Do You Really Need a Employment Lawyer
Posted in Policies & Procedures
Though most employees can take care of employment matters themselves, there are issues that need legal expertise.
Employment laws are modified all the time, and new opinions as to how to interpret these laws are being offered everyday, some even upend what everyone thought the law meant.
You also have to think about the possible (huge) damage awards that a suit filed by a former employee can bring. Still, you don't need to consult a lawyer for every little thing. The key is to figure out which situations require expert legal help and which ones do not.
Below are some the situations in which you should consider hiring a lawyer.
Advice on employment decisions:
Firing employees
If you are worried that an employee might file a lawsuit against you, consult a lawyer before deciding to fire an employee for: performance problems, misconduct or bad behavior. A lawyer can advise you on the legality of firing an employee but also on what actions you can take to minimize the risk of a lawsuit. Nolo.com sites the following situations when you should consider consulting a lawyer to review your decision to fire an employee:
- The worker has a written or oral employment contract that limits your right to fire (for more on employment contracts, see Written Employment Contracts: Pros and Cons).
- The employee may believe that he or she has an implied employment contract limiting your right to fire.
- The employee has benefits, stock options, or retirement money that are due to vest shortly.
- The employee recently filed a complaint or claim with a government agency, or complained to you of illegal or unethical activity in the workplace.
- The employee recently filed a complaint of discrimination or harassment.
- Firing the employee would dramatically change your workplace demographics.
- The employee recently revealed that he or she is in a protected class -- for example, is pregnant, has a disability, or practices a particular religion.
- You are concerned about the worker's potential for violence, vandalism, or sabotage.
- The worker has access to your company's high-level trade secrets or competitive information.
- You are firing the worker for excessive absences, if you are concerned that the absences may be covered by the Family and Medical Leave Act or the Americans with Disabilities Act.
- The employee denies committing the acts for which you are firing him or her, even after an investigation.
- The employee has hired a lawyer to represent him or her in dealing with you.
- You may also want to have a lawyer review employment decisions that will affect a large number of your employees such as: planning to lay off some workers, withdrawing an employee benefit or changing you pension plans. The lawyer can tell you about possible drawbacks and offer you advise on how you could avoid them.
Representation in Legal or Administrative Proceedings:
Lawsuits
Speak with a lawyer immediately if a current of former employee sues you. Employment lawsuits are very complicated. You have to make sure your rights are protected and to make sure evidence that might be used in court are preserved. There is also very little time for you to take action. Many courts require you to file a formal legal response within a few weeks after receiving your notice. Thus, as soon as you do, look for a lawyer right away.
Claims and complaints
If an employee instigates what Nolo.com calls a "kind of adversarial process (short of a lawsuit)," consult your lawyer. These adversarial processes include administrative charges (e.g. of discrimination, retaliation or harassment) with state agencies such as the US Equal Employment Opportunity Commission. Former employees might also appeal the denial of unemployment benefits which, in most states, allows the former employee to request a hearing. You may hire or at least consult a lawyer in these situations, as well as get legal advice on the strength of the claim, how to respond to or how to prepare a response to a charge, how to handle an agency investigation, and how to present evidence at the hearing.
According to Nolo.com, it might be worth hiring a lawyer if the following situations occur:
- The employee raises serious claims that could result in a large award of damages against you.
- Other employees or former employees have made similar allegations, either to the agency or within the workplace.
- The employee has indicated that he or she intends to file a lawsuit (in this situation, the employee may just be using the administrative proceeding to gather evidence to use against you in court).
- The employee has hired a lawyer.
