.
That is a topic, it's a subject near and dear to my heart because I know I have defended these kind of cases before the IRS and before the state employment authorities a couple of times, more than a couple of times. Times.
So talking about that, the problem that a lot of people out there are facing, business owners, right. Maybe you're the world's greatest mechanic. Maybe you're a superstar roofer, painter, electrician, whatever it may be, Right. But running a business involves a lot of different facets and some, you know, we can't be experts in everything. I, I myself use this example, right. If I had to, I could change a tire on my car. I could even change the oil if I wanted to do that. But I wouldn't be able to rebuild the engine. I wouldn't be able to swap out the transmission. That is beyond what I can do. And so, like I said, you know, part of the problem that people are facing out there, they hire you hire someone. You know, like Elizabeth said, the phone's ringing too much, right. So you try and hire somebody to come in, help out, kind of take care of that stuff. Okay? So then you run into, when you bring somebody in, you need to classify them. You need to figure out, are they an employee, are they going to get a W2, are they going to get a 1099, are they independent? Independent contractors. Right. And that definition is very important.
So in this topic, what we're doing a bit, we're clarifying the difference between those. We're talking a little bit about the rules and getting it right, getting it wrong. So, Elizabeth, why is worker classification one of the biggest legal risks for a small business?
[00:28:09] Speaker B: Right. The classification, if you miss it in the beginning, then you done the taxes wrong from the beginning. If you miss it from the beginning, then you have not set up the proper audit system that you need for this person.
And really, those withholding taxes. And Ryan Parks, the IRS agent, comes to visit you. So. Right. The difference between an employee and a contractor. And John, this is really your expertise. And if there were lots of issues, right, Just like, I wouldn't change the tire, I would come to you and say, can you help me navigate if this is an employee or if this is a contractor? But what's happening for people is an employee is somebody that the employer supervises and provides the necessary tools for that person to work when those are the two main criteria that are met. That's an employee. A contractor is somebody who you do not supervise. They bring their own skill set to the job that's going to be done, and they bring their own tools. So the easy one is, you know, my receptionist who comes to my office and uses the phone that I've provided and I'm telling her how to do her job and supervising her that way. That's an employee, the person who might be coming to clean the office later that day, who brings their own vacuum and their own tools to clean the office.
And I'm not there. I don't supervise them. They do that on their own. That's going to be an independent contractor distinction. And here's why that's important to employers.
Often when we're working with an undocumented workforce, or if we have an employee or contractor that may not have documentation, an employer is responsible for an employee to verify on a Form I9 that that employee can be employed and whether or not the employer is using the E VERIFY system. I'm not advocate for the E VERIFY system, but if you are using E Verify, you should be using it for everybody that you're. You're filling out that form I9 saying that this person is able to work in the United States lawfully, they have lawful permission to work with an independent contractor. There is not that employer responsibility to verify that ability to work lawfully in the United States. And so a lot of people are trying to make an employee an independent contractor if they're trying to hire that undocumented person.
And that's why you also see a lot of employers subcontracting to other people to take that employment verification off their requirements, off their desk.
So the issue, though, becomes kind of intertwined with, well, if you didn't do it right in the first place, and you've made an employee an employee, and they're not really an independent contractor.
Just you got to stay clear.
And if they come to your space, your place of work, you supervise them and you provide the tools, this is an employee. And now your requirements on your i9 and whether or not this person can work for you becomes distinctly different than an independent contractor.
[00:31:13] Speaker A: So are there any red flags that you could point to that you've seen in real life where there might be people, miscarriage, classified? Because. And I'll narrow this down a little bit, because usually what you see is people who have been classified as an independent contractor when they should be getting a W2. Right? I don't think I've ever seen it go the other way.
So what kind of red flags have you seen out there?
[00:31:44] Speaker B: Right. I think you're right. Most of the folks that I work for, the employers, they've wanted to make someone an independent contractor because it was an undocumented person that they wanted to keep on their workforce and they couldn't fill out the i9 properly, or they noticed that the i9 and an i9 audit was incorrect.
But you're right, you know, when in doubt, I haven't seen somebody as an employee. I haven't seen that be a problem. Actually, they're an independent contractor. You withheld too many taxes and paid the government too much, too much as an employer for an employee. That's definitely the safer classification.
But that issue puts you now as an employer, into having your form I9s in order.
And the US government does I9 audits. And what happens when you get that letter from the Department of Labor, Department of State about, hey, we're getting these mismatches on your Social Security numbers on your i9s. And here's a list that you need to get back to us in this now I9 audit that you're involved in with the US government. So it's red flags. You know, we're trying to hire the people that we need and that we want. They're good for the job if they are an employee, designate them employee. If you're running into a problem with the Form I9, reach out, have that employee maybe reach out to an immigration lawyer and see if they can fix that and come back to you with a properly filled out form I9 so that you're not later dealing with an audit with the US Government on those classifications.
[00:33:14] Speaker A: Right. Now, you and I know that when you're talking about, you know, dealing with government entities, of course, my specialties, the irs.
So we know that there can be some, you know, some penalties involved, you know, stuff like that on the part of the government.
But can you let us know, do you believe that businesses could be exposed to other problems like lawsuits and things? Could that also be a possibility?
[00:33:44] Speaker B: Right. Well, as you know, John, I think that there's that discrimination lawsuit that can come about. If you're only I9 form I9 auditing for certain employees and not others, why are you doing it that way?
If you have an employee who seems to think that, look, for all of your immigrant population, you're really coming down hard on us and making us re certify our i9 or resubmit that, but you're not doing that for your other employees. Civil lawsuits can get expensive for attorney's fees and for punitive damages.
So staying away from that is good advice.
You know, and the other problems, right, as an employer start to just how do you. You trying to anticipate, you know, somebody being upset and hurt feelings and reaching out to the Department of Labor? An employer needs to worry about IRS penalties, civil lawsuits. Are you involved in something that can be looked at as human trafficking in a criminal context where your liberty, your freedom as a person might be at risk?
There's a lot on an employer's plate to consider and I think to maybe narrow it again. Coming back to how you do it, for one, is how you should be doing it for everybody. So seek out that professional guidance to set it up right the first time.
[00:35:06] Speaker A: Right? Professional guidance. That is a very important thing. I say many times to people, it is way cheaper and more convenient for you to hire me for a small consult and get things done right up front rather than to try and fix problems later on down the line. So that's very important, important piece of, piece of advice right there.
Yeah. Okay. So thanks very much for that piece of advice. One last thing, because we got like, one minute left. What corrective actions can business owners take if they realize that a mistake has been made?
[00:35:45] Speaker B: Great. There's a difference between making a mistake and taking steps to fix it and then continuing to perpetuate a mistake. Continuing to perpetuate a mistake might lead you into civil lawsuits and maybe even criminal situations. But here's the thing. If you think you're not doing it right or you just want to be sure you are doing it right, reach out to professional guidance. Find a lawyer who knows how to look at these issues for you. And if you did make a mistake, and now you've learned that with this lawyer and this guidance, take steps to change.
Is reasonable to say, hey, I didn't know when I started, before Ryan Parks came into my office, I didn't know when I started. I had certain requirements. Once I got that information, I changed my ways and I upped my game and I started to do it better.
That's reasonable. And that is, that's not going to be penalized the way. Oh, I continued to do it wrong even though I knew better.
So get the information.
And now that you've talked with a lawyer or an accountant that knows and you take steps to move forward, that's good. That's good business practice. And that will save you from serious penalties in the future.
[00:36:56] Speaker A: Oh, my goodness. That is, you know, that is, those are nuggets of gold right there. You know, be reasonable. Be reasonable. Act in a reasonable, prudent manner. Right. So very important stuff. Well, Elizabeth, thank you very much for all that good information.
Everybody sit tight.
Stay with us. We're going to talk next about managing employees without documentation. As soon as we get back.
We'll be right back. We'll be right back with more practical, real world legal guidance. This is Legal Talk on NOW Media Television.
And we're back. I'm John Mitchell, and you're watching Legal Talk on NOW Media Television. Let's continue the conversation.
Man, oh, man, are we having a great time today. We've got an excellent show. Elizabeth Trevonez, attorney extraordinaire, expert in all things science, medicine, law.
Man, oh, man, this is a real treat today. I really appreciate Elizabeth being on the show with us, gracing us with your wonderful presence. Thank you. Thank you. Thank you. Thank you. So now we are talking a little bit about in this last segment we're going to bring it home for folks and talk about managing employees without documentation. Now, a lot of times the problem facing a lot of folks out there in the audience is managing employees, shall we say, informally. Right. And that often feels like it can feel like it's easier than keeping written records and going through all of the formalities. Right.
So this topic, what we're going to do for the folks out there, we're going to explain a little bit about documentation and how that protects, actually protects the employer during disputes and legal challenges and stuff like that. All right. So why would you say, Elizabeth, that documentation is a form of protection rather than micromanagement for an employer?
[00:39:04] Speaker B: Right. I think we talked earlier in the segment. If you have a job description, an employment contract, the rate that you're paying somebody, it's specific what their job duties are and that's all written down and you know where to find it.
And then having those evaluation pieces with that employee as you're moving forward, and particularly if the employee is not meeting expectations, how you're documenting, how you've discussed that with them, what you've asked them to improve, that will save you lots of steps later on. Because here's what happens if there's a civil lawsuit and you are asked to tell the jury, how did you tell them, this employee, what their expectations were? It's very hard as humans to recall all the dates, times, facts. You know, we're all busy and it tends to blur together. And I can tell you it happens when people are on the stand that it's a very difficult place when you're testifying to, to always have it in your head the right way.
You know, memories are interesting and funny and can make mistakes. And when you're sitting there testifying to try to defend your own business, it kind of flashes in your, it just is, it goes too fast when you can say here, I have this documentation, I have this letter, I have this all put together for all my employees. I can tell you is this date and time. This is what was said. And I know it was said because I wrote it down.
That's going to save you in the long run. Even keeping a simple notebook where you address employee problems as far as if there were complaints and you hand wrote the date, time, what the complaint was and how you handled it, that becomes a custom business document or a document kept in the customs of your business, and that becomes something you can submit as evidence and rely on later on.
[00:40:54] Speaker A: So it all goes back to the federal rules and state rules, I guess of evidence. Right. And I tell people this all the time. Right. If you don't think that the accuracy of your business records is important, just ask Martha Stewart. She may have a story or two to tell about how important it is to make sure that your business records are true and complete and. And accurate. Right. And so that leads me to my next question.
What kind of records, what types of records would you say are super important? What is the meat and bones of employee management?
[00:41:32] Speaker B: Record wise, that employment contract, that 499, those W2s, your 1099s, if you have your independent contractors and those employment contracts.
Complaint. A complaint. Where, how are you dealing with complaints? Where do they make complaints? And how do you address complaints? And how are you documenting that? You're either addressing those customer complaints or your employee complaints.
Right. If you're being told, for example, you have harassment on your job site, how are you documenting how you're being informed of that and what your responses are? And it can be as simple as you take a notebook and lined paper, but that's your custom.
And you do that every time. That's going to hold up in court. You know, for a lot of our businesses, how we're keeping track of our invoices, what's coming in and being paid. Obviously lawyers, we have different requirements on trust accounts. And in our office, we use management software. Anytime we do anything, there is a note about it in a management software with the date, time, how much time we spent for everything.
So it can be, you can make it complicated, but the rule of thumb is, however you're doing it in one employee situation or for one client or customer, you need to maintain that consistency for all of them. And if you get better advice to change your system and up it and up your game, make a note of when that happened, why you got that advice, and why you changed your policy moving forward.
How you do anything is how you do everything in business.
[00:43:06] Speaker A: Right? Right. And so that, you know, kind of makes me think about people have maybe developed some bad habits. They are not all up to date with their documentation.
So how would you say that a lack of documentation might weaken an employer's legal position?
[00:43:29] Speaker B: Well, then you're just testifying from your memory and those get real faulty real fast.
So especially when you're busy.
You know, I've had my law practice for 21 years and can I tell you what I did on day four when something came in? Actually, I can because I use some management software and I don't have that in my memory, but I can look it up and I can tell you that on that day, this is what happened and this is where I was and this is what I did about it.
If you, you know, we're just as business owners and trying to just get through the day, we have so much on our plates.
Write it down, keep a record of it. That way you don't have to have it in your memory. And when you're called on it later on, you can find it and rely on what your documentation was about what happened.
[00:44:17] Speaker A: Well, relying on documentation, that is very important.
So, so one, I guess kind of final question for this segment.
Kind of give folks a recommendation out there, like, what simple documentation habits would you say would be most valuable for business owners to get started with immediately?
[00:44:40] Speaker B: I think we've repeated this and I guess we can talk about documentation, right. And whether someone is lawfully employed or has lawful permission to work and what that looks like. Like and how you're keeping that on your 409s. I tell employers, you know, if an employee brings you documents that look reasonable, that's your obligation is to keep track of those reasonable documents.
Get an employment contract template that you're using for people.
It keeps it pretty standard. Add in arbitration clauses into those employment agreements from the get go that that's required before there's a civil lawsuit.
Keep track of your i9s. Keep track of your W2s. Work with an accountant who keeps that on file as well for you. Make sure you're doing the withholding taxes correctly and write down your complaints.
Write down how you're addressing when something's not meeting expectations and how you're addressing that with your employees.
[00:45:36] Speaker A: Right. Oh, my goodness. So consistency is very important.
The way you treat one is the way you treat everybody.
And you know, keep good documentation because nobody can keep everything in their memory forever. Right. I have trouble telling you if you were to ask me under oath. Right. But tell me, what did you, John, have for lunch last Tuesday?
Man, there's a good chance I might not be able to tell you. Right. So keeping good records, very, very important out there. So I do really thank you for bringing all this good information for the audience out there, for being with us today. Very, very valuable input for everybody.
So please, one more time before we wrap it up for today, let everybody know how can they get in touch with you if they should need to do so?
[00:46:33] Speaker B: Shoot us an email at trophonusrephonuslaw.com, give us a call at 307-203-9019 and leave us a message if we don't answer right away. Give us a chance to get back to you. And, of course, let us know if anyone's in detention or if there's an emergency. Right away.
[00:46:52] Speaker A: Oh, my goodness. Well, like I said, thank you, Elizabeth, so much for being with us.
You brought just excellent. You knocked it out of the park. Excellent information for everybody, and I know. I appreciate it, and I'm sure the folks out there do as well. So thank you very much, and I hope that you have a wonderful rest of your day.
Enjoy San Diego. Sunny San Diego.
[00:47:17] Speaker B: Looks like the sun's coming right on out. Yes.
[00:47:22] Speaker A: Yes, ma'.
[00:47:22] Speaker B: Am.
[00:47:23] Speaker A: Well, take care and be well, and we will talk again soon.
[00:47:28] Speaker B: Thank you, John. Have a wonderful Friday.
[00:47:31] Speaker A: Yes, ma'. Am.
All right, everybody, that is it for today's Legal Talk. Thank you very much for being with us, everybody. We really appreciate it, and we will, you know, we'll see you next time.
