That's right, SHAQs. Not the pro basketball player (and New Jersey native!) Shaquille O'Neal, known to all as Shaq. Rather, "Should Have Asked Questions." Not the commonly asked basics that you'll find in most FAQ listings, but important, behind-the-curtain things that you need to know to put yourself in the best position to protect your interests.
- Should I try to negotiate a better severance deal with my employer before going to the trouble and expense of hiring an attorney?
- Should I try to resolve a workplace discrimination or harassment complaint through a federal administrative agency like the EEOC (Equal Employment Opportunity Commission)?
- How will I pay for your services?
- Once I’ve hired an attorney to represent me in my severance negotiation, is it OK for me to continue to work with HR on my benefits and other details of leaving my job?
- How quickly will you deal with my (lawsuit, question, severance agreement, etc.)?
- How much information should I give to my attorney?
Q: Should I try to negotiate a better severance deal with my employer before going to the trouble and expense of hiring an attorney?
A: Well, we can't stop you from trying this, but I wish we could. We've had a few clients try it over the years. Normally they get nowhere, or at best, get an offer of a token increase. That almost always means that, even when an attorney gets involved, it's already too late to persuade the employer to offer a better deal. The negotiation stage is over. You're either stuck with an insufficient offer or heading into litigation mode. That's a lengthy, expensive, and nerve-wracking experience that you'll be living with for the next few years. You wouldn't try to self-diagnose an illness instead of going to a doctor. Your bodily health is too important for that. It's no smarter to try it with your financial and professional health.
Q: Should I try to resolve a workplace discrimination or harassment complaint through a federal administrative agency like the EEOC (Equal Employment Opportunity Commission)?
A: All of you folks in NJ pay special attention to this one. In many states, federal law is the only employment law in effect. And that means you must go through the EEOC because the laws require that you first give the agency a chance to resolve your complaint. Not so in NJ. We have a separate law, called the Law Against Discrimination (LAD), which covers much the same subject matter as the federal laws, but with important twists. First, in New Jersey, there's no requirement to go through a proceeding before an administrative agency—in NJ, the Division on Civil Rights—before you can take your case to court. Second, the remedies available to you under the LAD are usually greater than those under federal law. Chances are that you'll do better in state court. While there are sometimes good reasons to go through the agency process before going to court, make that decision with a qualified employment attorney, not on your own.
Q: How will I pay for your services?
A: Don't ask a lawyer, "What's your hourly rate?" If you're coming to us for help with an employment problem, you're probably uncertain and worried about the future. It's not comfortable to have your income cut off. How will you be able to afford to pay for legal help? For many years hourly billing has been the de facto standard for the legal profession. Sometimes it's a good option for clients, but often it's not. Simple document reviews and an associated conference can be done for a reasonable flat fee. The negotiation of an enhanced severance agreement can be done under a hybrid arrangement that combines a modest flat fee with a reduced contingency fee that is keyed to the amount by which we can enhance the employer's opening offer. In this scenario, we share risk with you and are rewarded for getting you a good result. On appropriate occasions, we may consider taking a lawsuit on a pure contingency fee. So there are options that are designed to make our services affordable for our clients. Please ask us to explain them. Our goal is always to give you the help you need on financial terms that are fair and reasonable for you.
Q: Once I’ve hired an attorney to represent me in my severance negotiation, is it OK for me to continue to work with HR on my benefits and other details of leaving my job?
A: The default answer to this is “NO!” although there may be exceptions. You have hired an attorney for a number of reasons, but a big one is because you’re out of your depth in dealing with the technical parts of ending your employment on the best terms possible. It’s important that your attorney speaks to the employer for you because he is experienced in dealing with these situations and knows how to negotiate. You’re not.
Just as important is the fact that if the negotiation fails and litigation becomes your best option, what you say to HR—they will be keeping records—may inadvertently harm your legal position. Say the wrong thing or something innocuous in the wrong way, and you may hand your ex-employer the torpedo that sinks your lawsuit before it can sail out of port.
Another reason is that what seems to you a mere bureaucratic process that is moving slowly sometimes translates into money lost. If that sounds confusing, an example from real life may help to clarify things. Most employees know that they have COBRA rights to continue health insurance coverage at their own expense after employment ends. The COBRA process requires the employer to give the departing employee information and an application to enroll in COBRA. Until the employer does that, it is liable for the employee’s health insurance premiums. We have seen situations where the employer has failed to send the required information and application. Without consulting with the attorney, the client has gone to HR to demand that the documents be sent. HR corrected its error. The client got her application, but in the process, took a bargaining chip out of her attorney’s hands and cost herself a good bit of money in the form of premiums (usually $1,000 + per month) that her employer would have had to pay if she had not taken matters into her own hands.
While there may be avenues of safe communication as you leave employment, ALWAYS check with your attorney before talking to HR.
Q: How quickly will you deal with my (lawsuit, question, severance agreement, etc.)?
A: All people who come to attorneys are dealing with problems of some sort. All of them are urgent in one way or another, but not all are emergencies. For example, severance agreements are subject to a law that says the employee must be given 21 days (sometimes 45) to review the agreement and consult with counsel. As long as the client seeks legal help soon after getting the proposed agreement, that’s urgent but not an emergency. But consider the situation of the airline pilot who receives an emergency order of revocation of her pilot’s license. The opportunity to challenge the FAA’s order must occur within a handful of days, or the client’s license, along with the career for which she trained and in which she has invested years, will go up in smoke. Now that’s an emergency.
Lawyers, especially trial lawyers, have limited control over their own time. The legal system runs by deadlines. Need to file or respond to a motion? There are court rules that tell you how much time you have. Need to respond to discovery requests? There are time limits for those, dictated by when the attorney for the other side makes her requests. A judge wants a conference on a case? The attorneys have to make the time to be there. Other clients are calling or emailing. Being a trial lawyer is not an orderly existence in which you can sit in an office and set a schedule over which you have complete control.
Therefore, you need to be clear about your expectations from the outset. Most attorneys truly want to be of service to you and deal with your matter quickly, but sometimes life interferes. If you have particular time requirements, hash them out with the attorney before you hire her.
Q: How much information should I give to my attorney?
A: All of it. Everything that could conceivably touch upon the situation for which you have hired the attorney. Clients sometimes hold back information that turns out to be crucial, sometimes because they don’t understand its importance, and sometimes (we suspect) because they don’t want to pay for the time it will take the attorney to review it. Don’t try to make these decisions on your own. If anything, be over-inclusive. The attorney is trained to judge between what is and what is not important. We don’t want cases complicated by irrelevant or trivial things, but you have to tell us everything. We can’t know what you don’t tell us. Sometimes what clients have not told us we haven’t learned about until it was too late. Don’t make that mistake. Tell your attorney everything: the good, the bad, and the ugly.