Work Claims Easily Overwhelm the Uninitiated

By Tracy Conlon

Still waters run deep—that is the essence of employment law. Employment claims look straightforward and manageable on the surface—underneath, a bubbling cauldron of quirky filing deadlines, weird procedural rules, fickle case law, and confusing state and federal interplay. The sheer number of federal and state laws—each with multiple parts, chapters, sections, subsections—regulating wages, unemployment benefits, workplace injuries, medical leave, employee retirement plans, discrimination, union activity, workplace privacy—can quickly overwhelm the general practitioner who only rarely handles employment cases. Traversing these murky waters can be done, but it takes the wisdom to get out before you are in over your head, no matter how seductive the siren call.

Here’s an easy one: If it smells anything like ERISA, and you only vaguely understand the intricacies of employee retirement income rules, send the client in the direction of a qualified ERISA attorney. The same holds true with workers’ compensation claims. Unless you have a solid understanding of this specialized area of the law, refer the client or find an attorney willing to hold your hand through it.

Solos and small firms accepting employment work should prepare for two things: litigating in federal court whether you like it or not, and going up against the “Big Guns” Most individuals who come to you with employment problems have recently been fired, and clients without employment are clients without funds. Corporate employers, other the other hand, are willing and able to fund big firms, either because of a genuine belief that the corporation has done nothing improper or simply because the stakes are so high for violating employee protection laws.

If the claim does not settle at the demand stage—and predicting which cases will settle is nearly impossible because of the highly personal nature of the employer–employee relationship—be prepared to dig in for a long battle against defense counsel that has a big budget. Brush up on your local rules, too, for those cases where employer’s counsel can and does remove to federal court. This is especially likely when the employer looks like “mom and pop,” but is actually “Giant Conglomerate”—a fact not always obvious at the beginning of a claim. Do your homework before accepting the case or risk inadvertently suing Pepsi Bottling Co.

State discrimination agencies deal with many pro se applicants and can be very helpful to novice attorneys. The Department of Labor’s Web site is a veritable gold mine of free information. Try to avoid giving clients off–the–cuff answers. Many employment claims are fact–specific and require research. Don’t fear telling clients, “I don’t know, let me get back to you,” or “My colleague Joan Smith routinely handles employment matters; here’s her number.”

A good rule of thumb is: If you are still grappling with a specific employment issue after much research, still unsure of your next (or first) step, send it away. Successfully, and competently, handling employment matters is taking the time to plan a five–course meal, not a quick trip to Jack–in–the–Box. More important—knowing when to order out.

Tracy M. Conlon is a solo in Beverly, Massachusetts, exclusively practicing employment law. Contact her at tracy@tconlonlaw.com or visit her blog at http://northshoreemploymentlawyer.com/.

© Copyright 2009, American Bar Association.