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 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 type of 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
- Consulting a lawyer in no way obliges you to file a lawsuit or take any further action. Those decisions are yours.
- In most cases it’s advisable not to inform your employer or co-workers that you’re seeking legal advice; that decision should wait until later. This is not a universal rule, but it should be considered the default starting place.
- Initial consultations with employment lawyers may cost you some money, and those fees can vary widely even among very good lawyers.
- 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.
- 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.
- 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 with 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 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 covers some of the most likely agencies:
- 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.
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. While I see that situation changing in the years to come, 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.
For now, at least, 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.