1. Hiring Decisions and Employment Agreement Architecture
Employment counseling in the hiring phase addresses worker classification and restrictive covenant drafting, the two areas that most often produce costly class action liability.
How Should Employers Classify Workers to Avoid Employee Misclassification Liability?
Misclassifying an employee as an independent contractor exposes the employer to back payroll taxes, unpaid overtime, and per-violation state penalties. Independent contractor agreement counsel must audit every contractor relationship annually against the applicable classification standards, since agencies regularly update the weight given to each factor and a relationship correctly classified three years ago may not survive scrutiny under current standards.
How Should Non-Compete Covenants Be Drafted to Remain Enforceable without Overreaching?
Employment counseling clients should know that a non-compete enforceable in one state may be void in another, since California, North Dakota, Oklahoma, and Minnesota refuse to enforce post-employment non-competes for most employees, while other states enforce them if they protect a legitimate business interest and are geographically reasonable. Employment litigation counsel drafting restrictive covenants must specify the confidential information, customer relationships, or specialized training that the covenant protects, since courts routinely refuse to enforce covenants not anchored to an identifiable protectable interest even when duration and geography are otherwise reasonable.
2. Workplace Compliance and Internal Investigations
Employment counseling in the compliance phase builds investigative procedures and wage and hour audit systems that protect employers before claims reach litigation.
How Should an Employer Conduct an Internal Harassment Investigation to Protect against Liability?
An investigation conducted by a supervisor who reports to the accused, fails to interview key witnesses, or reaches a conclusion before reviewing all evidence will not shield the employer from liability regardless of outcome. Workplace investigations counsel must confirm the investigator has the authority and independence to conduct a credible process.
How Are Flsa Exempt and Non-Exempt Classifications Audited to Prevent Wage and Hour Exposure?
The Fair Labor Standards Act exempts employees from overtime requirements only when they satisfy both a salary threshold and a duties test evaluating whether the employee's primary duties involve executive management, administrative judgment, or professional expertise, and misclassification claims aggregate all employees in the same job category. Wage and hour counsel must compare each exempt employee's actual duties against the regulatory duties tests.
3. Termination Procedures and Severance Management
Employment counseling in the termination phase ensures the employer's documentation supports a legitimate reason for separation and that the severance agreement produces an enforceable release.
How Should an Employer Document Progressive Discipline to Defend against Wrongful Termination Claims?
An employer who terminates for performance or conduct deficiencies must show the deficiency was real, the employee received clear notice of expectations, the standard was applied consistently to similarly situated employees, and the employee had a genuine opportunity to improve. Wrongful termination counsel must also confirm that the termination does not coincide with a protected activity such as a harassment complaint, a workers' compensation claim, or the exercise of FMLA leave, since a temporal connection between protected activity and termination creates a retaliation inference the employer must rebut with evidence of an independent non-retaliatory reason.
How Should a Severance Agreement Be Structured to Obtain a Binding Release of Employment Claims?
A valid release requires consideration beyond amounts already owed and, for employees over forty, must comply with OWBPA requirements including a twenty-one-day review period, a seven-day revocation window, and plain-language disclosure of the rights being waived. Labor laws counsel drafting a severance agreement must confirm that non-disparagement and confidentiality provisions are mutual rather than one-sided where required by current NLRB guidance on protected concerted activity, and that the agreement does not purport to release future claims in a manner that exceeds what courts in the applicable jurisdiction will enforce.
4. Litigation Defense and Labor Relations
Employment counseling in the dispute stage covers EEOC responses, constructive discharge defenses, and collective bargaining obligations arising when employees seek union representation.
How Should an Employer Defend against a Constructive Discharge or Retaliation Claim?
The employer defeats a constructive discharge claim by demonstrating that the complained-of conditions did not rise to the level of objective intolerability and that the employee had available workplace remedies that were not exhausted before resignation. Workplace discrimination counsel responding to an EEOC charge must file a position statement presenting the employer's legitimate non-discriminatory reasons for each employment action, organizing documentary evidence into a coherent narrative, and addressing every factual allegation without volunteering information that could expand the scope of the investigation.
What Legal Obligations Arise When Employees Seek Union Representation or a Collective Agreement?
Once a union is certified the employer must bargain in good faith over mandatory subjects including wages, hours, and working conditions and may not make unilateral changes to those terms while negotiations are ongoing. Labor and employee rights counsel advising an employer facing a union organizing campaign must train managers on the lawful limits of employer speech during the campaign period, since threats, interrogation, promises, or surveillance of union activity expose the employer to unfair labor practice charges that can reverse an election result.
07 Apr, 2026
