What does an employment lawyer do?

Employment Lawyer: Basics

An employment lawyer works with his or her clients on interpreting, advising and litigating legal issues concerning work. An employment lawyer can work with both employees and employers, although some employment lawyers choose to work with employees only or employers only. Like some other firms, Dutton Employment Law works with both employees and employers.

Employment lawyers are usually both barristers and solicitors. A barrister is someone who litigates matters (i.e. going to court and arguing). A solicitor is someone who drafts documents or reviews documents (i.e. making employment contracts). Most employment lawyers do a mix of litigating and drafting. This is rather unique; many other kinds of lawyers only do one or the other. For instance, a criminal lawyer generally only litigates. Whereas a corporate lawyer generally only drafts and reviews documents.  

An employment lawyer only works within non-unionized workplaces. On the contrary, a labour lawyer, which is different from an employment lawyer, only works within unionized workplaces. In other words, if the workplace has a collective bargaining agreement (or is in the process of voting on one), then a labour lawyer assists the client. There are special union-side labour law boutique firms, and there are special management-side labour law boutiques. To that end, unlike employment law, most labour law firms work exclusively with employees or employers. The reason for this business choice is grounded in politics, personal choice, and optics. Nevertheless, most employment law firms or employment lawyers at general practice firms work for both employers and employees. Yes, some employment lawyers who appear to exclusively work on management-side issues at mega-firms will actually work with senior, highly paid executives.

• Employment lawyers = employment law.
• Labour lawyers = labour law.

A non-unionized employee is free to hire any employment lawyer they want. However, a unionized employee is privy to a collective agreement saying their union has the sole right to represent them in workplace legal issues. Private legal counsel unaffiliated with the union does not have jurisdiction to represent unionized employees— If an employee is frustrated by the union, hiring their own lawyer is unlikely to provide any benefit. The employee will not only be responsible for paying their own legal fees but the employer will rightly refuse to respond to a unionized employee’s privately hired lawyer. It would very likely be a total waste of money for a unionized employee to hire their own lawyer. Hence, at Dutton Employment Law, we do not represent or advise unionized employees. We are an employment law firm, not a labour law firm.

How much does an employment lawyer cost?

In my experience and based on written literature, In Toronto, almost no employment lawyer charges less than $250 per hour. This amount is usually charged by very junior lawyers at small firms. A lawyer with five years’ experience at mid-sized firms will usually charge $400-$500 per hour. Lawyers with 15+ years’ experience at mid-sized to large firms charge around $800 per hour and up.

Keep in mind that the bigger the firm, usually the higher prices. For example,  an employment lawyer at an international firm with the same experience as a lawyer at a small firm will generally always charge more, perhaps around 30-40% more. This is my experience at least. The overhead to run a large firm is massive. Whereas some small law firms can be run virtually.

Also, some high-profile employment lawyers may charge an amount greater than the average; for instance, I have seen rates as high as $1300 per hour. The lawyers who charge this amount are extremely capable, experienced and regarded. These lawyers usually have 30+ years of experience.

Otherwise, some employee-side employment lawyers do not charge an hourly rate; rather, they charge a contingency fee (i.e. no win no fee). Most contingency rates in the city of Toronto are around 30%. Some lawyers may charge less based on a hybrid model if they secure a deal for the client by a certain earlier stage in the litigation process.

Consultations at an employment law firm cost either free or whatever the hourly charge is for the lawyer doing the first consultation. Some firms may offer a discounted first consultation rate, like $250 for a one-hour consultation instead of the lawyer’s usual hourly rate, which may be $400. It all depends on the firm’s first consultation policy. There is nothing right or wrong about free vs paid consultations. I wrote here about free consultations at employment law firms.

Note that employees and employers can hire an employment law paralegal for cheaper for matters at the Small Claims Court and the Human Rights Tribunal, but not the regular courts. I’ve seen good employment law paralegals charge as little as $100 per hour.

What are some common things an employment lawyer does?

Employment lawyer for employees:

An employment lawyer for employees usually acts as a representative for the employee when negotiating or arguing an issue with the employee’s employer. The most common issue employment lawyers for employees face is dealing with an employee’s termination of employment. To that end, employment lawyers review terminations for:

• Just cause issues
• How much severance is the employee entitled to?
• Human rights issues
• Contract interpretation issues

An employment lawyer for employees also acts a solicitor for employees, reviewing contracts, policies, benefit plans, insurance plans and equity agreements.

In addition, an employment lawyer for employees prosecutes human rights violations on behalf of employees against the employer.

Lastly, an employment lawyer for employees acts as a representative of employees in workplace investigations.

A day for an employment lawyer for employees may involve:

• Having a first consultation with recently dismissed employees
• Writing a demand letter seeking more severance
• Writing a Statement of Claim to launch a wrongful dismissal lawsuit
• Reviewing a termination clause in an employment contract
• Advising on proposed executive employment agreements
• Attending to a workplace investigation meeting or drafting the employee’s side of the story of a particular workplace harassment accusation
• Attending at a court or tribunal in a litigation matter on behalf of the employee
• Attending at mediation to settle a dispute
• Attending at evidence discoveries
• Launching wage based class actions on behalf of all employees at one employer
• Helping a client get unpaid wages through the Ministry of Labour

Employment lawyer for employers:

An employment lawyer for an employer usually acts as a representative for the employer when negotiating or arguing an issue with the employee or his or her lawyer. Again, the most common issue employment lawyers for employers face is dealing with an employee’s termination of employment. To that end, employment lawyers for employers advise their clients on the amount of severance to offer an employee. Likewise, employers will ask their lawyer if they have just cause to terminate an employee without severance.

Employment lawyers for employers also spend a lot of time drafting employment contracts and policies. They also do due diligence for employers in reviewing their employment contracts for a business transaction. For example, let’s say an employer has 1000 employees, and they want to sell the business. An employment lawyer for the purchaser would have to review all the potential liability related to all 1000 of those employees, so the employment lawyer will review all the contracts of all those employees to quantify all the potential employment liability of the transaction.

Not unlike employment lawyers for employees, employment lawyers for employers may do any of the following on any given day:

• Responding to a demand letter seeking more severance
• Writing a Statement of Defense to defend a wrongful dismissal lawsuit
• Drafting a termination clause in an employment contract
• Drafting executive employment agreements
• Drafting equity agreements
• Drafting harassment, discrimination, health and safety and workplace violence policies
• Acting as a workplace investigator
• Attending at a court or tribunal in a litigation matter on behalf of the employer
• Prosecuting employees for breach of restrictive covenants, including non-competition and non-solicitation clauses
• M&A due diligence
• Attending at mediation to settle a dispute
• Attending at evidence discoveries
• Ensuring the client is in compliance with employment standards
• Defending wage class actions

Who works harder? Management-side or employee-side?

It’s tough to say. An employment lawyer working at an international law firm may work a 90 hour week on a big M&A transaction. However, a fledgeling employment lawyer for employees may spend 40 hours doing free consultations and other marketing, and another 50 hours a week doing actual legal work for the clients she was able to bring in that week. In any event, it’s impossible to say for certain who works harder. Some employment lawyers for employees may say it is more difficult to work with employees because the problems their clients are facing are more personal. However, some employment lawyers for employers may say their work is harder because they have to defend the employment documents / policies / advice they are personally attached to because they drafted them, and that their client could terminate them if their work is found to be poorly done. This is especially stressful if it is a big client. Imagine telling your boss you lost your client that was a chartered bank.

Who gets paid more?

I’m of the belief that employment lawyers for employees make more money than employment lawyers for employers. Employment lawyers for employees can work on a contingency fee, meaning they get a percentage of the winnings of their client. For instance, if the lawyer gets the employee a $300,000 annual bonus in court, the lawyer, if she is on a contingency, could be entitled to $100,000 (i.e. 33%). However, the employment lawyer defending the employer in the same lawsuit only gets his weekly salary. That is not to say senior partners at employment law firms for an employer don’t make a lot of money. They do.

A follow-up question is: how much do employment lawyers get paid? It depends on the city. In my experience, and based on written literature, in Toronto, most small firms pay around $65,000 – $85,000 to start. Large firms start at around $100,000. As the years pass by, most lawyers get, I would say, about $10,000 per year extra until year eight when they become a partner (or leave the firm to go in-house at an employer, start their own firm or leave the law altogether). At that point, the partner will make an amount based on the work billed plus the work they brought in billed by others. Partners should make around $250,000 to $500,000 per year, while some might make over $800,000. Nevertheless, some employee-side lawyers can make far more depending on if they were successful on a number of high-stakes contingency matters. Lawyers in smaller cities make less than Toronto. Also keep in mind that in regard to the above numbers, these amounts are salaries, not fees. Lawyers do not make what they charge per hour. That money goes to the firm, not the lawyer unless it is a sole proprietor.

Why do lawyers become employment lawyers?

Most employee-side lawyers are very passionate about social justice, meaning they want to spend their career advocating for worker rights. Others just fell into practice. For example, my first good job offer out of law school was at the Ministry of Labour, so naturally, I turned into a lawyer for workplace issues over time. I guess I just landed into this field. However, I’ve enjoyed it and plan on spending the rest of my career in this area of the law. However, I now do both employee-side and management-side employment law. I don’t have any politics one way or the other.

This is not to say management-side employment lawyers are not passionate about social justice. On the contrary, you can still advance worker rights even if you are a management-side lawyer. After all, these lawyers will be the ones advising an employer on their legal obligations, and thus, they are shaping how the employer treats their employees’ rights. In my experience, no lawyer will advise their client to unlawfully limit their client’s employees’ rights. Rather, they will tell their clients what they must do to abide by the law. Not to mention, terminations, harassment and discrimination happen, yet both sides of the story deserve a voice under the rule of law.

How to become an employment or labour lawyer?

First, go to law school. It doesn’t matter what you did in undergrad. Next, take or indicate to employers that you will take courses to understand the foundation of this area of the law, like employment law, labour law and human rights law. Also consider taking some solicitor classes like corporate law, contract drafting, mergers and acquisitions, etc. Perhaps take some advocacy classes like evidence, trials and mediation. Thereafter, try and get something on your resume that indicates your interest in employment or labour law to separate yourself from the pack. For example, take your essay requirement course in this area, join a legal clinic or related law journal, join a related club or volunteer with some advocacy group. Likewise, try and get a job or internship in your first summer doing something related to employment and labour law. I did an internship at the Toronto District School Board legal office, and that really demonstrated my interest in labour and worker health and safety law. Lastly, try and focus your resume towards one particular side if you are set on joining a union-side firm versus a management-side labour and employment law firm. You want to come across as someone genuinely interested in access to justice or social justice when applying to a union-side firm. I believe politics matters at those firms. With regard to management-side firms, there is less of a requirement for demonstrating your “side”.

If you don’t get a job in labour or employment law after law school, it is easy to transition into this area. Just make sure you have a solid litigation foundation and something on your resume to indicate you have some experience or interest in employment and labour law. Employee-side employment law firms hire general or specialist litigators all the time, especially in years 2-6. Thereafter, you can jump to management-side only or vice-versa at any time in your career, even very late. In fact, one of the older and well regarded employee-side boutiques recently flipped to become management-side only, which became quite a story in our little world.