Thankfully not often, Raines International hears from clients and candidates who have seen their career shift unexpectedly and need help from a legal expert in a hurry. Workplace HR failures or a breach of a non-compete and non-disparagement contract may be the most well-known reasons for engaging an employment attorney. While times of workplace foul play may warrant the expertise and courtroom presence of a litigator, employment attorneys are much more than legal experts to put out a fire. More often than not, employment attorneys are instead engaged during times of transition, as well as seen by their clients as shapers of career strategy altogether. With this in mind, Raines International spoke with several leading employment attorneys to learn how a good employment attorney is not only actively engaged in litigating disagreement, but can be an invisible guardian to prevent disputes in the short, mid, and long-term.
Many executives only think of an employment attorney to resolve a legal dispute over firing, but Charles (“Chuck”) Forgang, Founder of the New York boutique employment law firm, Law Offices of Charles S. Forgang, and formerly a Partner at Epstein Becker & Green, P.C., recommends that executives should also consider consulting with an employment attorney before any career move. “Joining a company is usually a positive time when people are being brought together,” he tells Raines. The euphoria, however, could cloud an executive’s judgment and an employment lawyer can provide an objective view of contracts and flag important questions that shape your time with the firm, not only at the outset but sometimes continuing for years down the line. Given that most executives don’t stay at the same company their entire lives anymore, executives often have some leverage to help shape how their signing on and/or eventual exits will look at the onset of joining a new company. “You don’t want to overstate that leverage and you don’t want to use it foolishly,” explains Forgang. “Instead, I work with clients oftentimes behind the scenes playing Cyrano de Bergerac, whispering things in their ears that they may say or do, and together we create a wishlist.” With their guidance and expertise, employment attorneys such as Forgang are often able to help level the playing field for executives when negotiating with companies during a time when most are concerned with onboarding logistics or compensation negotiations.
So, when is the right time to engage an attorney if you are considering a move? Forgang says, “when you’re about to engage in serious discussion with a company or when you are considering a number of different options, that is when I would like to see the client… before it becomes a fire drill situation when things are much more difficult to manage. The earlier I become involved, the more I can try to either help shape the situation or help the client shape it.”
On the other end, when an executive is leaving a company — on his own terms or not — it can be helpful to get an attorney to help navigate the waters on your way out, Todd Garvelink, a Partner with Morrison Cohen tells us. An employment attorney may be able to drive compromise in situations involving non-competes or surprise firings. One executive we spoke with was unexpectedly terminated and used an employment attorney to protect his reputation with a non-disparagement clause. In that case, the executive was shocked by the sudden decision to eliminate his position, but Forgang notes in many instances, employees have an advance warning or a feeling that something isn’t right. “That’s when I want to meet with a client,” he says. “Sometimes you can help shape what happens going forward. Even if it’s an ultimate separation from the company, you can try to lay some tracks to potentially help yourself and lessen the severity of what’s about to happen.”
From the company side, employment lawyers urged the importance of consulting an attorney early and often. Attorneys should review contracts, policies and the like to ensure that organizations are not only protected from potential lawsuits but also compliant with any local, state and federal regulations concerning hiring, promotion, and firing. While employees often only think of the initial joining and ultimate separation from a company, issues such as proprietary work and adherence to regulations for leave often may need to be considered. Many companies don’t even realize the potential for litigation with the most routine decisions, and by bringing in an employment attorney to examine and develop best practices, companies can shield themselves from avoidable lawsuits, Janine Willis of Mozley, Finlayson & Loggins, LLP says. “The biggest missteps we see usually stem from issues in the company’s policies and practices,” Willis says. “We often see companies finding themselves with significant exposure where a simple tweak or change in a particular policy or practice on the front end could have shielded them dramatically or saved them significant sums of money.” Many times a company believes they are acting in the best interests of their employees, and have done nothing wrong, however, from a legal standpoint, they may be creating unnecessary problems, Willis explains. It is always best practice to have an attorney review company policies and practices on a routine basis to ensure the company’s management is not walking into a potential minefield. In the long run, the investment into an employment attorney can save a company money and time.
Likewise, individuals can protect themselves by having an employment attorney review all legal documents before signing. “My principal view is that no one should sign a legal document without having someone experienced in that area take a look. That’s my view across the board. I believe legal contracts should be viewed by someone who is highly experienced in that particular area,” Forgang says. “If you’re established in your career, I think it’s particularly important to have someone review any employment contract. Especially in the employment area, and it’s even more compelling when you’re established in your career and you’re making a move or a move has been made against you or is about to be made against you”
Similarly, Forgang notes “you’d like to speak to your doctor before things get out of hand,” so why wouldn’t you contact an attorney who has that depth of experience in reviewing employment contracts or relationships before signing on? Forgang echoes the ability of a good employment lawyer to help shape and direct without intruding in the negotiations. However, with that in mind, Garvelink warns us that at some points, using a lawyer can escalate or complicate negotiations. “Lawyers can only speak to the other side’s lawyer, who typically does not have the authority to make significant deal changes without further authorization from the client,” Garvelink says. “At some point, it’s often better for the two parties to sit down and work out open issues, with their lawyers helping with the talking points. And sometimes it’s better when the lawyers are not at that meeting.” Indeed, even though there can’t be any guarantees, that’s why Forgang often seeks to utilize his Cyrano de Bergerac type of approach in appropriate situations, so as to try to prepare his client for one-on-one discussions between the parties at a comparatively early stage, even if lawyer-to- lawyer negotiations may then have to follow.
While lawyers may help executives determine whether there is a possible negotiation, it is important to remember that lawyers should only provide direction and not decisions. “You don’t want your lawyer deciding whether or not you take a job,” Garvelink says. After all, a client may have the perfect contract and the worst job, or the best job with the worst contract. At the end of the day, the executive is who must decide what they want and if the position and resolution is ideal. Similarly, clients must find the right lawyer for the job — find an employment attorney with experience in your field, at your career level and to suit your needs. And be sure to ignore the stigma of an employment attorney — we would take reward over risk any day.