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Employees: When Should You Lawyer Up – Ask #HR Bartender

I recently received this question from an HR Bartender reader:

Hi – I need a labor law attorney who maybe would consider pro bono work or free advice.

My goal here isn’t to call someone out, but maybe this is the wrong question. We would all like free legal advice. Myself included. So, simply asking for free legal services isn’t the answer. Labor attorneys have to make a living, just like the rest of us.

I don’t know this reader’s situation. But I wanted to find a good way to offer something that might help. In my experience, people often ask for “free” legal advice when they are trying to figure out if they need the services of an attorney. So, I thought it might be helpful to answer the question.

lawyer, attorney, employment attorney, legal counsel, labor attorney

I reached out to two individuals who have been very gracious with their time. Employment attorney Donna Ballman has helped us out with reader questions Donna Ballman, Ballman, attorney, labor law, Screw You Guys I'm Going Homein the past. One of my faves is “What To Do If You’re Placed on Suspension”. She’s also the author of the book “Stand Up for Yourself Without Getting Fired: Resolve Workplace Crises Before You Quit, Get Axed or Sue the Bastards”. Ballman outlines several reasons you might need an attorney:

“There are some times in your employment that you may definitely need an attorney. Here are four reasons you might need the services of a lawyer:

  1. Deadlines: Employment laws are a morass of confusing deadlines, prerequisites to filing suit, and requirements you might miss if you try to do it yourself. If you’re thinking about filing suit, you probably want to speak to a lawyer.
  2. Confusing claims: There are some employment laws on the books that you might not be aware of, so you might have a case you don’t know about. And there are some laws you think exist, that don’t. If you think you might have claims, if your termination doesn’t feel right or you think something has happened that’s illegal, you might want to run it past a lawyer.
  3. Being taken seriously: Some employers don’t take you seriously unless you have representation.
  4. Uncomfortable in confrontations: If you’re trying to negotiate your own employment agreement or severance package, many people don’t feel comfortable being in a confrontational situation or advocating for themselves. Sometimes it’s better to have an advocate.

There are times when you absolutely, positively need a lawyer. If any of these happen to you, you should contact a lawyer immediately:

  • Your employer or former lawyer sues or threatens to sue you;
  • You’re being asked to sign an agreement that you don’t fully understand, especially if it’s a non-compete, confidentiality, arbitration, or employment agreement;
  • You’ve been accused of a crime (contact a criminal defense lawyer, not an employment lawyer, immediately).

Here are a few situations when you might want a lawyer

  • If you think your employer or former employer has broken employment laws;
  • If you have been retaliated against for complaining about discrimination or something illegal the employer has done;
  • If you’re not being paid all the wages you’re owed;
  • If you think you’re misclassified as exempt from overtime or as an independent contractor.

And a few circumstances when you probably don’t need a lawyer

  • To make a written complaint of discrimination to the human resources department, as long as you follow the policy;
  • To attend a disciplinary meeting (take good notes, don’t sign anything except a form acknowledging receipt of the discipline, and sign “as to receipt only, rebuttal to follow);
  • To sign documents you understand, like applications, insurance forms, and tax documents.
  • To file a union grievance if you’re a union member (use your union rep – they’re free).”

Now, employees don’t always have to seek out the services of an attorney. In some cases, they might choose to take their concerns directly to a government Teachout, Robert Teachout, Crossroads, pay, pay increaseagency that will investigate the matter on their behalf. Robert Teachout, SHRM-SCP of Crossroads Communications helped us out with a reader question on “Can Employees Refuse a Pay Increase” so I asked him for some insights. Here’s what he said about employees going directly to a government agency:

“When to take an issue to a government agency will differ for each employee, depending on their individual circumstances and personal resilience and values. When a work situation has reached a level where initiating an agency complaint or process is being considered, an employee should approach the decision as objectively as possible, despite the fact that at such a point the situation likely is very emotionally charged.

An employee should have someone they trust to be a sounding board in the decision-making process. It could be a spouse or partner, a good friend, shop steward, or even a counselor in an employee assistance program (EAP). That person can offer the employee other perspectives and viewpoints, provide emotional support, and help the employee sift facts from subjective interpretations. I suggest that an employee ask the following questions to help in making a decision.

  1. How bad is the situation?Not all work situations are equally bad. Try putting the work situation on a “bad” scale of 1 to 10. Is it egregious or blatantly wrong, like sexual assault or life-threatening safety issues? Is it very bad, such as on-going sexual harassment or uncorrected and previously reported safety violations? Or is it an issue like a manager being “mean” or showing favoritism? Has the situation made being a work merely stressful or unbearable?
  1. Does the behavior or action the employer is accused of violate the law?Just because an employer has done something wrong, that doesn’t mean it is unlawful. Favoritism is wrong; racial discrimination is illegal. For that matter, not all discrimination is illegal. If you didn’t get a promotion because the boss doesn’t like your civil war reenactment hobby, that’s not illegal, but discrimination on the basis of race, color, national origin, sex, age, and religion is. A government agency needs some legal hook to be involved, whether that is Title VII, FLSA, OSHA, FMLA or other federal, state, or local employment laws. 
  1. Has the employee made a good-faith effort to remedy the situation through the employer’s policies and procedures?Dealing with a bad work situation is stressful; so is pursuing a claim with a government agency — and it can take a long time. Trying to resolve an issue using the employer’s policies and procedures is always a good idea. Most employers do honestly want to do the right thing, in my experience, even if sometimes they seem to be botching things badly. If the employer’s administrative remedies don’t work, an employer still has the option of filing a government agency claim and the documentation of the employer’s proceeding can provide additional evidence. 
  1. What does the employee want to achieve?An employee should have a clear idea of what he or she wants to accomplish in resolving the issue. An apology? A denied promotion? Monetary damages? Or to correct a systemic problem? Potentially, an agency action could accomplish all of these things, but if what is being sought is relatively small, an employee may be choosing a very large hammer to put in a very small nail. The bigger the stakes, the more appropriate it is to consider governmental involvement.

Considering the answers to the above questions honestly can help an employee to gather relevant information and weigh it with a level of objectivity. The process will help the employee have confidence that their choice — either way — is the right one for them.”

I want to thank Robert and Donna for sharing their experience with us. I honestly believe that no one wants to escalate issues to lawyers and government agencies, but unfortunately, sometimes it has to be done. The answer isn’t seeking free legal advice. It’s getting educated on the right times to use these options.

Speaking of which, it occurred to me as I was writing this post that companies might want the same information. When should a company seek the advice of legal counsel? So, stay tuned for a part two…

Image captured by Sharlyn Lauby while exploring the streets of Boston, MA

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About Mildred Blankson

I am a Human Resource Professional with a Masters Degree in Human Resource Management. I have several years of experience in Human Resources and i hope this blog will be a great resource in helping you find the perfect job or candidate that you seek.

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