What Does an Employment Lawyer Do?
Updated : May 2nd, 2022
Employment lawyers are attorneys who represent either the employee or the employer to resolve issues in the workplace. These lawyers specialize in labor law and can help to mediate, educate, litigate, file complaints, or negotiate with insurance adjusters to address common employment concerns. Because most workplaces must stay in compliance with both state and federal law, an employment lawyer should be well versed in all applicable rules and regulations that employers and employees must adhere to.
8 Ways an Employment Lawyer Can Help
- Workers’ Compensation
- Wage Disputes
- Unemployment Appeals
- Employee Termination
- Discrimination Lawsuits
- Whistleblower Protection
- Class Action Lawsuits
- Compliance Education
Employment lawyers can be an indispensable resource in a labor dispute for either side. They will often try to reach an agreement that both parties can agree upon without resorting to legal action. However, there are times when a lawsuit may be necessary to hold an employer or employee accountable for their unlawful actions. In these cases, an attorney can assist with the litigation, settlement, and representation in court if necessary. All workers and employers are protected by labor laws that need to be defended and upheld, and employment lawyers can ensure the rights of everyone in the workplace are protected.
What Is an Employment Law?
Employment law is the legislation that governs the rights and responsibilities between an employer and a worker. These laws cover both state and federal statutes, judicial rulings, and administrative laws, and may include provisions set out in a contract signed by both the employer and employee. Employment lawyers handle a wide variety of issues related to aspects of an employee/employer relationship such as minimum wage regulations, employee benefits, nondiscrimination rules, harassment in the workplace, health care, paid and unpaid leave, unemployment insurance, workers’ compensation, and equal employment hiring practices.
For much of the United States’ early history, there were practically no laws establishing fair labor practices for employers and employees. This led to unsafe conditions, low rates of pay, and rampant child labor. In 1938, the Fair Labor Standards Act (FLSA) was signed into law establishing rules on youth labor setting the minimum age for working at 14, establishing a federal minimum wage, and setting overtime pay at one-and-a-half times the standard rate.
Subsequent laws started popping up over the years that reduced the pay gap between men and women, prohibited discrimination based on race, color, religion, sex, or national origin with Title VII of the Civil Right Act of 1964, decreased workplace hazards, and increased safety with the Occupational Safety and Health Act (OSHA) in 1971, and on up to recent court rulings prohibiting employers from discriminating against employees based on their sexual orientation, gender identity or gender expression.
When To Hire an Employment Lawyer
Each employment attorney will have their own areas of specialty, though all should be knowledgeable in basic labor laws at both the federal level and for the state where the attorney is licensed to practice law. When seeking out legal representation be sure to ask about the lawyer’s specific experience with the issue you’re concerned about.
For example, one may be better equipped to handle a workers’ compensation appeal, while another may have more experience protecting whistleblowers from workplace retaliation. Conversely, if you’re an employer looking for legal representation, you’ll want an attorney with experience in workplace compliance and defending against unwarranted employee claims.
Employment lawyers are also useful if you’re unsure how to address a workplace concern, but know that you’ve been mistreated in some way. They can educate you about your rights, give you an overview of how certain laws may or may not affect you, and advise you on your probability of success if you pursue legal action. They can then help you decide your next steps whether it be mediation, negotiation, litigation, or a more tailored approach to your specific issue.
When an employee is injured on the job during their normal duties, they are entitled to file for workers’ compensation insurance. This benefit is intended to cover the expenses related to the employee’s medical treatment as well as replace their wages if their injury does not allow them to continue to work. In some extreme cases, an accident may cause a worker to become permanently disabled and the employee would then need to seek long-term disability coverage. All states have workers’ comp laws that require nearly all employers to provide this insurance, though specific filing requirements will vary from state to state. Workers’ comp can also protect employers from lawsuits filed by injured employees.
An employment lawyer may be necessary if the employee needs help filing a workers’ comp claim.
- A claim is denied and the employee wishes to appeal the decision
- An employee was terminated or demoted in retaliation for filing a claim
- An employer is trying to dissuade the employee from filing a claim
- An employer feels that an employee is pursuing a false claim
One of the most common reasons you may need an employment attorney is to resolve a “wage and hour” dispute. The FLSA has established a federal minimum wage, overtime pay requirement, and recordkeeping laws, but states can add local regulations on top of these as long as they meet the minimum federal criteria. Currently, the federal minimum wage is $7.25/hour, but 30 states and Washington D.C. have all imposed minimum wages above this federal standard.
When employees are not paid the compensation they have earned or have not received the overtime pay they are due, they may wish to contact an employment attorney to get the money they’re entitled to. Employees may also encounter wage and hour law issues if they’ve been misclassified by their employer. For example, if you’re classified as an independent contractor instead of an employee, your employer is not subject to the same regulations as they would be if you were a regular employee. Unfortunately, some employers will deliberately misclassify workers to work around paying certain taxes or providing benefits.
If you’re fired or laid off from a job through no fault of your own, you may be able to apply for unemployment benefits. Each state sets its own rules for unemployment, but they will all require you to have worked a certain number of hours or have made a certain amount in wages to qualify. In general, you can’t qualify for unemployment if you are responsible for losing your job. If you qualify, you’ll then receive a monthly cash benefit (that typically lasts around 26 weeks), but you must be actively looking for new work while collecting these payments.
In many cases (like when a company is downsizing and employees are laid off), it will be fairly straightforward to apply for and receive unemployment. However, if your situation is more complicated or you’ve already been denied benefits once, you may wish to hire an employment attorney.
For example, many states have provisions that allow you to seek benefits if you’ve quit your job for a “good cause,” such as having to work in a hostile work environment. But, what defines a “good cause” will vary from state to state and will be open to interpretation by employers and courts alike. You may believe your actions are protected under the law, but if your employer disagrees with you you may have to fight for your claim to be approved. An employment attorney can help you file a claim, appeal a UI denial, or represent you in court before an administrative law judge.
If you believe you’ve been wrongfully terminated from your job, you may have the grounds for a claim or lawsuit. Wrongful termination happens when an employer fires you for illegal reasons by violating anti-discrimination law, violating a written or oral agreement or contract, or in retaliation for whistleblowing or accusing them or a fellow employee of sexual harassment.
It’s also illegal for employers to terminate an employee who’s taken advantage of the Family and Medical Leave Act (FMLA). FMLA requires employers to protect the jobs of employees who take leave for qualified family and medical reasons (such as caring for an immediate family member’s medical needs or having a baby), and when the employee returns they must be offered the same or comparable job.
Most jobs in the U.S. are presumed to be “at will,” meaning both the employer and the employee enter into the employment agreement of their own free will, and either party can terminate their employment as long as they do so within the confines of the law. Both parties also have to comply with the terms laid out in an employment contract if one was signed, and these can sometimes limit the causes that could lead to termination. Additionally, an attorney may be limited in what they’re able to do for you if you’ve already signed a severance agreement with your employer. These agreements lay out specific terms when an employee is terminated which usually exchange severance pay for the employee agreeing to release their employer of any claims.
If your employer has fired you unlawfully, an employment attorney can help you investigate your case and seek evidence to prove your employer acted illegally. They will want to see any documentation leading up to your termination like performance reviews, evaluations, complaints, as well as witness statements from people who can testify on your behalf. If your case is successful, you may be able to recover damages for lost wages, benefits, and potentially emotional distress.
Several nondiscrimination laws protect workers in the U.S. The Civil Rights Act of 1964 protects employees from employment discrimination due to race, color, national origin, sex, and religion. In 2020, the Supreme Court expanded this to include protection from gender discrimination and sexual orientation. There’s also the Age Discrimination Act (1967) that protects employees over the age of 40, the Pregnancy Discrimination Act (1978), and the Americans with Disabilities Act (1990) that prohibits discrimination based on disability.
Because the scope of these anti-discrimination laws is so broad, you may need an attorney who’s well versed in all employment laws as well as any state-specific laws that provide added protection. They will also need to determine that the negative actions taken against them are actually discrimination as defined under the law.
A whistleblower is usually an employee (though it doesn’t have to be) who calls out illegal, unsafe, or immoral activity within an organization or business. This typically means that the employee reports these violations or misconduct to a regulatory agency or the media. Historically, whistleblowers can come under heavy pressure from their employer after they expose the wrongdoing, and many can find themselves victims of retaliation in the workplace either overt or covert. This could mean you’ve been harassed, demoted, or fired because of your actions.
There is federal legislation to protect whistleblowers, but this generally covers only public employees, leaving private employees with fewer options for recourse. There are, however, many state laws that offer their own whistleblower protection, and an experienced local employment attorney will be knowledgeable about employee rights in your state.
Class Action Lawsuits
If there are several workers who all wish to file a claim against their employer, they can pursue a class-action lawsuit. These lawsuits can happen for a number of reasons, but all employees must be affected by the same employer action to warrant a class action, and it must be unreasonable for each employee to come forward with their own lawsuit. There is no minimum number of people that you need to bring about a class-action suit, but in general, there should be at least a few dozen.
Class action lawsuits could be due to a wage and hour offense such as an employer failing to compensate their employees with overtime pay or violating equal pay laws. In these cases, it’s common that multiple employees are all facing the same difficulties and it’s not just a single worker who was targeted. Employees can then work together with an employment attorney to pursue compensation as a group. This can be useful since the costs associated with the lawsuit can be split amongst many people and if successful, all members of the class will split the awarded damages.
Employment attorneys can be useful to employers who wish to stay in compliance with both local and federal labor laws as well as any industry-specific regulations. It’s common for businesses and organizations to retain an employment lawyer to consult with about anti-discrimination laws, OSHA requirements, wage and hour laws, and any issues that arise with their workers.
The attorney may issue recommendations on how the business should be set up to remain in compliance as well as help address issues as they come up. They can also defend the employers’ interests against false accusations by their employees or file lawsuits on behalf of the employer against an employee for breaches of service such as violating a non-compete clause or confidentiality agreement.
Employment Lawyer FAQs
What is an unemployment lawyer?
An unemployment lawyer specializes in unemployment-related issues. These lawyers can help you file initial claims with the Equal Employment Opportunity Commission (EEOC), file unemployment appeals, or represent you in an appeals court. This type of lawyer is typically hired after an employee has received their first denial for unemployment. Most people can file the initial claim without issue, but they will need help in the appeals process to gather the relevant evidence to present at your hearing and defend you against any employer challenges to your claim.
What is an employee-rights lawyer?
An employee-rights lawyer specializes in non-union employee rights and typically only represents employees and not employers. These lawyers can represent any kind of employee, from an entry-level, minimum-wage worker up to high-level corporate positions.
If you are performing a job for someone else, you are considered an employee and can seek representation with an employee-rights lawyer. They are also more likely to work for a contingency fee and they should have a proven track record of litigating against large organizations. Many employee-rights attorneys have experience identifying specific legal violations since oftentimes workers won’t know exactly what law was violated, only that they were mistreated in some way by their employer.
If you’re an employer looking for representation, you should search for employment attorneys (or “employer defense” attorneys), but be sure to double check that they take employer-side cases. You’ll want a lawyer with experience in compliance issues as well as defending against lawsuits.
What is a labor lawyer?
A labor lawyer specializes in collective bargaining or group employment-related issues, and primarily negotiates between employers and labor unions. If you have an employment issue but are not part of an organized union, you will want to seek out an employment or employee-rights lawyer instead of a labor lawyer.
Some people will interchange “labor lawyer” and “employment lawyer” with one another, but this should be avoided. Labor lawyers have a very specific skill set that’s needed to address concerns between an employer and a union employee. These laws change drastically depending on what state you’re in. If in doubt, ask the attorney specifically what kind of cases the law firm predominantly handles.
What is a disability attorney?
A disability attorney can sometimes help in an employment dispute if the issue revolves around the employee’s disability such as harassment, discrimination, or failure to make reasonable accommodations. They can also help individuals who are unable to work due to a medical condition or disability who need to apply for government benefits.
The most common of these programs is Social Security Disability Insurance (SSDI) which is available to those whose condition is expected to last at least 12 months or end in death, and that prevents them from performing any work activity. An SSDI attorney can help you apply for benefits, appeal a denial, or represent you in a hearing.
Hiring an Employment Attorney
With most people working for 40+ years during their lifetime, it makes sense that a dispute may eventually come up with your employer. Many of these will be small and you’ll be able to address them on your own, but others may be more consequential and you’ll want professional assistance. When this happens, the best thing to do is contact a local employment attorney.
Employers (especially at larger corporations) have more resources than a single employee and can afford to hire top attorneys to defend their business. This can create an imbalance of power, making it all the more important you have a competent attorney representing you. Employers will typically fight against claims they feel are unfair or will cost them a lot of money, but they also don’t want to risk negative media coverage by going to trial. In many cases, an employment lawyer can help you come to an agreement and settle out of court.
Look for an attorney with experience in both federal and state employment laws – ideally someone who specializes in the issue you’re facing. For example, if you’re having trouble getting unemployment compensation, you’ll want to ask your attorney about their direct experience with the unemployment appeal process.
Some employment attorneys will provide a free case evaluation or free consultation. For others, you may have to pay an initial fee to consult with them about your concerns. Talk with your lawyer about how they will be compensated. Some attorneys will want to be paid hourly, but for many employment-related cases, you can establish a contingency-fee arrangement. With this approach, your lawyer will receive a certain percentage of the damages awarded in your settlement, typically in the 30% to 40% range.
Not every labor dispute requires an attorney, but if you’ve tried to resolve the issue on your own with your employer, or if you see that the problem is affecting more than just yourself, you’re likely best off hiring an employment attorney.
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