Employment litigation is one of those areas of the law in which attorneys tend to pick one side and stick with it, representing only employees or employers. Over the course of my career, I have represented both sides in a variety of contexts. My experience has included:
- Preparing employees to transition to a new firm, anticipating that they might be targeted for enforcement of non-compete agreements.
- Representing a company in a bankruptcy adversary proceeding regarding the debtor’s obligations under the WARN Act.
- Representing the Commonwealth in the jury trial of a claim of race discrimination and retaliation brought by a worker in a residential home.
- Representing a law firm in a claim brought by a former employee for severance.
Like contract disputes, employment law is an area in which an ounce of prevention is often worth many pounds of cure. But as in many contract negotiations, it can be difficult to anticipate problems down the line, particularly when all involved are excited about a new hire, or when a small company is first getting off the ground. New employees may be reluctant to negotiate anything other than their salary and benefits, lest they come across as potential malcontents. Startup companies (and even those that have been around long enough for this label to wear off) often believe that they do not have the resources or time to determine how to comply with the myriad of legal obligations they have to their employees, or to put standard practices in place that could reduce their potential exposure. Ironically, small companies are the ones least able to afford such risks, and, in some industries, the ones most likely to have a high rate of employee turnover.
Then there is the emotional factor. In some ways, employment litigation is less like a business dispute, and more like a divorce. People are generally pretty invested in their careers, and may spend as much time (or more!) with their work colleagues as they do with their families. The situations that give rise to separation from a company may involve the sort of wounds to pride and feelings that make it difficult for people to think rationally about their situation or the outcome of the dispute. In other words, both employers and employees who are locked in a dispute tend to be really mad. In those circumstances, litigation is more volatile.
How I Can Help
I have noted elsewhere that people often sign agreements that they do not understand (or have not even read), and that occasionally that may even be a rational thing to do. Employment agreements are not one of those times. Employees should not sign any employment agreement that they do not understand, particularly one that includes post-employment obligations. It is always a good idea to have an experienced attorney read over a proposed contract, even if the employee has their heart set on taking the job. At the very least, you want to go into your new gig with your eyes wide open.
The same is true of employers meeting their legal obligations. My sense is that small business owners resist consulting with counsel because they are afraid of being told how to run their operations. That’s not my style. But I do believe that people should be aware of any risks that they are running, and what it would take to minimize those risks. You might be surprised how easy it can be to put a few procedures in place that can pay substantial dividends when a dispute arises (and, odds are, at some point one will). I am ordinarily reluctant to compare law and medicine (thankfully my job rarely involves the sight of blood), but this is one area in which paying a “well visit” to a “primary care” professional is a very sound practice.
Of course, no amount of planning can prepare either employees or their employers for the unexpected, and disputes do happen. In those circumstances, you need an experienced and skillful litigator to help you assess your case, settle at the right time and amount (if possible), or go the distance (if necessary).