Bad work situations: When do you need an employment lawyer?

Image courtesy of clipart panda.com

Image courtesy of clipartpanda.com

A negative performance review. An oral warning. A rumor that your job isn’t secure. Resistance — or perhaps retaliation? — in response to a concern you’ve raised about possibly unethical or illegal behavior. A gut feeling that you’re being singled out for mistreatment.

These are among the on-the-job signs that raise the question of whether it’s time to seek the advice of a lawyer.

When it comes to workplace situations, many people don’t seek legal advice until it’s too late, usually after a termination. I’d like to take a few minutes to urge that earlier is usually better and to offer suggestions on seeking legal advice. The bulk of what follows is written with American workers in mind, with apologies to many loyal readers who are from other countries.

Earlier is usually better

There is no hard and fast rule on when to seek the advice of an employment lawyer. But generally speaking, earlier is better. Knowing what rights you have and don’t have, and getting some sense of whether your concerns implicate employment protections, can help you assess your options and plan accordingly (legally and otherwise).

One’s instincts can be very useful in cueing a decision to seek legal advice. If it feels bad, it often is worthy of concern. In some cases, very early consultation may be appropriate, such as if you’re asked to sign a very restrictive non-compete agreement or any significant waiver of your employment rights.

In the case of a layoff or termination, legal advice may be helpful in weighing potential severance packages and agreements, even if you’re not contemplating a lawsuit.

Suggestions and points of information

  1. Consulting a lawyer in no way obliges you to file a lawsuit or take any further action. Those decisions are yours.
  2. In most cases it’s advisable not to inform your employer or co-workers that you’re seeking legal advice; that should wait until later, if at all. This is not a universal rule, but it should be considered the default starting place.
  3. Initial consultations with employment lawyers may cost you some money, and those fees can vary widely.
  4. Come prepared for any initial phone or in-person consultation. Have any relevant employment evaluations, employer communications, employee handbooks & policies, etc., available to discuss and share. If possible, prepare a short, chronological, bullet-point summary of major events related to your concerns.
  5. Legal consultations need not be limited to questions about potential litigation. They may also cover eligibility for benefits such as workers’ compensation claims, family and medical leave, and unemployment insurance.
  6. Human resources offices owe their allegiance to the employer, not to the individual employee. Reporting concerns to HR or a similar in-house office does not substitute for obtaining independent legal advice.

How to find an employment lawyer

I strongly advise seeking a lawyer who is experienced and knowledgeable in the field of employment law and who specializes in representing workers. Most attorneys in this field represent either workers (i.e., plaintiffs in potential claims) or management (defense); it is unusual to find those who work on both sides.

While this blog isn’t in a position to offer specific attorney referrals, resources for identifying employment lawyers are readily available. Many of the best plaintiffs’ employment lawyers belong to the National Employment Lawyers Association (NELA), a bar association whose members devote a large share of their practices to representing workers in disputes with current and past employers. The national NELA website offers online legal referral assistance and may be accessed without charge. State-level NELA chapters may have websites that offer similar online referral assistance or contain browsable member listings and links; the Massachusetts chapter is an example of the latter.

Local and state bar associations may also offer attorney referral services.

If you are specifically seeking advice on a workers’ compensation matter, then it’s preferable to consult an attorney who specializes in this sub-field.

Some legal services offices provide advice and representation on employment-related matters. Because of the heavy demand, income eligibility guidelines are pretty stringent, but if you are not employed and have few financial resources, it’s possible that you may qualify for assistance.

Alternatives to consulting a lawyer

Certain public agencies are charged with enforcing employment protections and may be approached by members of the public who have concerns and questions about their rights. They also serve as intake portals for formal claims and complaints. These options may be viable alternatives to hiring a private attorney. The following is not an exhaustive list, but here are some of the most likely agencies for employment-related complaints:

  • The federal Equal Opportunity Employment Commission and its state and local counterparts, responsible for enforcing employment discrimination laws;
  • The federal Occupational Safety and Health Commission and its state counterparts, responsible for enforcing workplace health and safety laws;
  • The federal Department of Labor and its state counterparts, responsible for enforcing minimum wage and overtime laws, as well as other labor standards; and,
  • The federal National Labor Relations Board and its state counterparts, responsible for enforcing laws concerning collective bargaining and concerted worker activities.

Union members

In addition, union members should definitely contact a shop steward or union representative with concerns about potential discipline or termination. The protections offered in collective bargaining agreements typically far exceed those afforded to workers who are not union members.

For those who are experiencing workplace bullying

Many of us in the U.S. are all too aware that we currently have no direct legal protections against workplace bullying and mobbing. I see that situation changing in the years to come. However, for now those who seek legal advice for workplace bullying are highly unlikely to find lawyers who specialize in bullying claims because, well, it’s hard to specialize in a sub-field concerning behaviors that are not yet the subject of direct liability.

Currently, then, obtaining legal relief for bullying and mobbing usually boils down to whether the mistreatment can be sufficiently shoehorned into existing legal protections, such as employment discrimination laws and anti-retaliation provisions of whistleblower laws. In some cases, employee policies or collective bargaining agreements may cover bullying-type behaviors, thus possibly creating contractual protections and obligations. It is helpful to think through these potential legal links before consulting a lawyer.

Just the beginning

Folks, these are hardly the first or last words to be shared on the topic of working with employment lawyers and the decisions involved in contemplating legal action. The full treatment would require a short book, and even then I doubt that all the contingencies could be covered. However, I hope these points are helpful to those who may be seeking legal advice in connection with a work situation.

2 responses

  1. David
    The last two paragraphs express the reality for those seeking legal protection in a bullying situation. Well said and yes there is lots of work to do.
    However it is very important for someone who is in this bad situation to keep all emails, meeting notes and a careful record of the progression of a bully’s actions. Any response you make written and verbal, should be very professional and well written in the spirit of protecting the mission and values of the organization. Seek advice before responding in writing so you are not baited into an error in communication.
    An attorney with superb
    negotiation skills & interest in you may be able to leverage a settlement as the bully may fear exposure- via your careful documentation of dysfunctional behavior and strategic errors to get you out of the company.
    Be aware you may have high legal costs so your settlement target needs to be realistic and realistically achievable. How much documentation do you have to “buy your silence” or avoid damage to the reputation to the bully.

  2. I support early consult is better for several reasons. First, you are building your paper trail that something is really wrong. Second, the earlier you consult someone the more likely you will be able to speak and think clearly about what is happening to you. In advanced stages of bullying, speaking, thinking in a linear way becomes very difficult. Third, if you begin to respond to early bullying with the correct legal language ie intentional infliction of emotional injury instead of bullying (which is not covered for adults under legislation, unless you can prove protected class status as the reason for your being targeted) as you email your bully boss and CC their boss, HR, union etc. They will sit up. Finally, it is my hope that if you seek a consult early, the employment lawyer will be able to explain to you what is happening, give you the language to research this issue, and give you survival strategies such as: only communicate via email, if you have an incident follow up the incident with a factual email to the bully, etc. If more targets knew the language and research behind what was happening to them in the initial stages, their empowerment, could possible avert future psychological injuries by the bully.

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