Counter-Intuitive Employment Law: When Should You Tell an Employee to Talk to an Attorney?

When is it in an employer’s interest to tell an employee to talk to an attorney?  Believe it or not, that is sometimes the case.

A common example is when entering a separation agreement and release purporting to release the employee’s rights under Title VII or the Age Discrimination in Employment Act.  In this circumstance, the statutes and the EEOC require an affirmative statement in the release that the employee is advised to seek review of counsel.  Passive language doesn’t work.  In some cases, even statements such as “employee acknowledges that he/she has been advised to seek counsel prior to executing this agreement” have been found by courts to fall short and make for an invalid release.

Another example is when an employee has been named as a co-defendant with the employer in a suit such as a harassment action.  In these circumstances, the interest of the employer and that of the employee may not be aligned and the same attorney may not be able to maintain a privileged and confidential relationship with both parties.  If that is the case, the employee is commonly told to have separate counsel even if counsel’s fees are covered by the employer and/or its insurer under indemnification laws and policies.

Another example occurs when an employee contests a wage garnishment or personnel document subpoena served on the employer by a creditor or in a marital dissolution dispute.  The employer must comply with the law, and it is the employee’s obligation to contest a garnishment or subpoena through his or her own counsel.

Takeaway:  Sometimes an employer needs to tell an employee to seek counsel since that is good protection for the employer.  Talk to your legal counsel to see if you are dealing with such a situation.

About Neal Buethe

Neal Buethe is Head of Briggs and Morgan’s Employment, Benefits and Labor Section. Neal represents professionals, executives, for-profit employers, and non-profit organizations in employment and related matters. He is general counsel to several non-profit corporations, including religious organizations. For Neal’s full bio, click here.

Posted on January 14, 2014, in Litigation, Terminations. Bookmark the permalink. Leave a comment.

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