Garrison Law partner Joshua Goodbaum and associate Jordan Wheeler recently published an article in the American Bar Association’s digital publication After the Bar, which is designed to guide newer lawyers through the early stages of their careers. The article – “How to Become an Employment Lawyer” – provides insight into employment law as a field as well as steps junior lawyers can take to pursue a successful practice in employment law.
The full text of their article appears below.
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The employer-employee relationship provides a seemingly never-ending source of disagreement, tension, and even conflict – in other words, all the stuff of fraught legal drama. This personal aspect to the practice of employment law is one of the reasons many employment lawyers find their work gratifying. If that sounds interesting, and you are thinking about a future as an employment lawyer, here are some facets of the practice that are worth your consideration.
Employment Law Is Not the Same as Labor Law
You’ve probably heard the term “labor and employment law.” (It’s even the name of the ABA’s relevant section: the “Labor & Employment Law Section.”) Although both “labor law” and “employment law” deal with workplace relationships, they are not interchangeable. “Employment law” concerns the relationship between employees and their employers. “Labor law,” in contrast, concerns the relationship between businesses and labor unions (such as the AFL-CIO or SEIU). In “employment law,” the individual employee has rights; in “labor law,” for the most part, the employee has rights only through the union in which they are a member.
Some lawyers do both “employment law” and “labor law.” But we are employment lawyers, not labor lawyers, so that’s where we focus in this article.
Representing Employees or Management
Some employment lawyers will represent any client with a genuine employment law problem – whether employee or employer. But most employment lawyers exclusively represent either employees or employers, which employment lawyers call “management.”
Employee-side lawyers tend to have one-off relationships with their clients. An employee consults a lawyer about a problem; the lawyer helps solve the problem; and then the employee moves on – hopefully never to need an employment lawyer again!
Management-side lawyers tend to have longer-term, institutional relationships with their clients. Many large companies have retainers with one or more law firms that help them with all their employment law matters. The relationships might vary from state by state – a company has one firm in New York and another in California, say – or the relationships might be national or even international in scope.
Subspecialization
Within the broader field of employment law, many lawyers develop subspecialties.
One common subspecialty is discrimination or retaliation, including sexual and other forms of harassment. The federal statutes implicated by this subspeciality include Title VII of the Civil Right Act of 1964, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the Family and Medical Leave Act. (Many states and municipalities have similar statutes, often with slight variations.)
Another common subspecialty is “wage and hour.” Wage and hour issues often arise under the Fair Labor Standards Act (FLSA), which is a federal statute that prescribes who is (and is not) entitled to be paid the minimum wage and creates exemptions from the mandate that all workers be paid overtime – that is, time-and-a-half for all hours worked over 40 in a week. Wage and hour issues also frequently arise under the laws of particular states (especially California, which has notoriously strict wage and hour laws) or of municipalities, because the FLSA only creates a floor for employee rights, not a ceiling.
Other employment law subspecialities include: restrictive covenants or unfair competition (such as agreements not to compete with a former employer or solicit a former employer’s customers or employees); whistleblower cases (for example, under the federal False Claims Act); workplace safety cases (for example, under the federal Occupational Safety and Health Act); and unemployment compensation disputes (which arise under each state’s particular unemployment benefits system).
Employment Law Can Involve Litigation and/or Counseling
Another divide among employment lawyers involves the type of work they do.
Some employment lawyers might only counsel their clients. They draft handbooks, present trainings, ensure compliance, and negotiate contracts. These lawyers tend to be on the management side, although there are some employee-side lawyers – primarily in large cities – who specialize in counseling highly-compensated executives and professionals about how to structure their employment relationships.
Other employment lawyers might only handle disputes. They prosecute or defend cases, whether in court, arbitration, or administrative agencies. Among these litigators, some specialize in single-employee cases, whereas others work primarily on class, collective, or mass actions (where a number of employees have banded together to sue one or more employers).
Many employment lawyers inhabit both worlds – that is, they are both counselors and litigators.
Practice Settings Can Differ
Finally, employment lawyers practice law in a variety of settings, including law firms, in-house, government, and non-profits.
Perhaps the most familiar practice setting is the law firm, where one or more lawyers are hired by clients to represent them for specific matters and paid for the work they do (whether on an hourly, contingent, flat fee, or some other basis). Some law firms are general service firms, meaning they try to provide a full spectrum of legal services to their clients, including employment law. Other law firms practice employment law exclusively.
Other employment lawyers practice “in house.” This means that they are employed – usually full-time – by the employers they represent. These lawyers often begin their legal careers in law firms before transitioning to an in-house setting. Almost every large company has at least one in-house employment lawyer; the largest companies have many.
Lawyers who work in law firms or in-house are usually said to work in the “private sector.” Other employment lawyers work in the “public sector.” These lawyers might work for the government – for example, the U.S. Equal Employment Opportunity Commission (EEOC) or one of its many state-level corollaries. Or they might work for non-profit organizations that seek to advance civil rights, such as the AARP Foundation, the NAACP Legal Defense Fund, or Lambda Legal.
Final Tips
If you are a newer lawyer interested in employment law, here are some steps you might consider:
- Seek positions that will maximize your exposure to employment law work and allow you to engage with employment laws regularly, including working for the EEOC or state-level agencies, working for a law firm with an employment law practice, or working in-house at a company that will funnel employment work your way;
- Look out for conferences (nationwide or closer to home) that will allow you to connect with employment lawyers and stay current on employment law;
- Attend as many ABA, state, and local bar association events as possible. Becoming a familiar face that attorneys recognize as having an interest in employment law will help establish your reputation in the field, and also set you apart when applying for future opportunities;
- Seek out mentors both inside and outside your workplace. Internal colleagues can help guide your work and skills on a daily basis, and external colleagues can help support your career development.
Overall, remember to be creative about how to accomplish your goals. Everyone’s path to becoming an employment lawyer looks a little different. Whether you stumble into the field or you’ve known since 1L year that this is the practice area for you, the new challenges that every day presents mean that employment law is a specialty in which a wide range of lawyers can find satisfaction.