When a workplace-related issue arises, you may need an employment attorney for legal advice. But when is it appropriate to reach out?
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by Chloe Packard
Chloe is a San Diego-based writer with over a decade of writing and editing experience. She has partnered with both e...
Legally reviewed by Allison DeSantis, J.D.
Allison is the Director of Product Counsel at LegalZoom, advising and providing leadership to internal teams on the d...
Updated on: September 11, 2024 · 14 min read
Employment lawyers provide legal counsel to employers and employees facing workplace-related issues. They offer a wide range of services, including helping clients navigate state and federal employment law, ensuring businesses are legally compliant, drafting employment contracts, investigating employment disputes, and litigating disputes.
But how do you know when it's a good time to talk to an employment attorney for your own employment-related issues? Below, we unpack everything you need to know about employment attorneys, when to contact them for legal advice, and how to hire the right one for your circumstances.
There are basically two types of employment attorneys. One type focuses on plaintiffs or employees—sometimes referred to as an employment discrimination attorney, employment rights attorney or federal employment attorney—and the other focuses on defendants or employers—also known as management attorneys.
Usually, an employment attorney either focuses on one side or the other, but there are some attorneys who will take clients from either side.
An employment lawyer can help employers and employees work together to reach a resolution in the event of a problem. If your employer-employee relationship becomes strained on account of a dispute involving wages, workplace safety, discrimination, or wrongful termination, it's helpful to know an employment lawyer who can explain both sides' rights and duties.
"An employment attorney deals with any aspect of employment," says attorney and shareholder Mark Levitt of Allen, Norton and Blue. "That could be discrimination, wage equality, hour allotment issues, creating new employee handbooks and codes of conduct, safety issues under the Occupational Safety and Health Act, or just about anything related to employment."
In short, this kind of attorney helps ensure that employers comply with employment laws and that employees are treated fairly. Here is what an employment attorney can do for you:
Employment lawyers provide legal counsel on rights and responsibilities outlined in federal and state employment legislation, such as the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA).
They help employees determine if their rights were violated and decide whether or not to pursue legal action. They also provide legal advice to employers who have claims filed against them and work to investigate, negotiate, and resolve the complaints.
Legal experts in employment issues draft and review employee handbooks and workplace safety policies to ensure they comply with labor laws and regulations.
These lawyers negotiate, write, and review employment contracts and independent contractor agreements to ensure the terms are legal and fair. This involves examining the terms and conditions outlined in severance contracts, non-compete and non-disclosure agreements, and executive compensation packages.
In addition to helping employers draft independent contractor agreements, lawyers help ensure contractors understand how they’re classified and how their contractor rights may differ from employee rights.
Employment lawyers help businesses comply with labor and employment regulations and state and federal employment law, helping prevent non-compliance issues that could otherwise lead to litigation.
Employment lawyers represent employees and employers in court during employment litigation and before employment-related boards and agencies, such as the Equal Employment Opportunity Commission (EEOC), the Department of Labor (DOL), and the National Labor Relations Board (NLRB).
During court proceedings, lawyers represent their clients and work to resolve disputes related to discrimination, harassment, wrongful termination, breaches of contract, wage and hour issues, and other violations of state and federal labor laws. They also negotiate on behalf of their clients’ interests on potential settlement of legal claims.
As an employer, there are times when you might need a consultation with an employment attorney regarding your business or employees. This might involve having your lawyer review your business to ensure it's compliant with state and federal laws and to help prevent legal issues from arising in the first place.
In other cases, you may want a lawyer's advice and counsel when a workplace-related issue arises, like if a former employee claims they experienced wrongful termination or sexual harassment at your workplace. It’s also important to stay in regular contact with a lawyer along the way to ask questions, get clarification, and ensure your business is on the right track.
Some instances when you, as an employer, may want to consult with an employment lawyer include the following:
For a real-world example: Let’s say you want to seek legal advice from your employment lawyer concerning an age discrimination claim a former employee has filed against your business. In this example, your lawyer will review the claim, evaluate the evidence and circumstances, and provide advice on how to mitigate the situation. If the claim should proceed to court, then your lawyer can represent you and help resolve the dispute.
Whether you're an employer looking to create legally compliant documents or facing an employee complaint, it's never too early to seek advice from a lawyer. In fact, as an employer, staying in regular contact with a lawyer can be extremely beneficial, as it can help ensure you're in a good position to address any current or future claims against you.
As an employee, you may find yourself in a situation where you'd like to meet with an attorney to discuss your legal options. An employment attorney can help you navigate the laws, determine if your employee rights were violated, and decide whether further action is necessary. This might involve exhausting internal remedies or ultimately filing a claim against your employer, workplace, or another employee.
The following are some examples of when an employee may turn to an employment attorney for help:
If you're unsure whether your situation warrants legal action, consider scheduling a consultation with an employment lawyer to gain clarity. Let’s look at a real-world example: You think you were unfairly treated at your job due to your sexual orientation. Perhaps your boss overlooked you for a promotion several times despite your excellent performance record and that’s coupled with comments from other employees or superiors about LGBTQ people or you personally.
Because your sexual orientation is a protected class (along with other characteristics, like your national origin, age, gender, and religion) your attorney will review the facts and determine whether promotion discrimination was at play. If there is evidence you did face discrimination, your lawyer will help you take the appropriate legal action and file a workplace discrimination claim.
Another scenario in which you, as an employee, might want to reach out to an employment law firm is if you've faced challenges associated with legally protected leave. For instance, if you were fired after taking medical leave for a serious health condition.
The Family and Medical Leave Act (FMLA) provides job-protected leave for employees with medical conditions that make them unable to work, meaning your workplace cannot terminate you due to your inability to work. Therefore, you would want to schedule a consultation with an employment lawyer to determine if your workplace wrongly terminated you in violation of the FMLA.
We've provided some examples of scenarios that might require an employee to consult with a lawyer, but at what point should an employee reach out?
An employee should seek legal advice when they perceive an issue and no solution is provided by their employer. However, you don't necessarily need to hire a lawyer right off the bat. You can take other avenues, such as contacting the EEOC, which will investigate your claim and help determine if you have sufficient evidence.
Based on the results of the investigation, the EEOC may offer further guidance or recommend that you hire an attorney. However, regardless of the EEOC's findings, you are welcome (and encouraged) to seek legal counsel at any time.
A big part of choosing an appropriate employment lawyer involves doing your homework. Research their professional background to ensure they have the skills, knowledge, significant experience, and expertise to address your situation. Consider seeking out a lawyer with a specialization in your particular area of concern.
So, what should you look for when hiring an employment lawyer? Consider some of the following:
From reviewing testimonials to assessing their communication style, take the time to ask questions and determine if a particular lawyer is the right fit for you.
As an employee, there are a few things you can do to protect yourself and prepare for meeting with an employment lawyer.
Employees who believe they are being discriminated against in some way or are not being paid correctly, etc., should keep accurate records of incidents, including dates and times. Note any witnesses. All of this information will be helpful for the agency or attorney should the employee decide to pursue action. This means capturing emails, screenshots, slack messages, or anything that can help an employee make a case that a violation or breach occurred.
As an employee, your employment terms and rule of engagement are clearly outline in the documents you signed the day (or day before) you become an employee of the firm. It is incredibly important to make sure you are firmly aware of the employee code so that you know when a violation has occurred.
The quickest way to undermine your own case is to not follow the proper standard operating procedures that your firm has in place when a violation occurs. Most companies have a strict mandate in place that a violation must be followed up on by an investigative board. That requires the employee to file a complaint with HR before involving outside sources. If your company has this policy, you'll want to follow it to the letter to ensure you are still entitled to litigation if all other avenues are exhausted.
There are a plethora of labor laws an employer could easily violate unknowingly, and since there are different employee count and tenure thresholds for different laws, it's helpful to get guidance from an attorney. Here are other ways employers can help protect themselves:
"Even very small companies should have an employment handbook," Levitt cautions. "It should have policies and rules in place for equal opportunity employment. The handbook should clearly address how employees can register a complaint with the company or file grievances over discrimination. At that point, every employer has the duty to investigate and determine whether or not there was unlawful conduct."
Many business owners and leaders have failed because they did not treat all employees equally. You muse use the rulebook that you wrote as a strict living document that governs how each employee engages with you, how you engage with them, and how they engage with each other.
As a company owner or leader, your actions are visible to everyone. Maintain an open door policy. Be sure to document your communications so there is no misunderstanding and workplace policies can be referenced with clarity.
If you have to terminate, do it with an employee termination letter drafted by experts. Do not attempt to navigate the hoops of terminating an employee legally by yourself. This can raise risks that you will be unlikely to mitigate in the future.
Still have questions regarding employment lawyers? Check out some answers to some frequently asked questions below:
"As soon as an employee believes something is wrong and no remedy is forthcoming from the employer is the best time to seek out advice," Levitt says. As soon as you experience a workplace-related issue, reach out to a lawyer for advice. In addition, depending on the concern, the Equal Employment Opportunity Commission (EEOC) may be able to help investigate the issue and provide additional guidance.
The cost of hiring an employment attorney will depend on various factors, such as the specific lawyer, the law firm they work for, their level of expertise, and how long they've been in business. Some lawyers work on a contingency basis, which means the outcome of the case determines how much they get paid. For example, if they win the case, they'll earn a percentage of what their client receives, but if they lose, they won't get paid. Meanwhile, other lawyers charge hourly fees, ranging anywhere from around $250 to more than $1,000 an hour, and may require a retainer.
Yes, freelancers can consult with employment lawyers. However, it's important to understand that freelance contractors or independent contractors are self-employed and treated as their own businesses, so they are not considered employees. This means they do not share the same rights as employees under certain employment and labor laws.
It is strongly recommended to make sure you have a robust attorney-drafted independent contractor agreement in place before you take on new work. If these terms or the terms of federal law are violated, an independent contractor should reach out to an attorney. This will help you in the event of nonpayment or even termination without just cause.
Each case is unique, but there are generally a few ways things could go. For one, the court could dismiss the claims and throw out the case before it ever goes to trial. Or both parties could agree to a settlement to resolve the case outside of court. Another potential outcome is that one party is found liable and is responsible for the damages, such as paying compensation, or the party is not found liable and not responsible for any damages.
Employers should create an employee handbook containing policies and rules for equal opportunity employment. The handbook should clearly address how employees can register a complaint with the company or file grievances over discrimination. At that point, every employer has the duty to investigate and determine whether or not there was unlawful conduct, which is where consulting an experienced employer defense attorney can provide invaluable guidance and legal support.
As for employees, they should review their employment documents, familiarize themselves with their employee rights, and keep records of any instances of misconduct. If a workplace incident does occur, they should report it to their employer and request a consultation with the EEOC and/or an attorney.
Diane Faulkner contributed to this story.
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