Employment Law Overview
Employment attorneys can help a company avoid or minimize employment legal exposure. Unlike other legal matters, where lawyers typically are not called in until after a lawsuit has been filed and the defendant needs help defending against the action, an employment attorney can and should play a proactive role in protecting against legal problems. For example, employment attorneys can collaborate with company management to create personnel policies and company handbooks.
Handbooks should be updated on a regular basis to assure that they reflect actual company practices, and that they conform to state and federal law. Certain personnel policies, such as a non-harassment policy, a non-discrimination policy, or a military leave request, are part of such heavily regulated legal areas that attorney oversight for these policies is especially urged. In addition, employment attorneys can aid in creating human resources/administrative forms, such as employment applications, offer letters, employment contracts, performance reviews, leave requests, termination paperwork, etc. Clearly written forms, with appropriate language and disclaimers can help to both manage the expectations of the employees, and to limit a company’s legal exposure.
An employment attorney can help a company appropriately classify employers for overtime purposes. As the physical workplace changes and evolves, employment attorneys can help with issues of workplace safety. Increasingly, employers are interested in having employees agree to limit their competition or other actions after their employment ends. To this end, an employment attorney can draft a non-competition agreement or non-solicitation agreement (an agreement that the former employee will not attempt to lure away other employees). Because these contracts are often the subject of later litigation, and because courts may be wary of overly curtailing an individual’s actions, it is especially important that the agreements be well thought-out, well executed, and tailored to the company’s uses and needs.
Firing or laying off employees can be especially difficult for an employer. In this situation, employment attorneys can advise the employer about how to conduct a termination, including advice on what paperwork must be completed, what forms to give to the employee upon leaving, and whether to include company security personnel in the termination process. Employment attorneys can also discuss with the company whether or not to offer severance pay, and, if so, can draft an appropriate severance agreement. An employment attorney can also oversee a company lay off and ensure that the proper legal notices and requirements are fulfilled.
As the company continues, employment attorneys can apprise management of changing laws and regulations, can update forms as needed, can provide a sounding board for disciplinary actions, and can even provide training sessions for managers or human resources personnel. Many employers find it extremely helpful to have an employment attorney on-call to talk through situations as they arise.
Of course, all of this proactive legal work does not ensure that administrative actions or lawsuits will not occur. In fact, many companies consider legal actions to be simply a cost of business. Employment attorneys can help to organize and manage the company’s defense against such actions. Usually this involves interviewing witnesses, gathering and reviewing paperwork, taking depositions, drafting written discovery, conducting research, writing motions and other court documents, facilitating mediations or settlement negotiations, and taking the case through trial or hearing, and overseeing appeal proceedings.
Thus far we’ve explored how an employment attorney can be of help to a company. Many employment lawyers, however, provide legal services to individual workers. While it is probably less likely that an individual will engage an employment attorney to proactively protect the employee’s interests, employment attorneys can certainly do so. For instance, an employment lawyer could review a job offer, negotiate terms of employment, negotiate stock agreements, etc. Most often, given the cost of legal services, it is highly compensated individuals who use employment attorneys for these proactive purposes.
The more typical individual representation scenario is when an employee feels that he or she has suffered a wrong in the workplace. The individual will then engage legal counsel to represent him or her in the legal action. Depending upon the situation, some lawyers may contact the company to give the company a chance to resolve the situation before filing a lawsuit. In other situations, a lawyer may prefer to simply file the lawsuit without giving the company any advance warning. Common subjects of workplace litigation include sex discrimination, race discrimination, disability discrimination, age discrimination, pregnancy discrimination, and sexual harassment. Legal counsel will act to protect the individual’s interests and will usually seek compensation for the individual.
In addition to a rich body of U.S. federal employment law, individual states have different laws and requirements for their companies and employees. It is beyond the scope of this article to articulate the nuances of different state employment laws. However, it is vitally important that any employment attorney you engage possess a strong knowledge of applicable state and federal employment laws.
For more information on some of the topics discussed above, please click on the following links: http://www.eeoc.gov/
http://www.dol.gov/
http://www.dol.gov/esa/contacts/state_of.htm
http://www.dol.gov/esa/whd/flsa/index.htm
http://www.dol.gov/elaws/
Disclaimer: This article has been prepared for Associated Content for informational purposes only and is not legal advice. Readers should not act upon the information contained in this article without seeking professional legal counsel.
