Employers: When to Hire an Employment Lawyer

Learn what you can handle on your own, and when to call in an expert.

The employer-employee relationship is subject to many legal requirements and restrictions. At one level, employment is a contractual matter between an employer and each of their employees, or between an employer and a labor union authorized to bargain collectively on behalf of the employees. Employers need to understand their rights and obligations under these contracts.

Federal, state, and local laws also place obligations on employers regarding matters like wages, hours of work, discrimination and harassment, and notification prior to mass layoffs.

An employment lawyer can advise an employer on how to handle a wide variety of workplace legal issues, and can provide representation in legal proceedings should a dispute arise. The largest employers have in-house legal departments that work closely with their human resources departments. Smaller employers usually don't have that luxury; they must hire outside counsel whenever the need arises.

What Do Employment Lawyers Do?

Lawyers often divide the practice of law into two broad categories:

  1. Transactional law consists of negotiating agreements, drafting legal documents, and other functions that don't involve going to court.
  2. Litigation means representing clients in judicial proceedings, including civil lawsuits, criminal defense, and appeals. This is the type of law most often portrayed in television and movies.

Employment lawyers can be either transactional lawyers or litigators, or both. Some employment lawyers focus on drafting contracts and other documents, and advising employers on legal matters that don't directly involve lawsuits. Employment lawyers may also focus on litigation, gaining expertise in different types of disputes. Employment litigators might exclusively represent employers or employees, but not always.

When Should I Hire an Employment Lawyer?

Finding the best employment lawyer for you will depend on why you need legal representation. Sometimes an employer needs an employment lawyer to help them avoid future legal problems, such as by ensuring that their employment contracts and policies comply with all applicable laws. An employment lawyer often becomes necessary when a dispute arises with a current or former employee.

Setting up Employment Policies

Employers should retain an employment lawyer to help them develop employment policies. Ideally, this would occur before the employer has hired any regular employees. An employment lawyer can draft employment contracts and advise the employer on the policies and practices they need.

They can also create an employee handbook containing the employer’s policies and other important information that employees will need. Employers can also hire an employment lawyer—preferably the same one—to review their policies and contracts periodically and advise them on any changes in the law.

Providing Representation in Collective Bargaining Negotiations

The federal National Labor Relations Act governs the conduct of both employers and unions when they negotiate collective bargaining agreements. This statute prohibits employers from interfering with efforts by employees to organize or join a union. It prohibits unions from coercing or pressuring employees into joining a union. Employers need legal representation to make sure they are complying with the law, and to advocate for their interests in negotiations.

Advising on Hiring, Firing, and Other Employment Decisions

Most U.S. states have “at-will employment” laws, meaning that employers can fire employees for any reason, or for no reason at all, as long as it doesn't violate the law. Laws against employment discrimination prohibit firing employees because of factors like race, sex, religion, or disability. At the federal level, these laws include:

  • Title VII of the Civil Rights Act of 1964
  • The Americans with Disabilities Act
  • The Age Discrimination in Employment Act, and
  • The Genetic Information Nondiscrimination Act.

These laws also prohibit discrimination in hiring, promotions, assignment of job duties, and other features of employment based on protected categories. Most states have their own antidiscrimination laws that provide even greater protection.

Laws like the Fair Labor Standards Act establish a minimum wage and require employers to pay overtime to employees if they work more than 40 hours in a week. Again, many states have wage and hour laws that impose further obligations on employers.

Employment lawyers can advise their clients on how to approach these issues so that they don't unwittingly break the law.

Defending Against an Employee Complaint or Lawsuit

Employees and former employees have several options for asserting claims for alleged discrimination, harassment, violations of wage and hour laws, and other matters. They can file an administrative complaint with the Equal Employment Opportunity Commission, the Wage and Hour Division of the U.S. Department of Labor, or other federal or state agencies. Depending on the type of claim, they may be able to file a lawsuit in state or federal court.

An employment litigator can advise an employer of their rights in the administrative or judicial processes, and can represent the employer in court proceedings and settlement negotiations.

Advising on Establishing or Modifying Employment Benefits

Federal law does not require employers to provide any particular employee benefits. If an employer decides to provide certain benefits to their employees, the Employee Retirement Income Security Act (ERISA) regulates how they must administer those benefits. This federal statute applies to:

  • retirement benefits, such as participation an IRA or 401(k) plan; and
  • health benefits, including group health insurance plans.

Congress has required many employers to provide sick leave to their employees as a result of the COVID-19 pandemic, but those provisions expire at the end of 2020. This is currently the only federal legislation regarding paid sick leave. The Family and Medical Leave Act (FMLA) and many state and local laws require employers to provide unpaid leave to eligible employees.

Employment lawyers can help employers set up benefits for their employees. If an employer wants or needs to modify or discontinue certain benefits, an employment lawyer can advise them of how to do so within the law.

Advising You Prior to Layoffs or Furloughs

Employers in most states can fire employees for virtually any non-discriminatory reason. But if an employer is planning on firing many or most of its employees through layoffs or a reduction in force, the federal Worker Adjustment and Retraining Notification (WARN) Act requires them to give advance notice of their intent. Many states have their own WARN laws with similar or more strict notice requirements. Employment lawyers can help their clients prepare for mass layoffs, furloughs, or a reduction in force in compliance with the law and the employer’s contractual obligations.

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If you're an employer and you need advice on an employment matter—or legal representation in an employment dispute—don't hesitate to consult an experienced attorney.

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