How to Hire an Employment Lawyer

So you need to hire an employment lawyer but you don’t know how to get started? This article is for you. 

Hiring a lawyer to guide you through an employment-related dispute can be challenging. Unlike cases involving personal injury matters, there aren’t hundreds of employment lawyers running TV advertisements in an attempt to get you to “Call now!” Quite the opposite is true in fact. 

Due to the complicated statutory nature of employment law practice, there are likely only a small handful of lawyers in even a relatively large city who are Board Certified to represent employees in employment-related disputes. The few who are qualified and have the years’ of experience you should be looking for will likely be extremely busy because there are so few of them. For this reason it is important that you do some research and get your own materials together before you start making calls. 

To get you started, we’ve prepared a handy guide outlining some of the basic steps you need to take. 

Step 1 - Do a little research online. 

Before you pick up the phone and start making calls, pick up your mouse and start making clicks. Good employment lawyers will have a website and/or a blog that will provide you with a lot of quality information about employment law issues. Take a look at what practice areas in which the lawyer claims he or she practices. You don’t want a jack-of-all-trades-master-of-none attorney for your case. You want someone who concentrates the majority of his/her practice on employment law issues. You could also search legal directory avvo.com to help you find local lawyers who represent employees. It isn’t a perfect system but it will give you a good list to start your research.

Step 2 - Check for Board Certification

Lawyers are not required to be Board Certified in employment law to practice it in Texas. Some states don’t even provide for board certifications. But in Texas, the State Bar of Texas does provide Board Certification to those lawyers who practice employment law for a sufficient period of time, provide recommendations from lawyers and judges who they have practiced with and who pass a lengthy examination process. Chris McKinney is Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization. 

Step 3 - Expect to Fill Out a Questionnaire and Pay a Fee for a Consultation

Many firms have developed questionnaires. These are not idle exercises. You must fill them out to help your lawyer understand your case so he can better help you. Plus, filling out these short (usually electronic) forms may save you money. At the McKinney Law Firm, we use a short electronic form as an initial screening tool for the many potential client contacts we get each day. Sometimes, the form lets us know the issue is just a simple question for which we can provide a quick answer. Other times, we can tell that the type of case being described would be better handled by another lawyer who specializes in that specific niche — we can help get that referral set up at no cost. Sometimes the form lets us know that we simply can’t lend any assistance — we can let you know that too, again at no cost. If the form indicates an issue on which we think we can provide meaningful assistance, then we can set up a full, in-person consultation. 

Most attorneys charge a small consultation fee to review employment-related matters. Because employment law is very fact specific, an employment lawyer needs to know all the facts of your case before he or she can commit to representing you. This often takes time. If employment lawyers are not paid something for this, they cannot stay in business.

Step 4 - Prepare for Your Consultation

Once you have a consultation with an employment lawyer scheduled, it is important that you prepare to make the most of the time you will have with the lawyer. Employment lawyers get dozens of contacts per week from potential clients and must be very selective about the cases they take. The initial consultation is your opportunity to make sure the attorney is well informed about the facts of your case. It is also your best chance to show the attorney that you are someone he or she wants to work with over the months and/or years that your matter may be pending on the firm’s docket. 

A few tips:

  • Take the meeting seriously and be prepared — Make sure you have good, clean copies (not originals) of any related documents with you when you arrive. Don’t expect the attorney to be your copy service and don’t leave your originals with the attorney. 
  • Bring a fact chronology — Employment cases are complicated and fact intensive. A lawyer will not be able to tell you whether he can help you unless he knows most of the details of your case. The best way to do this is to bring a simple fact chronology that outlines the factual timeline of your case. A simple “Date — Fact” format will work fine in most cases. If at all possible it should be typed and not hand-written.
  • Be on time — Nothing says that you are not serious about your case like being late to your consultation. An attorney’s time literally is their money. Don’t waste it. 
  • Pay the requested consultation fee on time or have it ready when you walk in the door — If the matter is not important enough for a consultation fee then don’t make the appointment to begin with. But if you do make the appointment, don’t put the lawyer in the position of trying to collect a fee from you at your first meeting. It’s not the way to get off to a good start. 
  • Dress appropriately — How you dress communicates the level of seriousness you give the issue. 
  • Don’t bring unexpected guests — Attorney-client communications are privileged. This privilege can be lost if others sit in on the meeting. While someone else can certainly accompany you to the lawyer’s office, don’t expect them or ask for them to come into the meeting with you unless you cleared it in advance with the attorney. Dealing with this issue at the time of the meeting uses up valuable meeting time while the lawyer tries to assess whether they should be allowed into the meeting or not. Also, keep in mind that the lawyer wants to hear YOUR story and is less interested in your husband/wife, girlfriend/boyfriend or mother’s version of the story.
  • Don’t bring children — I love children. But they should not be brought to your attorney consultation. They are a distraction for you and the attorney and it can sometimes be difficult to discuss sensitive matters in front of them. Get a sitter or ask a friend or family member to watch them for you. 

Following these steps should help you find a well-qualified attorney to handle your employment-related legal matter. 

Can My Employer Dock My Pay If I Am A Salaried Employee?

Answer: Docking Pay From Salaried, Exempt Employees Is Illegal…And Very Common

The Fair Labor Standards Act (FLSA) is the federal law the controls the terms under which employees must be paid overtime. All employees fall into one of two categories “Exempt” or “Non-Exempt”. If an employee is non-exempt, when they reach more than 40 hours in a given work week, they have to be paid at time and a half for any additional hours. If they are non-exempt), they aren’t eligible for overtime. Most people think of non-exempt employees as “hourly” and exempt employees as “salaried”.

As a general rule exempt employees are paid a salary and don’t have to be paid overtime no matter how many hours they work. But there are other rules that come that exempt status. One important one that employers often ignore is the rule against docking pay.

Exempt employees who are late or who need to leave work early – for doctor’s appointment, child care, whatever – cannot have their pay docked for missing a couple of hours of work. If an exempt, salaried employee shows up for work, even if it’s just for 15 minutes, he or she must be paid for the entire day. That’s the rule.

The employer can discipline, fire, or demote the employee. But it cannot dock the employee’s pay.  Importantly, the employer is allowed to dock vacation time and force the employee to use that to cover the hours missed. But the employees pay may never be docked.

So what happens if the employer breaks this rule and docks pay? Well then the employer has just lost the FLSA “exemption” as to that employee. This means the employee is owed overtime for all hours over 40 worked in the last two years plus all overtime worked in the future. This can add up to a substantial amount.

So, long story short is this: If you are paid by salary and your employer docks your pay for being late or missing a few hours of work here or there, you should contact an employment lawyer right away. Your employer is taking advantage of you and breaking the law. You may be owed a substantial amount of overtime pay. 

If you think you may be owed overtime pay, contact us immediately. 

 

What kind of sexual harassment is illegal?

It is unlawful to discriminate or harass a person because of that person's sex. But we often get the question what type of harassment reaches the level of being illegal sexual harassment?

Illegal sexual harassment is any type of sexual behavior that is unwelcome and/or inappropriate for the workplace. Sexual harassment may include verbal harassment, such as dirty jokes or derogatory comments, visual harassment, such as the placement of embarrassing or inappropriate posters, drawings and cartoons and/or physical harassment, such as sexual advances, sexual demands and unwelcome touching.

In the workplace, sexual harassment can come from the business owner, a supervisor, a manager, a foreperson, a co-worker or even a customer. Sexual harassment at a school is also illegal.

Both men and women can be the victims of sexual harassment and both the victim and the harasser can be be the same sex. 

Although the law doesn't prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted). Sexual harassment can include any type of such conduct, including pornography, offensive jokes, sexual bullying, repeated touching, etc.

Learn more.

What is "Employment at Will" and how is it different from "Right to Work"?

"Employment at Will" and "Right to Work" are two different concepts that can be confusing and are often mixed up by employees. But they are very different concepts. 

"Employment at Will" means that an employee can be terminated at any time, for any reason or for no reason at all. If the employer decides to let you go, that's the end of your job--and you have very limited legal rights to fight your termination. If you are employed "at will", your employer does not need good cause to fire you. In every state but Montana (at last check), employers are free to adopt at-will employment policies, and virtually all do. In fact, unless your employer gives some clear indication that it will only fire employees for good cause, the law presumes that you are employed at will.

Even "at will" employees, however, cannot be terminated for an illegal reason. If an employer fires someone because of his or her protected traits (race, age, disability, gender, religion, etc), or in retaliation for protected conduct, it is still illegal - even if the employment was "at will."

"Right to Work" is a very different concept that has to do with union membership. A "right-to-work" law is a state statute that prohibits union security agreements, or agreements between labor unions and employers. Generally speaking, they forbid union "closed shops". A closed shop is one in which union membership is required for employment if your job is covered by an existing collective bargaining agreement between the employer and employee. In a right to work state, a union can be elected to represent the workers but the workers cannot be required to join the union or pay union dues. 

The sounds pretty good to many employees at first and Right to Work laws have gained some traction as a result. Right-to-work laws exist in 24 U.S. states, mostly in the southern and western United States, but also including, as of 2012, the midwestern states of Michigan and Indiana. The downside of such laws is that they dramatically weaken unions buy effectively starving them of the funds they need to operate and organize. As a result, union membership in right-to-work states has dropped dramatically. Lower union membership has in turn led to a drop in workers's wages and severe damage to job protections for workers in those states.

Not surprisingly, right-to-work laws have been strongly championed by anti-worker political action groups, such as U.S. Chamber of Commerce. Such groups have spent millions on running misleading advertising and purchasing politicians who will support their efforts to curtail workers' rights and suppress wages. 

 

Do I Need To Hire a Board Certified Employment Lawyer?

It is certainly true that any lawyer who has passed the bar and is in good standing can legally represent you in an employment-related case. Many attorneys who primarily handle personal injury or other types of cases will also agree to take on wrongful termination, sexual harassment, or other types of employment cases.

However, just because a lawyer will agree to take your case does not, in and of itself, indicate that the lawyer has the specialized knowledge needed to do the absolute best job of representing a client in an employment-related legal matter. Employment law is highly specialized, largely controlled by statute, and full of short limitations time periods and other procedural issues that a practitioner must be aware of in order to fully protect his or her client’s rights.

What does “Board Certified” mean?

In order to be certified, the attorney must have substantial, relevant experience in labor and employment law and have also demonstrated and been tested for special competence in that area. Board Certified lawyers earn the right to publicly represent themselves as specialists in a select area of law.  To remain certified, an attorney must apply for recertification every five years and meet substantial involvement, peer review and continuing legal education requirements for the specialty area.

According to the Texas Board of Legal Specialization:

There are more than 70,000 attorneys licensed to practice in Texas. Only 7,000 are Board Certified.

Board Certified lawyers earn the right to publicly represent themselves as a specialist in a select area of the law. In fact, they are the only attorneys allowed by the State Bar of Texas to do so. This designation sets them apart as being an attorney with the highest, public commitment to excellence in their area of law.

In short, Board Certification is one way to find a lawyer who has devoted a great deal of time and effort developing skills and knowledge needed to effectively represent clients in that particular area of the law.

 

Are Non-compete Agreements Enforceable In Texas?

A covenant not to compete is a promise by an employee not to compete with his or her employer for a specified time in a particular place. A covenant not to compete, which is also known as a non-competition agreement, may be a clause in an employment agreement or a separate contract standing by itself.

In the past, Texas courts traditionally frowned on restrictions placed by employers on their employees’ right to find and make a living. However, over the last 10 years, Texas courts have been showing increasing willingness to uphold noncompetes in recent years and will enforce a non-competition agreement if:

  • the employer proves that it has a legitimate business interest to protect by restricting its employees’ right to compete against it;
  • the restriction on the employee’s right to compete is no greater than that necessary to protect the employer’s business interest; and
  • the covenant not to compete is supported by appropriate consideration, meaning that the employee received something in exchange for it.

Whether the "consideration" offered by the employer is adequate to support a non-compete agreement is an extremely thorny issue.  Under Texas law, money alone is not sufficient.  Normally in order to enforce a non-compete agreement, an employer must  agree to provide an employee with confidential business information or trade secrets and, in return, the employee promises not to improperly disclose or use the employer’s sensitive information. 

The area of non-compete law is extremely complicated and must be analyzed on a case-by-case basis. If you are dealing with such a situation, contact The McKinney Law Firm for a consultation.

How does the EEOC's administrative process work?

Many types of discrimination claims must be processed through the EEOC's administrative process before a lawsuit can be filed in a court of law.

The United States Equal Employment Opportunity Commission, more commonly known by its initials, EEOC, was created as part of the Civil Rights Act of 1964 to enforce Title VII. Today, the EEOC is also responsible for enforcing other anti-discrimination laws like the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), and the Equal Pay Act (EPA), though the latter provides an independent cause of action in Federal Court.

Before filing a Federal law suit for discrimination or harassment, you must first file a charge of discrimination with the EEOC or its Texas counterpart, the TWCCRD. The EEOC then investigates the charge by asking both the employee, known as the Complainant, and the employer being charged, known as the Respondent, for documents and information relevant to the charge.

At the end of its investigation, the EEOC may do one of three things: 1) Close its file without completing the investigation; 2) Conclude that it was unable to establish a violation of the law; or 3) Conclude that there is substantial evidence of a violation. This last is sometimes called a “Cause Determination”.

If the EEOC closes its file without completing the investigation, or is unable to conclude that discrimination or sexual harassment took place, it will issue a Notice of Right to Sue. The Complainant then has 90 days to file her case in Federal Court. Once that 90 days has passed the employee loses her opportunity to file in Federal Court. This is a very dangerous deadline and must be watched carefully. If you have received a Right to Sue letter, you must seek immediate legal representation if you wish to pursue your rights in court.

Unfortunately, the reality is that the EEOC is overworked and underfunded and, therefore, does not often make Cause Determinations. Importantly, the agency’s failure to do so has absolutely no bearing on the strength of an individual’s case. Many such cases are still filed in court, and it is possible to win or settle such a case even though EEOC did not make a finding in your favor.

Navigating Your case through the EEOC successfully

The EEOC process often takes well over a year to complete if you do not have a lawyer to assist you. After those 180 days pass, you can end the investigation and request a Right to Sue letter from the EEOC. This allows you to file a lawsuit in court. However, once this Right to Sue letter is issued, you have only 90 days to file in court. So don't request this letter until you have a lawyer and are ready to move forward.

The best option is to contact our office before filing an EEOC complaint. We can explain to you what to write and what to do.

The complaint is a critically important document. It spells out what you believe happened and why you think discrimination took place.
The document is a sworn statement and great care needs to be taken in wording it properly to protect your rights.

Always be friendly and professional when dealing with the EEOC. Most of their investigators really do want to help. But their caseloads are large and they simply cannot be as responsive to charging parties as they would like to be. Getting frustrated or being uncooperative with the agency will not help you achieve your goals.

If you believe that you have been discriminated against, contact our office so we can discuss what happened, why you think you have been the victim of discrimination, how the law may apply, what the EEOC is likely to do, and what your best options are for protecting your rights and interests.

Related: File a Charge With the EEOC Immediately Or Risk Losing Your Case