When you start a business, manage a business, or run a Human Resources department, the first thought you have is not whether you need an employment law attorney. You tend to think about the product or service that you are offering and the customers you hope to attract. When you think about employees, you think about hiring and salaries and benefits.
What many business owners, managers, and HR staff don't think about is hiring an employment attorney.
Should you? Just when do employers need an employment attorney? Sometimes? Always? Is it important to have an employment attorney on staff or one on speed dial, or is an employment attorney someone you can wait to call after you've been sued?
No senior managers or professional HR staff people start out with the idea that they're going to be the subject of an employment lawsuit. After all, very few managers have the intention of breaking any laws. The problem is, that employment law is complex.
Crazily complex, actually. Sometimes, you need an employment law attorney, but you don't want to waste your money on high legal fees. Other times, it is critical that you make the investment in an employment attorney.
The average HR employee has an ongoing dialog with an employment attorney for checking those everyday situations where your company needs to play it safe—and employee relations smart. These situations can include the introduction of a new policy, how to inform employees of a benefits change, and what are the latest trends in employment law.
In these everyday situations, managers and owners usually depend on HR to hold the conversation—if they decide to hold a conversation at all. That's okay in these everyday situations with employees.
When Must You Call an Employment Attorney?
But if the situation has the potential to spiral out of control and potentially bring great harm to your organization, you really must call an employment attorney.
In these six situations, you absolutely must call an employment attorney.
To Write Your Handbook
Sure, you can write it yourself with policies that are unique to your company, but you need to have it checked over by an attorney. Why? Because your handbook can inadvertently create contracts with your employees, or have policies that violate the law.
You need to have an employment attorney (not the same lawyer that helps you with corporation matters) check to make sure everything is good. And you need to have the handbook relooked at from time to time—especially when you hit 15 employees (laws like the Americans with Disabilities Act (ADA) kick in when you have 15 employees). When you hit 50 employees (when even more laws apply to your business, especially the Family Medical Leave Act (FMLA), you'll need an employment attorney to understand the implications of the laws.
Companies are available that specialize in writing handbooks, and if you go that route, make sure that an employment attorney who is licensed in your state reviews the completed handbook. Ideally, that person should be on staff, but if not, it's worth the money to hire a local employment attorney to give it the thumbs up.
When Any Government Agency Shows Up at Your Doorstep
Your job is to say, “Please take a seat while I call my employment attorney.”
Then call your employment attorney immediately and do exactly what your attorney tells you to do. Don't ever think, “I have nothing to hide.” You may not, but that does not mean you want to let the EEOC go through your employee personnel files.
Call that employment law attorney. Ideally, you will have a relationship with an employment attorney before the government agency shows up, but if not, still say, “Please take a seat while I call my attorney” and then find an attorney quickly.
When an Employee Complains of Illegal Harassment
Sometimes what happened in an illegal harassment claim is so obviously wrong that it's easy to fix.
If a manager told an employee, “You have to have sex with me, or I'll fire you,” that's pretty easy to handle. You fire the manager.
But, most harassment complaints aren't so straightforward. A lot of it is he said/she said and sometimes a joke is just a joke and sometimes it's evidence of ongoing discrimination. Conduct your investigation and double check with your lawyer to make sure you're in compliance with the law and conducting the investigation correctly.
There are legal pitfalls in any harassment investigation so make sure your policies and procedures are in place before you get a complaint. And those procedures should, of course, be checked by your employment attorney.
When You're Served With Legal Papers
Do not, under any circumstances think that you can handle the situation on your own. Sure, you may be 100 percent correct, but you don't want to make a mistake on the legal side of things, meaning you'll lose the case over a technicality.
Don't respond. Don't think about it. Don't talk to the employee (or former employee) to clear up the “misunderstanding.” Call your attorney right away.
When You Need to Fire an Employee
In all states but Montana, employment is at-will which means that you can fire an employee whenever you want to, as long as you aren't doing it for an illegal reason.
So, you can fire an employee for coming in late three times in a row, but not for getting pregnant.
However, there are so many situations that you must consider and so many possible legal violations, you want to double check with your attorney before firing an employee. For instance, if you fire Bill for coming in late three times in a row, you may think that's a no-brainer decision.
But, what if Molly's boss didn't fire her when she came in late three times in a row? Now, Bill can claim gender discrimination—you're holding him to a different standard than Molly. Always double check. Past practices matter.
When You Need to Lay People Off
Like a firing, layoffs should be straightforward, but you want to make sure that you're in compliance with all laws. For example, the WARN Act requires certain actions from an employer with which you'll want to comply. Different states have different laws regarding layoffs—especially California.
If you're offering severance pay, you'll want to have your employees sign a general release of claims in order to receive that severance. In this document, your employee gives up the right to sue for several reasons or agrees to a non-compete or non-disparagement clauses in exchange for severance.
Your attorney will need to write the release for you. You can tell her what you want to include, but don't be surprised if your attorney tells you that you can't do everything you want to do. The law varies from state to state and you need to stay in compliance.
You may think that it's too expensive to pay an attorney to advise you about issues that you can handle yourself. Attorneys are expensive, but losing lawsuits can cost you even more. Employers need an employment attorney to help them prevent lawsuits and prevent compliance problems.
Establish your relationship with an employment attorney early on, and the relationship and the attorney's ongoing knowledge of your business, corporate culture, and management philosophy will benefit your business in the long run.