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The workplace can be defined by many things. Usually, where a person works isn’t just about the specific thing they do as much as the atmosphere that surrounds the job. Because of the important nature of the workplace, and the significant amount of time spent at a job, there are many laws and regulations set up to ensure a comfortable workplace. There are also many misconceptions about employment law. The importance of ensuring a comfortable workplace along with the confusion surrounding the law sometimes dictates the necessity of an employment lawyer to help individuals navigate their rights.
The employment process is multifaceted. It begins with the initial hiring phase. During the hiring phase, certain measures and precautions can be taken by an employer to ensure they hire the most desirable person for the job. It’s at this step where an applicant will go through the interview process where they may have to answer personal demographic questions (age, sex or race) in addition to questions about their own personal history (previous employment, criminal history, and co-worker relations). It is at this phase, where the applicant usually has the least amount of leverage, where most are unaware of their rights. An applicant may not know whether an employer can conduct a background check, let alone ask specific questions about race and sex in the application process.
After the initial application and hiring phase, there is then the actual employment phase. This is where many issues may arise as what is, and what is not acceptable and it is not always made as clear as you may think. You may think it is common sense that some things should be said or done at work and that there are almost always handbooks and written policies posted that tell you exactly what you are supposed to do. Taking all of that into account, there are still many instances of workplace misbehavior. It can really boil down to the most innocuous statements such as simple compliment on another’s appearance that could lead to an issue.
The last phase, the termination of employment phase, can also be the most trying. This depends on the nature of work, the reasons for the termination and the laws of the specific state you may reside in, but in all cases, there are usually a few protections that apply such as federal laws that protect people against discrimination based on their age, disability or race.
Being aware of your rights, knowing what an employer may or may not do, knowing what an employee may or may not say, are all issues that an employment attorney can help with. Employment attorneys can help advise an employer on what the appropriate action is in certain employment circumstances. An employment attorney can help and employee vindicate their rights during their employment and after their termination.
Focusing on the employee side of the equation, a person could need an employment attorney for several reasons. The most common issues deal with the termination or potential termination of employment. The issues here would be claiming unemployment benefits after termination and discrimination/harassment issues during employment that lead to termination.
Discrimination and harassment claims are mostly features of legislation that proscribe specific processes that determine what behavior is prohibited, how allegations of prohibited are to be handled and then resolved. Discrimination cases boil down to discriminatory behavior directed at a member of a protected class. A protected class is a term for a group of people intended to be protected by the law. For example, people over the age of 40 are protected against age discrimination in the workplace under federal law.
The laws on discrimination specifically detail how a claim is to be handled. First, you need an applicable employer (in this instance an employer with 20 or more employees). The law then requires a discriminatory event that can be as simple as an adverse determination against an employee such as a reduction in hours, responsibility or pay. After such an event has happened to a member of the protected class, that member has a certain time limit to bring a charge of discrimination, or a claim of discrimination against the employer. Keep in mind that there is a specific government administrative agency that handles these claims. They exist at both the state and federal level, so you likely have to deal with both at some point. In fact, you are normally required to go through the state agency first before going to the federal system. The above is a simplified version of the process that involves many protected classes and different factual scenarios. This process is very time sensitive and needs to done with the utmost care, and needs to be done with the consolation of a lawyer.
The unemployment process can be just as cumbersome as filing a claim for discrimination. Unemployment issues usually only arise after an employee has been terminated for cause. Unemployment law provides benefits in the form of weekly pay provided you were terminated at no fault of your own. However, when an employee quits or is fired for cause, that employee is not entitled to these weekly benefits. So the issue here is what is the proper cause or misconduct that led to termination? Was an employee insubordinate? Was the employer creating an untenable work situation requiring the employee to quit? This determination can also require the services of an attorney at the initial hearing stage or appeal process.
On the other side of the issue, employers need to know what the law requires of them. For instance, as a business owner are you required to provide benefits? How often do you need to play employees? How long can an employee’s shift be? Can you fire an employee for any reason you like? Should you have a sexual harassment policy? Knowing the legal processes, policies, and practices that an employer should take will help avoid problems in the future. These are all questions and issues an employment attorney can help with.
The first thing you need to understand with employment law is that it can be very specialized. There are many attorneys well versed in the area, you need only pick one with the experience that you need. For discrimination cases, you will need to find an attorney that has successfully litigated discrimination cases. Discrimination cases are very difficult to prove and take a great advocate along with a good case, in order to be successful. An attorney with a great track record of winning discrimination cases should be a priority. They don’t necessarily need to be high-profile, just cases that were actually litigated or settled to the satisfaction of their clients.
The same holds true for unemployment cases. You will need attorneys that have handled unemployment hearings and unemployment appeals. The more experience the better. There will be many firms that deal solely with employment law so you should have plenty of options.
Determining your needs should be simple. Depending on the situation, it should be clear that you need an employment lawyer. This article only scratches the surface of employment related issues, there are many more such as workers compensation as well as social security and disability benefits are also some areas where you could utilize the service of an attorney.
Most searches begin with an online search. Since employment law is an abundant area for attorneys, looking through some online ranking and review sites like Martindale-Hubbell Law directory and Avvo.com can be very useful. Those sites will allow you to see what other attorneys in the employment law sector think of each other as well as what clients have thought about the attorney’s services.
After you have found some names of attorneys that you are interested in, conduct your own background search. Look up the attorney’s name in your state bar association website. See if there has been any disciplinary action. This information coupled with the opinions you find on Avvo and Martindale-Hubbard should give you a pretty good idea of what attorneys are recommended in the area.
Once you have the names of a couple of attorneys you are picking from, make an appoint to speak with them. There is no problem with speaking with a few different attorneys. Treat it like any other interview process where you get a feel for their personality and style. Be sure to pick the one you fell most comfortable with.