When Should You Call Your Lawyer? 

Navigating Complex Scenarios and Legal Crossroads

By Josh Heidelman 

Leaders at Missio Nexus are frequently asked, “When should we contact an attorney?” As US culture continues to shift, the question is being asked all the more, especially in the employment arena.  

As an employment lawyer, I think clients should call every time(!). And while some clients do have firms like mine on speed dial, that isn’t always feasible. So, when should you prioritize calling counsel? Here are three situations. 

Tough Terminations 

You can see it coming. The staff member’s performance has deteriorated, and you’re heading toward termination. Before you get there, consider calling counsel, especially if the person is in a protected class (e.g., gender, age, race). Counsel will help ensure your ducks are in a row and that there are no additional steps to take before termination. Sometimes that call results in not letting the employee go right away. Sometimes it results in offering a severance package in exchange for a release. Sometimes it simply means you proceed but are better prepared for an impending claim. Regardless, a call to your counsel is advisable. 

FMLA or ADA Issues 

Depending on your organization, you may have obligations under the FMLA or the ADA. Navigating the timing of FMLA leave, its impact on other benefits, and your employee’s return to work can be complicated. So, too, under the ADA, when an employee requests an accommodation, you usually must engage in the interactive process regarding whether a reasonable accommodation can be made. These situations are very easy to get wrong, and the specter of litigation looms in the background.  

Doctrinal Alignment Issues 

Finally, more and more organizations are facing current or prospective staff members disclosing disagreement with the organization’s doctrines and/or moral conduct policies. These situations can be extraordinarily difficult to navigate. They call for grace and respect towards the staff member, while also requiring the organization to reckon with its sincerely held religious beliefs, doctrines, policies, and more. Your counsel can help you discern the best path forward. 

These are just a few situations among many others, but hopefully they help as you think about engaging counsel. 

Josh Heidelman is a partner at the law firm of Castañeda + Heidelman LLP. 

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