Employment Litigation: When to Seek Representation?

February 23, 2021

When it comes to employment, the employee has many opportunities to feel as if they have been treated unfairly, even if the employer feels that they have been fair. However,…

When it comes to employment, the employee has many opportunities to feel as if they have been treated unfairly, even if the employer feels that they have been fair. However, not all of these disagreements rise to the level of litigation. Employment laws are continually evolving too, which adds to the complexity and uncertainty many feel when discussing employment litigation.

Employment litigation refers to the circumstances when an employee or former employee takes legal action against an employer due to an issue related to work-based activities. It does not include circumstances in which there was a mere disagreement; the employee or employer must have initiated legal recourse to be considered employment litigation.

Employment litigation can arise from a number of issues, such as:

  • Discrimination
  • Harassment
  • Wage disputes
  • Overtime violations
  • Wrongful termination
  • Benefit access
  • Unfair competition
  • Sharing of trade secrets/confidential information
  • Safety violations
  • Defamation
  • Union disputes
  • Covenants

While this is a broad list of common employment litigation topics, it is not comprehensive. Employees may also consider legal recourse for a variety of other issues.

On top of this list, violation of federal employment regulations can also initiate employment litigation proceedings. Federal laws that employers must adhere to include:

  • Title VII of the Civil Rights Act
  • The Americans with Disabilities Act
  • The Fair Labor Standards Act
  • The Family and Medical Leave Act
  • The Age Discrimination in Employment Act
  • The Dodd-Frank Act
  • The Occupational Safety and Health Act
  • The Genetic Information Nondiscrimination Act
  • The National Labor Relations Act

Employers that work in specific industries may also be subject to additional federal, state, and local regulations.

When is Legal Representation Necessary?

With the dizzying amount of laws and regulations that most employers face, many employment issues can arise. And it can be hard to determine when to seek legal representation or if you need it at all. Some basic guidelines for when representation is a good idea include:

  • Creating Policies: Many employment litigation disputes can be avoided entirely when sound policies and procedures are adopted and followed. Employment attorneys can review these policies to ensure that they are compliant with all applicable laws. They can also provide feedback on ambiguous language that may be open to interpretation and areas where you don’t currently have a policy but need one.
  • Developing Contracts: Similar to creating policies, it’s always a good idea to have an attorney review and provide feedback on any contracts or agreements made with current or prospective employees. They can verify that the contract is legally binding and enforceable. They can also help you to determine when a contract is not necessary or when it could create additional problems down the road.
  • Complaints: Employees often complain about an employer’s actions to an administrative or regulatory body. Employee complaints are some of the most challenging circumstances when determining whether to work with legal representation. These complaints are not as clear-cut as lawsuits, and the punitive repercussions may be wide-ranging (depending upon the nature of the complaint and the type of agency it is). It is generally a good idea to consult with an attorney during these circumstances, even if they do not end up representing your company throughout the complaint process. An employment attorney can help you to understand if the complaint could result in an award of damages. They can also be a great assistance if you expect that the employee’s next step is to file a lawsuit.
  • Lawsuits: Meeting with an attorney should be the first step in the event that an employee (current or former) sues your company. There are certain actions that can be taken to document evidence immediately, which is harder to do after time has elapsed. Additionally, many courts require a legal response quickly after a lawsuit has been filed.

Employment litigation can be complex and often includes legal activities other than a direct lawsuit. Achieving resolution in these disputes requires extensive knowledge of employment laws and regulations, applicable case law, and a sound legal strategy. In many instances, a knowledgeable employment attorney can help the parties settle a suit before a trial through a summary judgment. This scenario often benefits both parties.

While it is good for the complainant to settle a suit and move forward, it’s also great for the employer to quickly resolve legal proceedings. Trials can be costly, and verdicts often award damages when a law has been violated. The damages can also be incredibly expensive, particularly in class action lawsuits. It’s a great idea to contact an experienced employment attorney who can help you avoid potential employment litigation or deal with it once legal proceedings have begun.

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