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Do I need an employment lawyer?

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Employment lawyers handle all kinds of disputes related to issues in the workplace. For example, businesses may hire them to handle employee retirement and benefits plans, or to represent them in court. Employees, meanwhile, may need an employment attorney if they suspect their employers have violated their rights at work.

Employment law for 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 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.

Employment lawyers and 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 under 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.

Contacting an attorney

You’ll need to provide evidence to support your case when you contact an attorney. If you receive a warning for poor performance, or are asked to participate in a performance improvement plan, for example, keep those documents and write down all the relevant details as they occur. It’s your responsibility to prove illegal behavior. Without good records, it may come down to your word against your employer's, making it difficult to prove your case.

However, many things you may consider unfair at work are not against the law. There is no federal law requiring breaks, even for meals, although a minority of states require it. The law also does not prohibit general harassment, bullying, or even a hostile work environment unless it is specifically due to your age, sex, race, disability, or other protected status.

Employment lawyers can help both employers and employees navigate the complex laws and regulations that cover work relationships. If you think you might need a lawyer, it's usually a good idea to call one and schedule a consultation.

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