Introduction

The practice of employment law may be attractive to anyone interested in people, personalities, and the dynamics of personal relations at the workplace. Employment law may also be attractive to those who want to use a wide range of legal skills, including trial practice, dispute resolution, drafting contracts, and business planning. For those interested in matters of public interest and legal or social justice, employment law has long been a tool for serving and protecting the disadvantaged and for seeking structural reform.

Employment law also remains a dynamic area because many employment statutes and doctrines are comparatively young, and because employment law tends to be sensitive to shifts in political, social, and moral climate. Employment lawyers must generally be sensitive to trends in the law or the enactment of new statutes and amendments.

Primary Fields of Employment Law

Lawyers practicing employment law may practice in one of a number of subspecialties. Lawyers employed by government agencies tend to practice within only one area at a time, while lawyers in private practice are more likely to practice in many fields simultaneously. Regardless of whether one is practicing in a government agency or private firm, understanding and interacting with numerous administrative agencies will be part of the job. For this reason, coursework in Administrative Law is recommended.

Employment Discrimination

Federal and state laws, and sometimes local ordinances, prohibit discrimination because of protected traits (such as race, gender, or disability) or retaliation because of protected conduct (such as complaining about discrimination). Disability discrimination law is particularly dynamic within this field because of recent changes in the Americans with Disabilities Act. The primary government agency responsible for the administration and enforcement of discrimination law is the Equal Employment Opportunity Commission. However, most discrimination lawsuits are filed by private attorneys.

Other Wrongful Discharge Law

In general, an employer is not required to have “just cause” to terminate an employee as long as the employer does not discriminate illegally or terminate the employee for some other illegal reason. One illegal reason for wrongful discharge is to retaliate against employees who blow the whistle against wrongdoing or who otherwise act in the public interest in a manner causing conflict with their employers. There are a variety of laws on the federal or state level that may protect whistleblowers by creating private causes of action for wrongful discharge. Another illegal reason for discharging an employee occurs when the employee sought or exercised a right, such as the right to certain unpaid leave for family or personal medical reasons, or the right to workers’ compensation benefits in connection with a work-related injury.

Wage and Hour Law

Federal law (and local law in some states) requires an employer’s payment of a “minimum wage” and the payment of an overtime premium for hours worked in excess of forty in one workweek. These rules sound simple, but they are quite complex when applied to myriad workplace situations. Therefore, employers need considerable guidance in designing their compensation and wage payment systems and in managing working time. When employers violate the rules, the effects are sometimes felt by an entire class of employees. Thus, class and “collective” action lawsuits are common in this field. The primary government agency responsible for the administration and enforcement of wage and hour law is the U.S. Department of Labor.

Not all wage disputes are based on the federal minimum wage or overtime laws. Some wage disputes are based on the common law of contracts or a variety of local “wage payment laws” which, for example, prohibit an employer from taking certain deductions from an employee’s pay.

Employee Benefits

Aside from social security and Medicare, pension, medical benefits, and disability benefits are provided primarily through employer-sponsored benefit plans. Such plans are regulated by the Employee Retirement Income Security Act (ERISA). The law is complex, and employers need the assistance of lawyers to design such plans to comply with the law. Moreover, disputes between employee-beneficiaries and plan administrators are common with respect to the amount of benefit due, whether an employee is “disabled,” or whether certain medical procedures are covered by insurance. Such disputes often lead to litigation, mainly in the federal courts. ERISA is covered in South Texas College of Law Houston’s Employee Benefits Law course.

Occupational Safety

Federal law requires employers to provide work and a workplace reasonably free from hazard. The primary law in this regard is the Occupational Safety and Health Act, which is administered by the Department of Law. Employers depend on lawyers to interpret new regulations, advise the employer with respect to government inspections, and present the defense in enforcement proceedings.

Collective Bargaining Law

Employees sometimes form unions to represent them, on a collective basis, in dealing and negotiating with their employer. The primary law regulating collective bargaining in the private sector is the National Labor Relations Act, which is administered and enforced by the National Labor Relations Board. Public employee bargaining is regulated by a variety of federal and state laws and agencies.

Post-Employment Competition by Employees

A particularly dynamic area of the law relates to an employer’s use of contract clauses or “trade secrets” law to prevent employees from engaging in competitive activity if their employment with the employer terminates for any reason. State law generally governs disputes between former employees and employers about competition, and litigation may be in state court or, in diversity cases, in federal court. Trade secret law is covered in STCL Houston’s Trade Secrets & Related Interests course as well as in Trademarks & Unfair Competition.

Primary Job Opportunities

Private Practice Management Side

Many large firms have employment law departments, but many management-side employment lawyers are now moving into small “boutique” firms specializing in employment law. Working in such a firm will involve a combination of litigation and general counseling.

In-House Counsel

Many corporations include at least one employment lawyer, and sometimes several, in their legal department. An in-house counsel provides general employment law advice to the corporation, may be involved in collective bargaining, and will supervise or assist litigation by outside counsel.

Private Practice Plaintiff’s Side

Plaintiff’s-side attorneys generally work in small firms or even solo practice. Their work can be very specialized (e.g., only minimum wage/overtime actions), very broad, or a mixture of employment and non-employment matters. Their work is primarily litigation, arbitration, the processing of administrative complaints, and the negotiation of settlement agreements. Students interested in solo practice or small firms could benefit from coursework in Law Office Management.

Labor Organizations and Public Interest Groups

Unions employ some lawyers in-house, or they refer cases to small labor law firms. Some aspiring plaintiff’s attorneys have been known to work at very low cost or even free for unions early in their careers in order to develop a relationship likely to lead to the referral of other cases.

Government Agencies

The primary employing agencies are the Department of Labor (including the Wage and Hour Division and the Occupational Safety and Health Administration), the Equal Employment Opportunity Commission (EEOC), and the National Labor Relations Board. Through the Government Process Clinic/Academic Internship, students can seek to arrange internships with local, state, or federal government agencies that address labor-related matters.   

Private Dispute Resolution

Many experienced employment lawyers eventually become arbitrators or mediators specializing in employment disputes. Success in this career path demands years of developing a reputation for professionalism and an ability to work well with both management-side and plaintiff’s-side attorneys.

Relevant Skill Set and Related Substantive Coursework

Courses related to trial and appellate practice and advocacy, discovery, remedies, damages, and federal courts are helpful because the practice of employment law normally involves a significant amount of litigation. The litigation is evenly split between state and federal jurisdictions.

Alternative dispute resolution processes are relevant both as a mechanism employed prior to trial and as an often-used method to resolve employment disputes prior to the formal filing of a claim in court. As noted above, new attorneys are unlikely to become mediators, but mediation classes—Representation in Mediation, in particular—cover how to represent clients in mediation, which employment attorneys are more likely to encounter in the early stages of their careers.

Experience in STCL Houston’s Mediation Clinic may also be beneficial because EEOC mediations are typically a component of the clinic. Coursework in Interviewing & Counseling is helpful because, among other reasons, employment lawyers may be involved in investigations of employment-related matters. 

Entertainment Law and Professional Sports Law could also benefit would-be employment lawyers because unionization and collective bargaining are common in each industry. The substantive due process issues covered in Constitutional Law and First Amendment Law are relevant in the public employment setting. Finally, other courses that address particular types of businesses or governments that are likely to confront employment issues are also helpful.

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