Top Ten Reasons to Call Your Employment Attorney

An employment attorney isn’t just for emergencies—they’re a business owners’ best tool for making sure emergencies don’t happen in the first place. Below are the top ten reasons why—and when—you should consult with an employment attorney.

1. Before You Hire.

Misclassifying a worker as exempt vs. non-exempt—or as an independent contractor instead of an employee—can trigger IRS audits, back-tax liability, and wage-and-hour lawsuits along with a host of other legal issues. An attorney ensures you get the classification right from day one.

Example: You hire a graphic designer as a “1099 contractor” who works full-time in your office, uses your equipment, and follows your schedule. The IRS reclassifies her as an employee, and you owe two years of back payroll taxes, penalties, and interest—totaling tens of thousands of dollars.

2. Before You Write (or Rewrite) Your Employee Handbook.

A well-drafted handbook sets clear expectations. A poorly drafted one—or no handbook at all—leaves you exposed to claims you could have prevented with the right policies in place. Do NOT rely on AI – it is frequently wrong and hallucinates or leaves out must-have policies.

Example: An employee posts offensive content on social media, and you want to fire them—but your handbook has no social media policy. Without written guidelines, the employee argues there were no rules to break, and you face an unnecessary hurdle of showing the employee violated a rule that wasn’t actually in place.  This is especially true in unemployment proceedings.

3. Before You Fire.

Even in an at-will state like Iowa, terminating an employee for a discriminatory, retaliatory, or contract-violating reason can land you in court. Think of at-will as a defense, not a shield. An attorney can review the facts, flag risks, and help you document a defensible process before you act. If you do not articulate a reason, you run the risk of being sued. Wrongful termination claims are among the most common employment lawsuits.

It is important to note that at-will does not mean risk-free (the at-will myth)—a short call with counsel before termination can prevent costly claims.  Remember, you can never fire for an illegal reason, even an at-will employee because illegal reasons create liability. There are also common employer assumptions that lead to liability, such as: “we don’t need a reason,” or “we documented it enough.” A 15-minute call with counsel is far cheaper than defending a discrimination or retaliation suit. Build the habit: add a pre-termination legal review as a standard step, not an exception.

Additionally, there are some hidden risk areas to screen for before you fire an employee, including:

• FMLA: recent leave, pending requests, or intermittent leave patterns.

• ADA / illness or disability: accommodation requests, medical leave, or perceived disability.

• ADEA and other protected classes: such as age, race, sex, religion, gender identity, and national origin.

• Retaliation triggers: recent complaints (internal or to an agency), workers’ comp claims, or whistleblower activity.

• Contract, handbook, and policy obligations: progressive discipline, notice, or severance.

A pre-termination call with your attorney can pay off; it is KEY that you identify and document the legitimate, non-discriminatory reason for firing the employee. This call can help you spot timing problems (e.g., termination shortly after protected activity), evaluate severance, releases, and reference strategy; as well as coordinate logistics such as final pay, benefits, return of property, and communications to staff.

A Practical Checklist Before You Pull the Trigger

☐ Has the employee engaged in any protected activity or leave in the last 6–12 months?

☐ Is the documentation consistent with the stated reason for termination?

☐ Have similarly situated employees been treated the same way?

☐ Are there any contractual, handbook, or CBA obligations to satisfy first?

☐ Have you called your employment attorney?

4. Before You Conduct a Reduction in Force.

For Employers who qualify, the Federal WARN Act rules require 60 days’ advance written notice, continued health benefits, or severance pay depending on the size and location of your business.

For Employers who qualify, under Iowa Code § 84C.3, employers planning a business closing or mass layoff must provide written notice at least 30 days before the action takes place.

Violating these rules can result in back pay liability for every affected worker or nonmandatory severance. WARN Act violations carry per-employee financial penalties that add up quickly.

Example: Your company closes a warehouse and lays off 75 workers with one week’s notice. Because you have over 100 employees, the federal WARN Act required 60 days’ notice—and now you owe each of those 75 workers up to 60 days of back pay and benefits.

5. Before You Draft or Sign an Employment Contract.

Non-competes, non-solicitation agreements, confidentiality clauses, and severance packages all require precise language. An overbroad or poorly worded agreement may be struck in part—leaving you with no protection at all. Do NOT rely on AI to write this agreement. 

Courts regularly invalidate restrictive covenants that are not narrowly tailored.

Example: You have your sales manager sign a non-compete that bars her from working in “any sales role, anywhere, for five years.” When she leaves and you try to enforce it, the court throws out the entire agreement as unreasonable—and she goes straight to your biggest competitor with your client list. This agreement is way too broad to be upheld!  Any SALES role, Anywhere, for five years?!?

The courts look at a reasonable restricted area for a reasonable amount of time.  For example: a non-compete could bar the employee for 2 years within a 50-mile radius of where the office the individual worked in was located.

Iowa has a blue pencil approach to reforming the noncompete.

6. Before You Change Employee Benefits or Policies.

Switching health plans, modifying leave policies, or restructuring compensation can implicate ERISA, the ADA, the FMLA, and state-specific regulations of Iowa Code Chapter 216. An attorney can make sure your changes are compliant before they take effect.  Benefit and policy changes touch multiple overlapping regulatory frameworks.

Example: You update your leave policy to cap unpaid leave at 12 weeks, but an employee with a serious health condition requests additional leave as a reasonable accommodation under the ADA. Without engaging in the interactive process or consulting counsel, you deny the request and terminate the employee. The EEOC opens an investigation, and you face potential liability for disability discrimination and failure to accommodate.

7. The Moment You Receive a Lawsuit or Demand Letter.

When a current or former employee sues—or threatens to—time is of the essence. In federal court, you may have as few as 21 days to respond. In Iowa State Court you have 20 days to answer. Missing a deadline can result in a default judgment, meaning you lose without ever presenting your side. Litigation deadlines are unforgiving and a missed response can be outcome-determinative. As soon as you receive notice of a claim, you must also issue a litigation hold to preserve all relevant documents, communications, and electronic data. Failure to preserve evidence can result in court-imposed sanctions, adverse inference instructions, or other serious consequences.

Example: A former employee’s attorney sends you a demand letter on a Friday alleging $50,000 in unpaid overtime under the FLSA. You set it aside to deal with it on Monday. Meanwhile, the 21-day clock to respond to the formal complaint filed the same day is already running—and every day you wait increases your exposure to liquidated (double) damages.

8. The Moment an Employee Files an Administrative Complaint.

EEOC charges, state civil rights complaints with the Iowa Office of Civil Rights, and Department of Labor investigations all carry tight response windows and can escalate quickly. An attorney can prepare your position statement, manage the investigation, and represent you at any hearing. 

Administrative complaints have their own procedural rules and deadlines that differ from court litigation.

Example: A former warehouse worker files an EEOC charge alleging he was fired because of his disability. The EEOC sends you a notice requesting a position statement within 30 days. Without an attorney’s help, your response is incomplete, and the EEOC issues a probable cause finding—giving the employee a stronger hand to negotiate or sue.

9. The Moment an Employee Raises an Internal Complaint.

When an employee reports harassment, discrimination, or safety concerns, you have a legal obligation to investigate promptly. Failing to act—or retaliating against the employee—can turn an internal grievance into a lawsuit. An attorney can guide the investigation and help you avoid making matters worse. Employer liability often hinges on whether the company's response was prompt and adequate.

Example: An employee verbally reports to HR that her supervisor has been making sexually suggestive comments for months. You tell her you’ll “look into it” but take no formal action. Three months later, she sues the company for hostile work environment—and your failure to investigate after being put on notice makes the company directly liable under Title VII.

10. When You Need to Sue an Employee.

Employees who breach non-competes, steal trade secrets, destroy company property, or interfere with your business relationships can cause serious harm. An employment attorney can evaluate your claims, pursue injunctive relief to stop the damage, and recover what you’re owed. Employers sometimes need to go on offense to protect the business.

Example: Your head of sales resigns, and within a week she starts calling your top clients to bring them to her new employer—in direct violation of her non-solicitation agreement. An attorney files for a temporary restraining order within days, stopping the solicitation before you lose key accounts.
 

Have Questions?
Contact Nicole M. Proesch at nproesch@dickinsonbradshaw.com or 515-246-4533.  To contact us or find more information, visit our Employment & Labor practice page. And, for the latest information on Employment Law, follow our Iowa Employer Law Blog.