By Lawrence P. Schaefer |
Discussing what I do professionally with friends and family often provokes questions about when employees really need lawyers, and what rights employees actually have in an “at-will” employment relationship. While well-meaning, these questions reflect a common misperception that actual legal rights are rare in most employment relationships. They aren’t, this blog answers these basic questions.
An Employment Lawyer Can Be Helpful Before, During, and After Employment
Many executives, and those in highly skilled professions like medicine, sometimes are asked to enter into formal employment contracts, where many rights in the employment relationship are agreed to between the parties. It is critical to have experienced legal counsel review the proposed terms, or negotiate these terms before the relationship commences. The more clarity and protections provided in these contracts the better, and there is often significant leverage before any offer is accepted to negotiate the most favorable terms possible.
When difficult issue arise during employment, it is equally important to get the advice and counsel of an experienced employment lawyer. This can often be the difference between raising strong or marginal legal claims if a termination subsequently occurs. An experienced lawyer can not only advise an employee effectively through the minefield of progressive discipline, but can assist these employee in raising the appropriate complaints or reports to company leadership, in a manner that can actually preserve the employment relationship. Even if this isn’t possible, these reports can give rise to retaliation claims if not handled effectively by the employer, which can create a strong basis for litigation or successful severance negotiations when and if a termination decision is made. Current employee shouldn’t hesitate to contact a lawyer when difficult issues arise in the workplace.
If you have been terminated before contacting an employment lawyer, it’s not too late, but you often should act promptly. Some legal claims have “statute of limitations” periods (meaning the time you have to file a Complaint) of as short as 690-90 days or six months, and discrimination claims under federal law usually have to be raised within 300 days of the discriminatory act(s), and within one year under Minnesota law. Furthermore, a lawyer can help you navigate through the process of filing for and securing unemployment compensation, although legal counsel isn’t required for that process. Once terminated, a lawyer can be invaluable in helping you understand whether your rights have been violated.
Even if you have been offered a severance payment in connection with a termination, you need an experienced employment lawyer to help you evaluate whether the compensation is reasonable for what is usually a requested release of claims, and to explain the legal jargon usually associated with the documents.
“At-Will” Employees Have Many Rights
At-will employers never hesitate to remind employees of this status, explaining that this means that the employee can be terminated for any reason or no reason at all, supposedly without legal consequence. These frequent statements often terminated confuse employees into believing that they are powerless to challenge this decision. NOTHING COULD BE FARTHER FROM THE TRUTH.
I often describe at-will employment to prospective clients who call me as the “swiss cheese” of legal doctrines. What I mean by that is that there are so many exceptions (i.e. holes) in this doctrine that unfair terminations often do give rise to legal claims. That’s because these claims can arise from three independent sources:
- By statutes (at the federal state or local level) which, among other things, prohibit discrimination (by many protected categories) retaliation (for engaging in protected conduct);
- By common law, which protects employees against defamation, tortious interference with the employment relationship (even the at-will relationship), misrepresentations, or invasion of privacy, among other protections; and
- By contract, which includes not only countersigned, detailed written contracts, but contracts created by oral promises, or quasi-contract claims such as promissory estoppel. Experienced employment lawyers can review the relevant facts of your termination and the events leading up to it and often find strong legal claims to potentially assert on your behalf.
Finding a potential legal claims does not mean that you have to be prepared to launch into protracted public and risky formal litigation. The best employment lawyers will make every effort to present the claim at issue to your former employer through a well-crafted proposal letter, and invite productive settlement negotiations. Even before public litigation, there are often opportunities to file agency complaints (usually referred to as a charge), which are private, and often provide an additional window of opportunity for productive settlement discussions.