how to tell your employer that you’re bringing in a lawyer

by Alison Green on August 15, 2019

If you’ve tried to resolve a labor law violation with your employer without success and are at the point where you’ve hired a lawyer who’s going to contact your employer to help advocate for you, you might wonder how to tell your employer that.

Do you say nothing and let them be blindsided when the lawyer contacts them? You could do it that way.

But if you’re hoping to minimize tension and preserve the relationship as much as possible, often it will make sense to give your employer some context for your decision to involve an attorney.

To use a specific example, someone in last week’s open thread wrote that her employer is flatly denying her medical accommodations under the Americans with Disabilities Act. I suggested using wording like this:

“I’m very sure the law does require this accommodation but my sense is that it won’t be helpful for me to continue pushing that on my own. Given that, I’m going to ask a lawyer to get in touch with you about this, so that someone other than me is able to speak with you about it and hopefully reach a solution.”

Commenter JSPA also suggested this wording, which is excellent:

“This isn’t working, I’m out of ideas, nothing we’ve tried has worked, so we need someone to help us generate more ideas, and find a workable solution. A friend suggested that a disability lawyer would have much more experience than either of us, have a lot of practical experience as far as what works and what doesn’t, and as a bonus, they’d presumably know what the law requires.”

And commenter Ginevra Farnshawe stressed that you should check with your lawyer before you say any of this, since you don’t want them to lawyer up before you do and a lawyer will be able to advise you on the right wording to use in your situation.

Note, since there was some confusion about this in the comments: This is about what you say after you’ve really hired an attorney who is about to contact your employer. This is not about threatening to hire a lawyer (which is rarely a helpful threat to make). It’s about explaining that you actually have.

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  1. Noninoni*

    As a lawyer, I can say it’s important to focus on resolving the issue and to not mention law suits.

    A lot of non-lawyers think that what we do is high courtroom drama. The vast majority of legal work is outside the courtroom trying to resolve issues amicably.

    There’s a lot more paperwork and deescalation that pop culture would have us believe.

    It’s also quite boring at times. Mickey Haller moments are rare.

    1. Magenta Sky*

      For most lawyers, their job is to keep their clients *out* of court. Litigators are a minority.

      1. CJ Record*

        I’ve heard a lot of respectable lawyers say that there are two types of people you never want to hear your case: judges and juries, because neither are truly predictable.

      2. Trout 'Waver*

        It’s kinda a paradox, though. If you get a reputation for being a good litigator, you wind up litigating less because people know you’re going to make them work hard for it.

      3. Noah*

        Litigators are the largest single segment of lawyers. But that’s not inconsistent with the rest of what you said because litigators are also the primary lawyers whose job it is to keep their clients out of court.

        1. Princess Consuela Banana Hammock*

          That’s not true, at least in the U.S—the majority of American lawyers are transactional lawyers. Litigators (many of which are not trial lawyers) are the biggest practice block for BigLaw, but not for the profession writ large.

      4. Contracts Killer*

        I completely agree. In my first meeting with new clients, I tell them my job is to do everything I can to help keep them out of court and the court of public opinion.

    2. Wintermute*

      In a situation like the one posted though, there is no more amicable. I agree that a big part of navigating legal issues is avoiding finding yourself in a courtroom to start with– BUT, and this is equally important, it’s also vital to know when to stop playing nice and when to draw the battle lines. Basic ADA accommodation is one of those times, none of the amicable attempts have worked, none of the stopgap “I try to make it work” solutions worked, the law is clear, it’s time to stop being amicable and start being assertive.

      1. banzo_bean*

        I think Noninoni’s point is that the lawyer will likely try avenues for resolving the dispute that don’t involve going to court first and less that the OP should try to resolve the issue amicably.

    3. Princess Consuela Banana Hammock*

      Hard agree. I always tell my clients that going through litigation is like getting a divorce. Absent behavior that is so egregious that there is no possibility of reconciliation, most folks want to at least try other options before deploying their biggest weapon.

      Generally speaking, threatening a lawsuit is not helpful unless you’re actually going to do it, and once you make the threat, you should be prepared for the “opposition” to clam up and batten down.

  2. NotAnotherManager!*

    One thing that notifying your employer of a potential suit will also do is put them on notice that they need to retain documents related to your matter. If they reasonably anticipate litigation, they need to preserve your files, their communications with you, etc. so they are available as discoverable factual evidence in case you do have to sue them. Many companies have routine destruction schedules, and, if you work for one of those places that only keeps email in the inbox for a week or two, you want to make sure that email your boss sent you denying accommodation is still available to you later.

    (I am not an attorney, and you should take Alison’s advice and consult an attorney of your own who represents your interest and knows your case.)

    1. Auntie Social*

      Your lawyer will draft a litigation hold letter. It’s one of the first things he should do.

      1. NotAnotherManager!*

        Oh, right, but if the person involved is having their attorney stay out of the direct communication and is using them more in a consultative capacity, there needs to be some sort of triggering event that qualifies as reasonable anticipation of litigation.

        And, “should” and what actually happens vary a lot in real life. :) I am always surprised when larger organizations have no hold process and “lose” things.

  3. NPOQueen*

    I can’t imagine how mentioning a lawyer would do anything but escalate tensions. Perhaps it would be illegal to fire you after the lawyer comes in, but I could see them freezing you out. I wonder if anyone has experience bringing in a lawyer and having things work out for the best?

    1. Magenta Sky*

      Context is everything. If nothing else, it will get them to talk to *their* attorney, and if they’re actually doing something illegal, it might be a wake-up call for them.

      1. blackcat*

        Yes.

        My dad is in corporate law. He has said a lot of his work is telling clients “What you’ve done is bad. Let me try to fix it and seriously do not do it again.” And going to trial is generally a bad outcome, no matter what. Particularly when a large corporation is screwing over a normal person, trials generate bad press (that stuff is public!) and in jury trials, regular people will side with regular people over The Man. It can go badly even if the company hasn’t done anything illegal.

    2. Ask a Manager* Post author

      The thing is, if you’re bringing in an lawyer, they’re going to find that out because the lawyer is going to contact them! So this is about how to give them a heads-up about that so that they don’t learn it for the first time when the lawyer makes contact. The idea is to keep things sounding as un-hostile and as un-adversarial as you can (within reason).

      1. Snark*

        Exactly this. Bringing in your lawyer isn’t a threat. It’s a description of how things are going to go.

        1. Trout 'Waver*

          Yup. “I going to get an attorney and sue you!” is a threat. “My attorney will be reaching out to you.” is not.

    3. Les*

      Retaliation is usually easier to prove than discrimination when it comes to suing/seeking a settlement. If they “freeze you out,” they’ve retaliated.

    4. Beth*

      Pretty sure these scripts are for after you’ve already decided that legal advice is necessary and hired a lawyer–not for when you’re starting to consider whether it might be an option. At that point, they’re going to find out you brought in a lawyer! It’s just a question of what’s the least-escalating way to tell them.

    5. Wintermute*

      Once you have brought in a lawyer then you’re right, “amicable” is out the window, you do need to view everything you do through a more adversarial lens. But, frankly, a lot of people think they’re more clever than they are, judges are, mostly, reasonable people and they understand nuance exists. Any attempt to freeze you out will be seen as the retaliation it is, most likely. You will have to keep records, and you will need to be sure to follow documented work rules scrupulously (even if there’s a lot of unofficial policy or unofficial exceptions in your workplace), but it can work out.

      It’s not dissimilar from occasions when a union has forced reinstatement of someone’s job, and I’ve known multiple people in that situation, including one where the union did lawyer up, management didn’t like it, but the law/contract said he couldn’t be fired so they had to suck it up.

  4. voyager1*

    I guess that script is okay. But honestly I think just blindsiding them is best. If you were let go after saying something like that, would that be considered retaliatory discharge?

    1. Meh*

      The biggest takeaway from this post is to contact a lawyer before you mention (or not mention) contacting a lawyer. Presumably they’d be able to answer that question.

    2. Anonymous Poster*

      Blindsiding them would make the conversation that should be somewhat amicable, and assuming the company isn’t aware of their legal obligations and still assuming the best, into something adversarial.

      People that like one another will generally still try to find a compromise that works for both sides, instead of digging in and making things harder.

      1. Magenta Sky*

        It’s all about context. If the employer really doesn’t realize what they’re doing is illegal, or doesn’t believe it because the employee is not, after all, a lawyer, that’s one thing, and possibly subject to an amicable conversation.

        If, on the other hand, they have acknowledged that they’re breaking the law, and just don’t care, or threaten retaliation if the employee complaints to the labor board, that’s another.

        Personally, and I’m probably a little extreme on this, if I felt the need to involved a lawyer at all, it would be well past amicable, and I probably wouldn’t be working there any more anyway. But I refuse to work for unreasonable people in the first place, so it’s unlikely any situation would get that bad before I was long gone.

    3. Trout 'Waver*

      I think there may be times when blindsiding is best. But your attorney is a skilled professional who can advise on whether to blindside them or not in your particular case.

      1. Wintermute*

        This!

        A good lawyer can tell you what will be to your tactical advantage, including how to give any opposing side more than enough rope to tie their own hands.

      3. Princess Consuela Banana Hammock*

        Yes! Generally, determining whether to blindside your employer should be a strategic choice, made in consultation with a competent and skilled attorney. It shouldn’t be an emotional choice.

    4. JSPA*

      Depends in part whether your priority is the possibility of a single large settlement, or the possibility of amicable continued employment there. (Also in part on the bias of your local courts, which varies regionally both by law and by custom.)

      “Let’s fix this together with help that I have hired” is for when you sense that there isn’t particular pre-existing ill-will, but rather, fecklessness / cluelessness about what the law requires–and about how important it is to you (and for them) to comply.

      There are a lot of no-longer-quite-startups that never got around to figuring out what accommodations and compliance even are (having launched with a handful of currently young, currently healthy recent grads who all knew each other socially and excused each others’ foibles).

  5. The Man, Becky Lynch*

    I wouldn’t bring up the lawyer prior to obtaining one, I would just call one and see what they have to say about it.

    They will usually not advise you to “threaten” a lawyer, if there’s a case. They will just start taking action to tell the employer that you’ve obtained counsel and that they want to speak on your behalf to the employer’s attorney if they’re available. Then the lawyers get to duke it out so to speak.

    A lot of times if you throw out the “lawyer” word, they’ll start just redirecting you to legal instead of HR anyways, since that’s a trigger word to start tightening up the ship and no further discussions between you and them can take place. This also happens when you as a customer throws out a “lawyer” card, you should stop speaking and redirect to your lawyer because it’s gotten to that escalated stage and you are advised to eject from the continued conversations you were previously having.

      1. Triumphant Fox*

        Right, there’s no threatening here. This is a way to advise them that you’ve contacted an attorney, who will be in touch and take things from there because things aren’t working for you. It may mean taking the conversation off the table between you and the company and directing everything through legal going forward related to the accommodations, etc. instead of HR. The point is to signal that graciously rather than have them be blind-sided and freeze you out and have everything be awkward.

        It’s not a technique for upping the stakes in an exchange.

      2. The Man, Becky Lynch*

        Ah okay, that makes complete sense and completely true.

        I’ve had the “I’ll call my attorney” card pulled by people without counsel before, then get all flustered and start trying to back peddle when you tell them that means that you can longer speak about the matter with them since it’s being sent to legal.

        So my knee jerk reaction was thinking this was being used as a tactic to get them to back down prior to actually having a lawyer on tap!

      3. Snark*

        Yes. You are hiring an attorney to have difficult, complicated conversations for you. Don’t attempt to have any for them. And do it quietly, decisively, and quickly if you do it.

      4. Jaydee*

        Oh, but people do! They say “talk to my lawyer!” before they’ve even talked to a lawyer, let alone hired one.

        There’s a common perception that lawyers are like gasoline. You add that to the fire, and the bridge is going to burn faster. And there are definitely some lawyers like that. But most lawyers would much prefer to be firefighters and to try to salvage the bridge so it can be rebuilt. A lot of that isn’t visible, both because it doesn’t make for good TV/movies and because the result is (hopefully) a bridge instead of a charred swath of land where a bridge once stood.

        1. Mayor of Llamatown*

          This. Most of the stuff lawyers do is drafting letters and sitting in meetings. A good lawyer will work to find out early on what a client wants out of the situation, as well as helping them understand what the best approach is – it’s not usually “take them to the cleaners” or “burn this bridge”. Generally they are working to resolve the matter and want to work with the other side to get fast and complete resolution rather than go through a trial.

      5. Noah*

        Once you hire a lawyer, you should say what the lawyer asks you to say (if they ask you to say anything).

    2. Red Reader the Adulting Fairy*

      Yep. I do customer service bill review requests, among other things, and as soon as the party on the other end says anything at all about getting a lawyer or suing over the bill, I am no longer allowed to answer any further questions, I am only able to direct them to our legal team for further discussion.

  6. Nobody Special*

    This could be especially important under the ADA. It is somewhat context-driven; what is “reasonable” accomodation for one employer could be unreasonable for another, for example. I had a somewhat disturbing experience with an employer that was steeped in HRs misunderstanding of the ADA.

    1. WellRed*

      For the commenter in question last week, they weren’t getting even a discussion or any effort on the part of the employer for accommodation, as I recall. They were basically told, “too bad.”

  7. Backpacker*

    I’d like to broaden this conversation a little (if it’s OK with you Alison, if not, please remove this).

    I have a workman’s comp injury. The company paid for the surgery and physical therapy, so I can walk and sit (and do my work). However, due to the injury, I still cannot do certain activities due to the recovering injury. For an example; before the injury, I loved backpack camping in the mountains and did it all the time. Post injury, I could hike but cannot haul a pack, and therefore can only do a day hike (no camping). However, I am healed sufficiently to do my primarily office job 100%.

    Company is balking at continuing physical therapy and consideration of ways to get me back to what I consider 100% (i.e. backpack camping and similar recreation). They state that workman’s comp has been met and any further medical needs must be met and paid for by me.

    I’m in the US and my limited understanding of workman’s comp seems to say that the company is correct. Since this injury has affected my personal life, I am considering hiring an attorney. Is the same script valid? Especially since I would be trying to get money for undefined future care?

    1. blackcat*

      Honestly, you get the lawyer first and ask them what to say. You may find, unfortunately, that you do not have standing…

    2. Poppy*

      Do you have a worker’s comp lawyer already? They should be able to advise you – and depending on the circumstances it should be getting you to 100% for your life – not just the hours a week you’re in the office. It depends on states/localities/hardships etc – but a solid workers comp lawyer would know how to get those answers. Look for someone who practices that because they’ll likely have a slightly different script – and process.

      1. Backpacker*

        It never occurred to me to get a lawyer prior, since the company had been paying for physical therapy without a problem.

        Any ideas on how to find a competent lawyer who specializes in this area? I’ve never needed to contact a lawyer before.

        1. The Man, Becky Lynch*

          Google personal injury attorney’s for your area and find one that specializes in worker’s comp claims.

          Most will consult with you for free or a low fee to see if they can help you in the first place. Go with your gut when dealing with lawyers. A good/competent lawyer is subjective in a lot of ways, you want someone who you click with and takes your claim seriously and believes in your case. I would go with someone with a history of worker’s comp claims since they know the system and that’s why you dont’ want to just grab up a personal injury lawyer that is only versed in auto accidents or something like that.

        2. The Man, Becky Lynch*

          Scratch part of that. They are worker’s comp attorney’s, not personal injury attorneys that you’ll look up. I didn’t realize it was two subsets.

        3. Poppy*

          Oh yeah I’m with Becky Lynch below about jerking you around and needing a lawyer now.

          And, I say this with kindness I promise, they were paying for physical therapy because they’re cheap and likely a bit mean. They hoped you wouldn’t realize how much more you’re likely entitled to than physical therapy.

          As far as finding a lawyer, almost every state bar association has a lawyer search function on their websites. Some states allow you to filter by practice area – if yours does, add that filter and go down the list of names it generates. Go through that list of names and call/check out their websites*. Generally speaking, it’s like finding a doctor – you’re looking for someone who specializes in workers comp, that you feel comfortable with, who is not inconveniently located as far as the rest of your life.
          *not all workers comp lawyers have websites, that’s less of a thing in the areas where I’m from.
          If the bar association doesn’t filter by practice area you can try calling them and asking for a list or call several of the lawyers who show up on the list ask them if they handle workers comp or if they can refer you to someone who does. Ask for references if you’re comfortable with that but know it may be long shot.
          Good luck!

        4. EMW*

          Just echoing that it does vary by state what WC will do. Some states have very specific guidelines for what is and isn’t covered. It’s super complicated, and I’ve often worked with lawyers on even simple cases because the IE doesn’t understand how it works and wants someone fighting for them. Once you say you’ve hired a lawyer, no one will talk to you about it further, they HAVE to go through your attorney. Lots of people don’t understand that part and thought I was just being mean/punitive when I refused to explain anything to them while explaining the process to their coworkers (who did not have lawyers).

        5. Trout 'Waver*

          If you’re in the US, your state’s BAR association will have a referral service to members in your area in good standing.

          If you know any lawyers professionally (like your real estate attorney if you bought a house) or personally, ask them for a referral. They’ll know who’s good and best suited to your case even if they practice in a completely different area of law.

          1. Dino*

            Also, sometimes the state bar referral can get you a free or extremely cheap consultation. If your state bar does that, I’d suggest going through them for the discount.

        6. Burned Out Supervisor*

          Google might overwhelm you with options. Start with your state’s Department of Labor website to see if there’s a list of attorneys or even the state bar. Also, if you have a large firm in your area, you could inquire if they have any good referrals.

      2. Backpacker*

        Thank you everyone. You’ve given me a lot of good advice and realistic expectations. Thanks for taking the time to respond — y’all are great!!

    3. The Man, Becky Lynch*

      Workman’s comp is notorious for jerking employees around post injury. Please call a lawyer.

      This is like if you’re ever in an auto accident and they want to just give you the bare minimum. They’re banking on the people who are happy enough with their low balled settlement and will dig their heels in unless you have a lawyer on board to get what you’re actually owed.

    4. Quickbeam*

      I’ve been doing Work Comp case management for over 25 years. In my state, you have been correctly compensated by the WC carrier. HOWEVER, comp law is very state driven. If it was me, I’d consult a WC lawyer as to what is compensable in your state. Also, on the off chance there are 2 states involved (you live in one, were hurt in another) you might be able to choose the state which benefits you most. Good luck!

    5. JSPA*

      having been there…life does not guarantee that any amount of PT will restore you to full operating condition. Sometimes it comes with the passage of years, sometimes it comes mysteriously, sometimes it comes while in pursuit of substitute sports activities, and sometimes it comes not at all. (Same as for injuries sustained on your own time.)

      Having a clear idea of what further interventions are considered medically likely to be helpful (rather than, “I’m not where I want to end up and am sure there’s a way to get there with more PT”) is helpful (legally and personally).

      Having ideas for alternative strategies to enjoy similar levels of exercise and outdoor time will put you in a better place, emotionally.

      1. Shad*

        Depending on the state, OP may be entitled to compensation for his loss of capacity if no further treatment is likely to help even if he’s able to return to work without restrictions. I’m a paralegal working for a workers comp defense firm, and in my state, I’ve seen cases where that’s happened. An attorney in OP’s state would know whether that’s the case in their jurisdiction and, if so, what forms and documentation they need from a doctor in order to support their expectations.
        Admittedly, money isn’t really a replacement for being able to go hiking, but if you’re stuck without the latter, you might as well try for the former.

    6. Holly*

      Workers Compensation law is extremely complex and often nonsensical to a layperson. You definitely want to hire a workers compensation lawyer with expertise in that area of the law. It can’t just be a lawyer pal who does contracts for instance. Trust me.

    7. Gumby*

      And now I am super grateful for my mom’s workers comp which basically will cover almost anything that goes wrong with her wrist for the rest of her life. And she’s now retired.

      They were possibly a little suspicious at the start but the incident was widely witnessed so after the initial claim was called good they were nothing but helpful. Beyond what she expected. I mean, she will basically always have aches and pains there because 100% recovery is medically impossible in her case, but workers comp is not the impediment – reality is.

  8. Mayati*

    You don’t want to imply that the lawyer is there to help both of you neutrally if he or she is *your* lawyer — but any lawyer worth their salt will clear up the nature of the representation at the beginning of a conversation like this. Still, the examples given are a little too easy to misread. Maybe something like this:

    “I realized this isn’t working and I’m not an expert in employment issues, so I reached out to a lawyer for help resolving this in a way that hopefully benefits everyone involved. She’s got an ethical duty to talk to your lawyer if you have one, and maybe the two of them can work this out given their experience and knowledge.”

    2. Noah*

      It creates an awkward situation to force the lawyer to do that. The better approach is to just NOT say what the reader suggestion says. Instead, say what your lawyer asks you to say.

      1. Ask a Manager* Post author

        As the post says, consult with your lawyer. But it’s helpful for people to be able to envision the way they can frame this, and it can lower some of the anxiety about how this will go.

    3. JSPA*

      I can see a misunderstanding arising if both the company and the worker are actively working to come up with suggestions to fix a problem.

      In cases such as this, where

      1. the worker is the only one who sees a problem,

      2. the worker is the only doing the suggesting,

      3. the company is either shutting down the suggestions or barely engaging,

      The “help us” wording, by itself, really can’t be construed to imply, “I’m paying a lawyer to represent both of us.”

      This is a nice way to say, “you’ll be hearing from my lawyer!– but don’t get anxious, I am glad to work here, I’m only trying to make sure we both know about accommodations and get accommodated, and I will only sue the pants off you if you continue to violate the law, egregiously, thus preventing me from being able to do my job.”

    4. Princess Consuela Banana Hammock*

      I think I fall on the other side, because it’s not really fair for a lawyer to deputize their client to set the record straight regarding PR.

      I would much rather my client use Alison’s script than advise that I have an ethical duty to contact the employer’s lawyer. Lawyers on both sides know that that’s the requirement. If I had to tweak Alison’s first script, I would say (changes in italics):

      I’m very sure the law does require this accommodation but my sense is that it won’t be helpful for me to continue pushing that on my own. Given that, I’m going to ask a lawyer to get in touch with you about this. She may have to reach out through legal, first, but I think it will be helpful for someone other than me is able to speak with you about it and hopefully reach a solution.

      And I like JSPA’s script as is.

  9. Potatatoo*

    I wish this thread/discussion had existed when I was facing serious ADA violations, retaliation, and discrimination at my last place of employment which left me constructively discharged. It would have been so helpful to know what to do prior to being discharged, filing an EEOC complaint, and getting lawyers involved.

  10. always in email jail*

    I actually like the second script provided. I really like how it frames the attorney as someone with more experience in these conversations who may be able to offer a suggestion they haven’t already thought of, rather than a threat. (Not that Alison’s wording sounds like a threat, but the second goes a bit further to make it clear that the goal is truly to find an accommodation)

    1. Snark*

      I mean, it is that, but it’s also kind of a velvet glove, in that it’s a face-saving and pleasant framing of “you’re being dicks about this, so I’m lawyered up and we’re doing this the hard way.”

      I just called someone up and apologized to them for having been put on the spot to answer questions about my compliance program, which in the same fashion was a nice way to say “stop answering questions about my goddamn business and refer people to me the way you should have, kthx.”

  11. Destroyer of Worlds, Empress of Awesome*

    As someone who currently HAS a lawyer handling an employment discrimination case (whistleblower violations, anyone?), I can verify that my attorney’s advice is to speak with an attorney BEFORE ever even mentioning it to your employer. The attorney will tell you what phrasing to use, how to handle the employer if the s&it hits the fan and will be able to best advise you.

    Do not EVER threaten to hire a lawyer. When I was fired for being a whistleblower (federal case ongoing), I didn’t say diddly about hiring a lawyer. I just laughed and laughed and laughed….as I packed my desk and left the offices. I laughed all the way home.

    But I didn’t say ANYthing to them about hiring a lawyer. They were extremely surprised to receive the Federal Complaint.

    1. CM*

      Yes, as a lawyer — ask your lawyer for advice about when to broach the subject with your employer and what to say! You don’t have to listen, but your lawyer is VERY likely to have an opinion on what you say to your employer and when.

    2. President Porpoise*

      Has there been any update on yours? I’ve been thinking about your situation and how unfortunate it’s been. I hope it’s getting better.

      1. Destroyer of Worlds, Empress of Awesome*

        I do have an update, but it is massively long and I don’t want to “dominate” any Friday thread. I’m thinking I’m just going to type up a document and put it on my google drive with open access so y’all can read it at your leisure. Things have been SO interesting here…..

      1. Destroyer of Worlds, Empress of Awesome*

        Thanks so much! Things here are progressing…..nicely. I do have a massive update with so much news, but don’t want to dominate any Friday thread. I’m probably gonna post the update as a document on my google drive with open access so y’all can read it at your leisure. I’d suggest popcorn…it’s a good one!

        1. ECHM*

          Could you send the update to Alison so it could be part of the weekly posts? I don’t want to miss it in a Friday thread!

  12. AlexandrinaVictoria*

    I was the original poster in question. I have spoken to a lawyer and they are compiling a letter using my saved emails, forms, etc. They asked me not to say anything until the letter was in the mail. I really appreciate all the suggestions and support from people, and will be letting HR know to expect a letter once it’s winging its way to them!

    1. The Man, Becky Lynch*

      Thank you for your update! I’m so glad that they’re working on your case and I hope that they get them to stop being so ridiculous with your situation. I can’t imagine treating someone so poorly when all they want to do is comfortably get to the restroom.

    3. MissDisplaced*

      I hope it works out for you. They were being ridiculous and they could’ve solved it without a whole lot of fuss. Honestly, I sometimes wonder about these companies.

  13. Anonymous Poster*

    A good lawyer will tell you how this generally goes down, because they’ve been down this road before.

    They’ll tell you to contact them early and how to try and resolve the issue without escalation. They’ll tell you how to escalate within the company and try to get what you need that way. They’ll tell you and coach you on phrases and words to use when doing this or introducing your lawyer, if it goes down that path. They’ll work with you the whole way.

    This is their world and they know how it tends to operate, so follow their advice. As Alison said, you don’t want it to go nuclear and adversarial unless all other options have been exhausted. What purpose does lighting the world on fire serve, generally, when what you really want is what you’re entitled to?

  14. Nini*

    When I hired a lawyer to handle my sexual harassment case, I left on vacation right before the lawyer was set to contact them, relaxed on the beach for a week, then returned to see what havoc had been wrecked. But y’know, to each their own.

    1. Ask a Manager* Post author

      I actually think sexual harassment is a time where that approach can make sense — it’s different from negotiating (for an accommodation, or trying to get them to pay your overtime, or so forth).

      1. Nini*

        My lawyer recommended it actually since I told him I had a vacation coming up. He said that me being gone would give them time to react without me being there to take it out on. And indeed, by the time I got back they’d hired a more competent lawyer themselves and rearranged my reporting structure. It took another 2 months to resolve things (which was rough) but that’s mostly due to the date the EEOC set.

  15. Yankee in Dixieland*

    What about when you *should* lawyer up, but can’t afford it? My current employer is misappropriating employee tips to subsidize the already illegal salary they were paying to their exempt GM (and have been for over a year-and-a-half), and I assume they are continuing the practice with the new GM.

    I came into this information when they offered me the GM’s job after she gave notice, and I requested the details of pay/duties before I would accept. They promised to send over the info, but then dropped me like a hot potato (they literally never spoke to me again about the position and then hired from the outside). When the former GM shared her paystub with me, I was gobsmacked. They were violating the FLSA in three ways, and it seems like they did not want this in writing when they offered me the job.

    I assume they are continuing the current illegal pay structure with this new hire. I very badly want to “bring this to their attention,” but I’m 100% sure I would lose my job (can’t afford it), and laywering up at this stage seems expensive and imprudent and unlikely to pay off for me, as I have the least to gain financially–though the former GM and all the employees who worked on her shifts for the last 1.5 years definitely are owed back wages.

    I think retail and hospitality workers really have very little to gain by whistleblowing unless there is another job immediately lined up, or they otherwise may expect financial security out of doing so.

    1. Ask a Manager* Post author

      With pay stuff, you can often report it to your state department of labor and don’t need to hire an attorney! You can talk to your state DoL about whether or not they can keep your identity confidential.

      1. Destroyer of Worlds, Empress of Awesome*

        Bingo! Start with the DOL. You would have every right to sue them privately, but that requires a lawyer and if you hire a lawyer BEFORE you contact the DOL, the DOL will say there is nothing they can do.

        I speak from recent experience, unfortunately.

          1. The Man, Becky Lynch*

            Their fines are no joke either.

            I regularly get emails about yet another company getting slaughtered with fines due to their illegal activity. On top of the back pay or interest penalties they’re given.

            Sadly the DOL is backlogged though at all times so they can’t crack down on every single shady and downright awful establishment even with reports flying in.

          2. blackcat*

            Depending on the state, it can be how they earn their keep. They love finding people to fine!

      2. Princess Consuela Banana Hammock*

        Hard agree with Alison. If the DoL is functional and finds problems, they may end up litigating on your behalf. And if they don’t, you can always consult a plaintiff-side wage-and-hour / employment attorney who works on contingency.

    2. Holly*

      There are lawyers who work on contingency fees (you don’t pay up front, they take a cut of the winnings) but in your case I would definitely contact your state department of labor and attorney general’s office. Government lawyers are free, just note that they represent the state and not you.

    3. The Man, Becky Lynch*

      Sadly this is exactly why the service industry is able to continue to be corrupt and get away with breaking so many laws.

      The department of labor will take the reports and be able to audit them if they see fit. This isn’t so much an attorney thing since they’ll be fined out the wahzoo if the audit finds more nonsense in their payroll which I’m sure they will…most places like this aren’t just doing one thing wrong.

    4. LQ*

      This may or may not fall under this but I’d also look at contacting your local revenue, unemployment, and AGs offices. DOL is good and will often lead something like this. But sometimes DOL’s case load is too high, but your revenue/tax folks will move faster. Also worth looking at not just state wide but if you are working in a large city, some cities will have their own pursuit of these things. Sometimes you can do anonymous reporting online if you have enough detail.

      A lot of this depends of how politically this is being pushed within your state/city. Our governor is doing a big push on wage theft and is trying to identify and address a lot of things like this through different agencies.

  16. Temperance*

    I’ve noticed that plenty of people tend to fly off the handle and act foolish and then bring in an attorney when the situation is already a mess. Lawyers are not miracle workers.

  17. Noah*

    I would strongly discourage any client from making a statement to the other side (and your employer is surely the other side) that suggests I would be in any way neutral. It’s not a good expectation to set and is a bad look for a lawyer.

    2. Holly*

      I don’t think Allison’s script implies any sort of duty of the lawyer to be a neutral party – I think that’s common sense enough for any employer to understand.

  18. Jolie*

    I’m not a lawyer, but I am a worker’s rights advisor (in the UK, think similar-ish to Citizens Advice except a much smaller charity, much more hands-on /in-depth and with a very specific focus on employment rights and employability. (As an aside, I am drawing SO MUCH inspiration for my work from AAM!)

    A lot of what we do comes down to contacting employers. When that happens, they are usually blindsided (we always get permission in writing from employees before contacting employers, but can’t recall any clients being like “Actually, let me give my employer a heads-up that you will be contacting them first”.

    Generally, when contacting employers, I try to keep a neutral and non-accusatory tone (but assertive with a hint of icily polite). A typical script would be :
    “Hello, my name is Jolie and I am calling you from Suchandsuch, a workers’ rights charity. We have been contacted by your employee, Mr Fergus Warbleworth, who told us that you have failed to pay him for three days of work in July this year. I would like to get your side of the story as well before advising him further – what is going on? ”

    The next step is then the Strongly Worded Letter,which our clients usually write in their own name (we help them draft it as we explain their rights) but we typically encourage them add a paragraph to the effect of :

    ” If you do not respond /pay me the money owed to me/ whatever the issue is within the next 21 days, I will continue to seek resolution through the legal channels. I am currently receiving advice from Suchandsuch Charity, who will support me with undertaking this”.

    The reason why we do it this way : many of our clients are very working class people, with lower levels of education and quite often also immigrants unfamiliar with British law /institutions and with low levels of English. This is why they are often targeted by unscrupulous employers who think that they can swindle and exploit them because they don’t know their rights /what’s legal or illegal/what is normal in a British workplace. So in some cases, just the knowledge that “Oops, this person has on their corner someone who has the knowledge and confidence to be icily polite on the phone and write Strongly Worded Letters” is enough to get them to back off and realise they don’t get to take that person for a fool.

    1. Clementine*

      This might be a UK difference, but I can’t see that working in the US or Canada, because the employer would say they aren’t authorized to speak to a third party about the employee’s financial situation, at least without the employee’s written consent. How does that work for you?

      1. Jolie*

        I think there were some situations where they said they would speak to the employee directly (and then they did or they didn’t). We always had the employee’s written consent to contact the employer beforehand, as a matter of our own internal policy, but we never had an employer actually asking to see it

  19. MissDisplaced*

    This is a great post and I’m planning to bookmark or file it. Hopefully I’ll never have to use, but at least I know where to go.
    I’ve only ever contacted an employment attorney once, because of being misclassified as exempt but being expected to work 55-60 hour weeks but having no real agency or discretion about the job. Unfortunately, the attorney wasn’t interested unless I could get 8-10 others for a class action. I think later the state did investigate the company, but of course by then they were out of business.

  20. agnes*

    I had a situation where i breathed a sigh of relief when the employee told me they had retained counsel. The employee was being completely unreasonable. The lawyer spent some time reviewing the documents I sent and then advised their client that they did not have a case. I was quite grateful to the lawyer.

  21. Chinookwind*

    As a side note, I find it hilarious that all the ads I am seeing while reading this post are for personal injury lawyers, something I have never googled before. I am thinking that the analytics are loving AAM’s advice because they are even recommending lawyers to contact!

  22. Socratic Method*

    Please do note that not every lawyer is the same, and some will have very different approaches to the same circumstance. It is important to find an attorney who is willing to help you achieve your goal, whatever that might be, rather than try to make a huge case and pump up their fees (which would be paid by the company in certain circumstances, if you prevail at trial). The original proposed wording only works if the attorney (and the employee!) is interested in negotiating an agreement with the employer.

  23. NomadiCat*

    Sorry to respond to this one so late– I’ve been traveling and am just catching up. But I’ve spent much of my career working with early-career professionals and helping them navigate the learning curve of their first professional job, so I have a couple of tips:

    1) Unless you’re working in a VERY fashion forward industry like, well, fashion, or certain segments of the entertainment industry, “professional shorts” aren’t a thing. Plenty of places will SELL you “professional shorts” made out of some kind of suit fabric, with a cute matching jacket to go with it, but professional shorts aren’t a thing.

    2) Following up on #1: people get really weird about clothes at work. A lot of it is totally arbitrary and based on the culture of the department you’re working in. Some areas are more formal than the overall company, some areas are more casual. Plan to over-dress your first week and by then you’ll have enough data to know how to dress to match your coworkers.

    3) You’re going to mess up. That’s what happens when you’re trying anything new for the first time. Do not, EVER, try to hide it and lie about it. If you’re lucky you might get away with it, but for the most part you won’t be experienced enough to really hide it well and then things will snowball and by the time your boss finds out not only will it be a bigger mess than before, but you’ll damage their trust in you by lying about it. Instead, prep a good 4-step apology (see #4), and ask your boss how they want you to fix it.

    4) Master the 4-step apology, because in the course of your professional life you’re going to look like a stronger and more confident person if you can apologize when you screw up than if you bluster or lie about it. Step 1: Apologize and be specific in the way you screwed up (“I’m sorry, I booked your flight for the wrong airport”). Step 2: Acknowledge the impact this had. (“I know this is frustrating and an extra expense for the company.”). Step 4: Confirm that it is either fixed or that you’re going to fix it. (“I’ve already talked to the airline and they’re rebooking you right now.”) Step 3: Say it won’t happen again and, most importantly, give a summary of your exact plan to make sure it doesn’t happen again. (“I’ll make sure this never happens again, I’m going to be building an extra level of verification into to booking process so that I can double check every reservation before booking.”)

    5) Anyone who tells you that experience doesn’t matter is trying to sell you something. This is an impossibly tough thing to accept, especially after you just dropped a whole bunch of money on college and now you’re stuck fixing the copier. But the reason you start out with boring work is to get you the necessary life experience to build up to the really fun and interesting stuff. Find someone who’s about 5 years into their career or the next level up from where you are and figure out how THEY did it.

    Good luck!

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