Is Your Employment Lawyer Readily Accessible?
October 6, 2021 | Barna, Guzy & Steffen, Ltd.
Employment law has never been more complicated than it is right now. Every termination, request for leave, on-the-job injury, interview, offer of employment, and complaint has its own set of landmines for employers. Regardless of company size and number of employees, being an employer and navigating the complex world of employment law has become a real challenge. Employers, and even their skilled human resources teams, sometimes need legal advice and opinions to avoid potential costly mistakes in handling employee issues. Continue reading to learn more about my experience with employment lawyer accessibility.
I represent a wide variety of employers, ranging in size from thousands to only a handful, and everything in between. The one thing they have in common is that if they employ people, they will need sound, practical legal advice at some point. Many employers need advice regularly because of the complexity of the issues while making employment decisions.
Employment advice and consultations are all about controlling the risk while making the best decision for the company. For example, most employees in the State of Minnesota are “employees at will.” This means they can be fired for any reason or no reason at all. But that is not where the analysis ends, because even employees who are “at will” cannot be fired for a discriminatory reason. For example, an employee cannot be fired because of their race, religion, sex (including pregnancy, sexual orientation, or gender identity), national origin, age (40 and older), disability, and genetic information (including family medical history).
When an employer decides to terminate an employee, employment lawyers will question the “reason” even though “at will” employees can be fired for no reason at all. This is an important analysis of the risk. If the employer cannot articulate a nondiscriminatory reason for the termination, more questions need to be asked. Is it acceptable to state the employee is not needed or to say the employee is not a good fit? It may be, but why is the employee not needed or not a good fit? Is it that the employee is the opposite gender of all other employees in that work area or is it that the employee has health conditions that are affecting performance? These are both potential landmines for the employer that pose a potential risk for a lawsuit based on discrimination. If the employer is sued for discrimination and is not able to articulate a legitimate nondiscriminatory reason for the termination, the chances of a payout of past due and future wages as well as attorney’s fees goes up. Furthermore, if the employer articulates a nondiscriminatory reason for the termination after a lawsuit is filed but has no documentation from the time of the termination to support the reason, the proffered reason looks like a pretext or made up after the fact.
A good employment lawyer will ask the right questions and advise on the best course of action to control the risk and advise on the need for significant documentation to support the employment actions. These conversations with clients do not always need to be lengthy or expensive. Many are a half-hour or less. Some are a few text messages to just get confirmation on something, while others require a review of documents and employee interviews.
I have many clients with an open file. They can call, text, or email any time with questions and they only get charged for the time spent on their matter. I have had several clients over the years say they keep my contact information in their cell phones for easy access. Every employer should have easy access to a lawyer whom they know and trust. It does not take long to get some advice concerning complex situations, and it could save the company significant litigation costs in the long run.
In practicing law for over 30 years, I have far too often received a client call after a decision and action have been taken without legal advice, only to find out that the client now has a lawsuit to defend. Of course, I can assist any client with both advice and litigation defense, but it’s best for an employer to pick up the phone before a decision is made and talk through a situation, assess risk, and make the best decision for the company. Many times, it is less expensive than trying to fix a bad decision that is poorly documented, after the fact. Even if a company gets sued, because no one can promise a company will never be sued even if they have had good legal advice, they are more likely to have their defenses well documented and be ready to defend.
My services have been requested regarding terminations, FMLA, ADA compliance, prevention of workplace violence, mental health in the workplace, theft in the workplace, drug use, emotional support animals, and workplace investigations. Sometimes, employers don’t recognize the landmines being presented and as a cautionary action, good employment law advice is necessary to help protect the company.
On occasion, employment questions cannot wait for Monday morning and present as an emergency. Some of these instances include significant workplace injury, violence or threats of violence, auditing of an employer or shut down by a regulatory agency, and discovery of theft.
Law advice is no longer only available 9 to 5, Monday through Friday, as it has been in the past. We make clear to our clients that they must be able to contact their team in such emergencies and our clients have our cell phone and email and we check them often.
Employment issues require consideration and analysis of a complex and multifaceted body of laws covering many aspects of the relationship between employer and employee. Unfortunately, this presents all kinds of opportunities for a company to make expensive mistakes. Access to an experienced employment lawyer is an essential business practice. Contact the professionals at Barna, Guzy & Steffen to discuss any questions or concerns you may have regarding employment law.
Joan Quade is a Shareholder of Barna, Guzy & Steffen
200 Coon Rapids Blvd, Suite 400
Coon Rapids, MN 55433
763-780-8500
This article is intended to provide general information only and should not be used as a substitute for legal counsel or advice