Erica Loren: Last month we discussed a client that came to me after attaining extraordinary success in her department within a short period of time, which created resentment from other members on her team. Leadership in the company stopped supporting her, despite her successful record. The client was wrongly accused of bullying a fellow co-worker and management pressured her to do nothing in her own defense out of fear of a lawsuit. Due to the work environment, this client went out on a temporary disability leave to address her mental health and while she was out, she received notice that she was terminated. When she filed for unemployment benefits, the employer opposed them. My role was to help this client get back on her feet after experiencing what was a very challenging situation. In your practice, do your attorneys represent individuals only after they’ve been terminated, or can you help employees even while they’re still working?
Erin Lloyd: The circumstances of our clients vary tremendously, but certainly many of our clients are still working for their employer and simply need advice and guidance in either protecting themselves within that relationship or navigating their way out of the employment relationship with the greatest benefit to the them. When clients come after they have quit or been terminated, we are obviously more limited in how we can help them.
Let’s take the client we discussed last month, for example. This client probably saw the writing on the wall well before she took leave from her job, but if she came to us after she was terminated, we would immediately need to focus on whether or not her employer had the right to fire her under the law. And generally, regardless of the answer to that question, getting the job back is usually not an option for either the employee or the employer.
Erica: Had the client reached out to you before she was terminated, what would you have advised her to do?
Erin: It depends. Whenever a client comes to see us, we always ask them what her ideal outcome would be. We always ask the client what they want and often find that clients actually do not know the answer to this question. Clients are, understandably, usually focused on what is happening to them and not so much on the possible solutions. So part of our job is to help the client figure out what her options are and what her ideal outcome is.
In a situation like this, if the client is still employed, the biggest question is: do you want to still be employed at this job or are you looking for a way out? The answer to that will dictate our next steps. If the client wants to stay in her job, we can help evaluate the communications she has had with her employer and advise her on next steps or even ghost-write communications to the employer to try to improve her situation at work and create a record that positively reflects her work there.
On the other hand, if the client expressed an interest in leaving and hopes for a severance package, we could discuss what kind of offer she might be able to expect and help her create leverage for later negotiations by documenting her position and creating a record of the situation at her workplace. We would also counsel her on the common provisions that employers demand in severance agreements and how they could impact her future endeavors.
Erica: What is the purpose of creating a record and how would that help later?
Erin: From our perspective, documentation is critical to having a strong claim, should the need arise to bring one, and for creating leverage in any severance negotiation. Proper documentation, depending on the situation and timing, can sometimes help to prevent unlawful retaliation from an employer as well.
Erica: Employment litigation seems like it would be a very challenging and emotional proposition for any client.
Erin: Yes, it is an emotional and personally taxing experience. It is akin to divorce in my opinion. I think everyone can appreciate the varying emotions one experiences in any given work environment. We as a society often spend more time at work than we do at home with our own families. And if your work environment is toxic, the relationships and personalities are usually complex. So the litigation can be charged, expensive and very adversarial as there are many things on the line once an action is commenced. It is not for everyone and we always talk to our clients about weighing the full implications of litigation before proceeding, and counsel trying to reaching a resolution when that is possible and appropriate.
Erica: I think we can both agree that employees and employers are often in need of help. Sometimes, employers are so good at their business – which is whatever they do to keep their lights on – that they don’t realize the impact of their unintended behavior on their employees. And sometimes employees need a little help in advocating for themselves and finding the confidence they need to advance in the workplace despite considerable odds.
Erin: Absolutely. Both can benefit from counsel from and consultation with outside professionals who can make objective and unbiased observations about difficult situations. We should also note that employers sometimes just need to adopt good structure and clear policies to avoid liability. We often advise employers on best practices in their employment and personnel matters. For example, clean and clear offer letters and employment manuals are a great start. Depending on the kind of employees and the industry an employer is engaged in, there are complicated rules regarding the way an employee must be paid, what kinds of records must be kept, and other regulatory requirements which requires employers to have a protocol in place to minimize liability in the event
of an action or audit. These protocols are a must in my opinion, even when a company does not have a dedicated Human Resources Department.
Erica: On a lighter note, if you were not an employment lawyer, what would you do?
Erin: That’s easy: I would be a law professor.
Erin Lloyd, Esq. is an employment lawyer and partner at Lloyd Patel LLP, a general practice law firm. She represents individuals who have been subjected to unlawful discrimination, harassment and pay practices and helps them recover the damages they are entitled to. Ms. Lloyd works with clients to develop a personalized strategy based on each client’s needs and concerns. She can be reached at email@example.com or (212) 729-4266. For more information on Lloyd Patel LLP, visit their website at www.lloydpatel.com.
Erica Loren, ACC, CPC is an ICF Certified Career Coach who partners with professionals seeking happiness and fulfillment in their careers, by honing in on the belief that we all have the potential to discover our personal gifts through professional pursuits. She guides clients down a clear and focused path, toward a powerful vision of what they want to achieve in helping them discover their dream jobs. She not only works with individuals but she also partners with corporations who want to cultivate a healthier happier work environment.
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