How employment lawyers can help employers
As an employer, you can handle many routine matters without legal representation, but there are instances when consulting an attorney makes sense.
Firing an employee
Not every personnel decision carries the potential for a lawsuit, but if you suspect the person you want to fire for misconduct or poor performance might have a complaint against you, an employment lawyer can help minimize your risk. Some cases where you might want to consult a lawyer include:
- The employee is covered by an employment contract.
- The employee is soon to be vested in a stock plan or retirement account.
- The employee is a member of a protected class, such as a pregnant woman, a person with a disability, or a religious minority.
- The employee has access to trade secrets or valuable proprietary information.
- The employee believes the firing is in retaliation for whistleblowing.
- The employee has complained about harassment or discrimination, or filed a complaint against you.
In many cases, it‘s also a good idea to have a lawyer look at any proposed severance packages, especially for high-level employees.
Major decisions
If you’re making decisions that affect a large number of people, such as a mass layoff or a change to your retirement plan, an employment attorney can help you avoid legal problems resulting from the decision.
Employee classification
It's essential to classify positions correctly to avoid facing huge fines, back pay and overtime pay, and legal penalties. A lawyer or law firm can help you identify which positions are exempt versus non-exempt, and whether a work relationship is that of an independent contractor (a non-employee who works on a contract basis) or an employee.
Employee handbooks, policies, and procedures
It's a good idea to have a lawyer review your office policies, procedures, and employee handbooks to make sure you don't violate any employment laws. A lawyer can ensure you meet requirements for wages, overtime, and family medical leave, among others.
Lawsuits and complaints
If one of your employees has filed a harassment or discrimination complaint against you with the Equal Employment Opportunity Commission (EEOC) or other state agency, or if you are the subject of a lawsuit by a disgruntled employee, contact a lawyer immediately.
Even for lesser claims, such as appealing a denial of unemployment or worker's comp benefits, you may still want to consult your lawyer. This is especially true if the employee has their own attorney.
How employment lawyers can help employees
The rights of workers are protected by many different federal and state laws and regulations. An employer who is acting illegally can be sued under a variety of laws:
- The Fair Labor Standards Act (FLSA) covers wages and overtime pay.
- The Occupational Safety and Health Act (OSHA) provides standards for a safe workplace.
- The Employee Retirement Income Security Act (ERISA) protects pensions and other benefits.
- The Family Medical Leave Act (FMLA) ensures 12 weeks of unpaid leave each year for family health issues.
- The EEOC prohibits discrimination by age, sex, disability, race, and religion, among other categories.
While it’s possible to take action against an employer you believe is acting unfairly or illegally, your chances of success are extremely small if you represent yourself (known as filing "pro se"). Employment lawyers specialize in these types of lawsuits and complaints, and can advise you on the best way to resolve your case.
When an attorney is a good idea
Here are some examples of situations where you might want to call an employment attorney:
- You believe that you were not offered a job, or were fired from your current job, due to discrimination.
- You are being sexually harassed at work.
- You need help negotiating a severance package.
- You filed a complaint against your employer with OSHA or the EEOC, and the agency didn't investigate your complaint adequately.
- Your employer is not paying you correctly for your work.
- You were fired after filing a complaint or exposing some illegal activity in the workplace.
- You are being asked to do something you believe is illegal.
- You lost your job after taking time off to care for a sick child or spouse.
- You want to file a lawsuit against your employer in state or federal court.
When an attorney is necessary
If any of the following applies to you, you should contact a lawyer immediately:
- Your employer is suing you or threatening to sue you.
- You've been accused of committing a crime at work.
- You are being asked, or pressured to, sign a contract or agreement you don't fully understand, such as a non-compete, arbitration, or release of claims.
The role of the employment lawyer
If your workplace-related issue involves complex matters such as sexual harassment, age, gender, or race discrimination, or disability from a work-related injury, you’ll need likely need a lawyer to resolve it. An employment lawyer can:
- Evaluate the strength of your case and help you understand the outcomes you might expect
- Advise you whether to negotiate a settlement or litigate your complaint in court
- Defend you against any counterclaims made against you by your employer
- Keep you advised of any new rulings or laws that might affect your case
- Help you collect any settlement you may be awarded
- Employment cases are often complex and can take many months or even years to resolve, so make sure to choose attorneys you trust and feel comfortable working with over a long period of time.
How to find the right employment lawyer
Most employment cases fall into one of the following broad categories:
When you begin your search for an employment lawyer, start by looking for lawyers who have experience in the category your case falls under. There’s several ways to collect referrals to employment lawyers in your area:
- Contact your local legal aid office
- Browse the Avvo directory
- Reach out to national advocacy organizations such as the NAACP or the National Association of Working Women
You should aim for at least 3 or 4 attorney referrals. Once you’ve done that, your next step is to schedule a consultation with each of the candidates. Many times, someone from the firm will pre-screen you when you call to see if your case would be a good fit for their practice. If so, you will be offered a consultation.
Most law firms offer a free initial consultation, but some employment lawyers will charge you their regular hourly rate for your first meeting.
How to prepare for your consultation
To get the most out of your first meeting, it's a good idea to come prepared. Start by writing a detailed timeline of your complaint. Collect all relevant documents, such as employment contracts, disciplinary warnings, printouts of email communications, and any proposed severance package. If your case involves a work-related injury, be sure to bring relevant medical records and a list of all your medical expenses.
Asking the following questions will help you get a feel for the lawyer's area of practice and the way they’ll work with you:
- What percentage of your practice is focused on handling employment cases like mine?
- How often do you negotiate a pre-trial settlement versus trying a case in court?
- How much of my case will you handle personally and how much will you hand off to associates and paralegals?
Pay attention to the way the lawyer answers your questions. Did they explain things clearly? Were their answers realistic and straightforward? Be wary of lawyers who over-promise or make bold predictions during the initial consultation.
Employment lawyer fees
The lawyer's fee structure is probably the single most important factor in choosing an employment lawyer. There are 2 main ways an attorney can be paid:
- An hourly rate. These vary widely due to a number of variables, but on average, you should expect to pay between $250 and $500 per hour for an employment lawyer.
- A contingency fee. For contingency cases, a general guideline is that your lawyer will keep one-third of any settlement you receive pre-trial, and 40 percent or more of a jury award if the case goes to court.
Keep in mind that in many cases, employment law caps the amount of any award you may receive. Usually you’re limited to lost pay and benefits, plus some amount for pain and suffering. Punitive damages are less common, and often subject to statutory limits. In addition, unlike awards in an accident case, your settlement or award is subject to applicable federal and state taxes.
These tips will give you the basics on how to hire an employment lawyer if you feel you've been unfairly treated at work. Just be sure you thoroughly understand the fee schedule—and that it's clearly spelled out in your contract—before you sign any agreements.
