Knowing When It's Time to Talk to an Employment Attorney
Knowing When It's Time to Talk to an Employment Attorney
An employment attorney 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 attorney who can explain both sides' rights and duties.
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 attorney deals with any aspect of employment," says attorney and shareholder Mark Levitt of Allen, Norton and Blue. "That could be discrimination, wage and hour issues, safety issues under the Occupational Safety and Health Act, anything related to employment."
A plaintiff's employment attorney, Levitt explains, can help an employee learn whether their rights have been violated and whether further action would be worthwhile. The attorney will make sure the employee has exhausted internal remedies, such as following employee handbook protocols for reporting harassment or other discrimination. If the problem is on-time pay, overtime, or proper pay classification (non-exempt versus exempt status), the attorney can help the employee navigate the Fair Labor Standards Act (FLSA) to determine if the possibility exists that rights have been violated and help the employee with next steps.
There are a plethora of labor laws an employer could easily violate unknowingly (or willfully), and since there are different employee count and tenure thresholds for different laws, it's helpful to get guidance from an attorney.
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. That doesn't mean the employee needs to use an attorney's services right away. The employee can go directly to the federal Equal Employment Opportunity Commission (EEOC) or state equivalent, for example, if they believe they've been discriminated against.
"If the employee works in a small company and the principal of the company is the involved party, then I would suggest the employee seek advice because the next step would be filing an administrative complaint with the federal or state government," Levitt says. That would be the first step outside the company. "Then, that agency investigates and either determines whether there is sufficient evidence to establish a violation and assists the employee in crafting an appropriate claim or charge."
Even if the agency finds insufficient evidence, the employee still has the right to file a lawsuit. The agency will either help the employee at that point or tell the employee that they should find an attorney. So, an employee would want to seek out an employment attorney to determine what their rights are and whether their situation is worthy of pursuing an actual lawsuit. The reason, Levitt explains, is that the agency findings are not binding and many times not even admissible because agencies do not do exhaustive investigations. "[The agency] will come interview some people," Levitt explains, "but there are no depositions, there is no cross-examination. Even if the employee has a lawyer, the agency investigator does [the investigation] themselves, and the lawyer is not involved."
The US Department of Justice can decide to take a case, but they take a very limited number of cases and only when they are seeking to set some nationwide precedent or when a very large company is involved in rampant discrimination or something equally serious.
Plaintiffs, Levitt notes, have prevailed in lawsuits even when the EEOC found no merit, but employers have also prevailed when the EEOC finds merit, and the employee sues.
What Can Employees Do to Protect Themselves?
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.
What Can Employers Do?
"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.
What About Freelancers?
Freelancers are independent contractors. They are, in effect, their own companies. They are not employees, so they have very limited rights. Outside of states like California and New York, which have some protections for independent contractors, freelancers are only protected by the agreements they negotiate with companies. A company has no duty to hire or rehire a freelancer.
Should you find yourself in need of an employment attorney, make sure to do your due diligence. Martindale Hubbell, a nationwide bar service that rates law firms and lawyers (peer-rated, not purchased), is helpful. And you should also check with your state's bar association to ensure they haven't been involved in any disciplinary matters.