When to talk to an employment attorney

Employment lawyers are board-certified professionals who 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 offering legal representation.

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.

What is an employment attorney?

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.

As a rule, an employment attorney either focuses on one side or the other, but there are some attorneys who will take clients from either side.

What does an employment attorney do?

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:

Gives legal advice

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.

Creates employee handbooks and agreements 

Legal experts in employment issues draft and review employee handbooks and workplace safety policies to ensure they comply with labor laws and regulations.

Negotiates and reviews employment contracts

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.

Advises on independent contractors

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. 

Monitors regulatory compliance

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.

Aids with litigation and administrative proceedings

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).

Provides representation in disputes

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, federal, and labor laws. They have their clients best interests in mind and negotiate in their favor. 

How an employment attorney can help employers

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:

• Writing your employee handbook: You need help ensuring your handbook is compliant.
• Drafting employment agreements: You want employment contracts, non-compete clauses, and severance agreements that comply with legal standards
• Compliance with labor laws: Your business needs to be compliant with employment laws
• Handling employee disputes: You need legal guidance when dealing with issues like workplace discrimination, sexual harassment, and employee rights
• Workplace investigations: You’re investigating allegations of misconduct or harassment within or against your workplace
• Legal representation: You need legal representation during court or board proceedings
• Training management: You’re training managers and your HR department on legal compliance, best practices, and appropriate hiring and firing procedures
• Restructuring your business: You need legal advice during mergers, layoffs, acquisitions, and divestments.
• Protecting information: You need to ensure your business' confidential and proprietary information stays private. 

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 will represent you and help resolve the dispute.

The right time for an employer to contact an employment law attorney

The same goes for employers. 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. 

How an employment attorney can help employees

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:

• Wrongful termination: You believe you were fired without a valid reason, or the reason given violates employee protection laws
• Discrimination: You faced unfair treatment at your workplace due to a protected characteristic, such as your age, disability, religion, race, gender, or sexual orientation
• Harassment: You endured sexual harassment or a hostile work environment
• Wage and hour issues: You dealt with wage and hour issues that violated the Fair Labor Standards Act (FLSA), such as not receiving overtime pay or being denied unpaid meal breaks
• Retaliation: You experienced retaliation, such as a demotion, after whistleblowing or filing a complaint, which are legally protected actions
• Unsafe work conditions: You are concerned your workplace is in violation of the Occupational Safety and Health Act (OSHA)
• Contract disputes: You would like clarification or help with disputing the terms in one of your workplace documents, such as your employment contract or confidentiality agreement
• Leave issues: You faced challenges when taking or returning from legally protected leave. 

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 law 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.

The right time for an employee to contact an employment law attorney

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.

Choosing the right employment lawyer

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:

• Certifications. Did this lawyer receive a law degree and are they board-certified? Have you checked with state and local bar associations?
• Experience. How many years have they been practicing? And have they taken on employment law cases like yours before?
• Areas of expertise. Do they specialize in the area where you need legal guidance?
• Track record. What does their professional history look like? Have they been involved in any ethical violations or disciplinary matters?
• Reputation. What are other lawyers and previous clients saying about their experiences working with this lawyer?
• Personality. Do you feel comfortable working with this lawyer, and can you effectively communicate with each other?
• Legal fees. What is their legal fee structure? Can you afford the fees, and are you aware of any hidden or unexpected charges associated with hiring them?

From reviewing testimonials to assessing their communication style, take the time to ask questions and determine if a lawyer is the right fit for you.

What can employees do to protect themselves?

As an employee, there are a few things you can do to protect yourself and prepare for meeting with an employment lawyer.

Document everything

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.

Know the code

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.

Follow protocol

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.

What can employers do to protect themselves?

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:

Codify rules and culture

"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.

Practice what you preach

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. 

Leave nothing to chance

As a company owner or leader, your actions are visible to everyone. Maintain an open door policy. Ensure that everything you say or do is in an open forum so as to never expose yourself to the risk of hearsay and what may or may not have been said. 

Navigate termination effectively

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.

FAQs

Still have questions regarding employment lawyers? Check out some answers to some frequently asked questions below:

When is the best time to seek advice?

"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. That said, depending on the concern, it's best to first contact the Equal Employment Opportunity Commission (EEOC), so they can investigate the issue and provide additional guidance.

How much does an employment attorney cost?

The cost of hiring an employment attorney will depend on various factors, such as the specific lawyer, 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 $100 to more than $450 an hour, and may require a retainer.

Can freelancers consult an employment lawyer?

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.

Never take on new work without having a robust attorney-drafted independent contractor agreement in place. 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. 

What are the potential outcomes of an employment dispute case?

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, 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.

What can employers and employees do to protect themselves?

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.