What is pro bono in employment law?
Pro bono is Latin for ‘for the public good’ and refers to the professional work by lawyers that is rendered voluntarily and without payment or at a reduced fee. Pro bono work cannot, as a rule, create a financial benefit for the lawyer or the firm. Pro bono in employment law encompasses pro bono services offered by organizations and individuals for employment law issues. These services are free of charge and are typically offered to those who otherwise cannot afford legal representation for their employment law needs or wants. Legal representation from pro bono lawyers can be as diverse as the lawyers themselves. Employment law pro bono lawyers can assist business owners with the legal side of starting a new business , representing clients in a case where they feel their rights have been violated, providing counsel in a variety of employment matters, and advocating for individuals. Some general examples include negotiating pay raises, decomposing a non-compete clause, obtaining compensation for unpaid overtime, suing for wrongful termination or discrimination, conducting an investigation into harassment or discrimination claims, securing workers’ compensation benefits, and advising on executive compensation and severance packages.
Who can get pro bono services in employment law?
Determining who qualifies for pro bono employment law assistance requires a careful evaluation based on a range of criteria. The eligibility criteria aim to filter applicants and identify individuals who would truly benefit from these free legal services and who otherwise could not afford them.
The criteria include income and resources. In general, applicants must demonstrate that their financial situation makes it difficult to pay for legal services. This evaluate income level includes a comprehensive assessment of an individual’s financial situation. The guidelines often refer to established federal poverty levels as the general threshold for eligibility, e.g., those with income at or below 135% or 200% of federal poverty guidelines. Of course, this is only general guidance and the income guidelines may vary with different legal services programs outlining diverse standards. Individuals who possess anything that may qualify as significant assets may also fall outside of eligibility. This is often referred to as the "no asset test," meaning an individual could not just scrape by on a low monthly income but also has no significant assets that can be used for obligations such as housing, utilities, groceries, and so forth.
Income, however, is not the sole determining factor and proponents of comprehensive access to justice for all seek to evaluate other circumstances that may affect qualifying standards. Factors to be addressed may include the type of case and whether it is in the client’s best interest and serves the public good for the individual experienced in the area of law at issue to represent the client. In some instances, the area of law may be outside the scope of the volunteer’s or referring lawyer’s regular practice. Consequently, qualifying selection is vested with the sponsoring bar association or pro bono group. Generally, when the pro bono match is completed, non-profit organizations and other agencies with whom people may interact carry out a formal application process. Some agencies may even use their own application forms. Most qualifying applications are reviewed on a case-by-case basis and because there is no formula for acceptance, individuals may need to wait for a response.
What type of employment law cases are covered pro bono?
A wide array of employment law cases are commonly taken on a pro bono basis by skilled lawyers. These can often include claims that involve breaches of federal and state anti-discrimination laws, failure to accommodate disabilities, and wage and hour claims. Pro bono employment lawyers work with both large and small employment law firms and solo practitioners who have experience representing employees in cases against private employers.
For example, issues involving illegal discrimination based on a protected class such as race, national origin, religion, age and disability are common in the context of employment. Discrimination is typically defined as treating someone differently based on a protected class in a protected circumstance, such as in the workplace. Protected classes include race, color, national origin/ethnicity, sex/gender, disability, sexual harassment, pregnancy, religion, and age and labor law violations. The key to bringing a discrimination case is that the employer must have treated the employee less favorably than other(s) similarly situated but of a different protected class. There are various federal, state, and local agencies that have the authority to enforce anti-discrimination laws. These agencies conduct both investigations into discriminatory conduct and administrative hearings.
Wage and hour cases, often known as "wage and hour disputes," involve violations of the Fair Labor Standards Act (FLSA) and/or similar state laws. These include protections such as the right to a minimum wage, overtime and equal pay. The most common violation of wage and hour laws is an employee not being paid overtime when he or she worked more than 40 hours in a week. This type of case may involve only one employee, or it may involve a group of employees whose employer took the same unlawful actions vis-รก-vis their unpaid wages.
Whistleblower retaliation cases are those where an employee suffers an adverse action for complaining about or reporting a violation of a law, rule or regulation. These violations include health and safety violations, violations of wage and hour laws, environmental violations, illegal hiring practices and employer fraud.
How do you get pro bono employment law services?
To find pro bono employment law services, both the National Pro Bono Resource Center and Pro Bono Net offer searchable databases through which you can find a local volunteer opportunity, or look for available networks. These databases are generally built around legal aid societies – with each state having its own list, searchable by legal categories and counties served – as well as national pro bono networks. Within each of these legal aid societies, you can find both vetted resources addressing employment law issues and an attorney finder to identify specific legal resources for your particular needs. Each of the individual states has an organization that they designate as the statewide pro bono support center , and in addition to other resources they may provide to attorneys, these centers have a special service of identifying and matching pro bono opportunities with potential volunteers.
As the names of these organizations imply, national pro bono related organizations may sometimes be a more useful starting point for unemployed individuals than individual state support centers. Indeed, the American Bar Association’s website on Pro Bono and the Access to Justice Resource Center (a service of the National Legal Aid and Defense Association) both include lists of searchable pro bono opportunities.
Finally, National Public Radio has established a database dedicated to helping the public access pro bono legal services from a variety of potential sources.
The benefits of pro bono services in employment law
Pro bono services provide a number of different benefits in the field of employment law. First, pro bono services increase access to justice for low-income workers. Those seeking pro bono assistance must demonstrate an inability to pay for legal services and a prima facie basis for a claim. Unfortunately, many otherwise worthy claims by workers go unpursued because they require more legal assistance than the worker needs to make a prima facie showing or because they require a significant amount of time; thus, many workers are forced to go without legal representation to vindicate valid rights. The availability of pro bono services allows deserving workers to seek justice that many would otherwise be denied.
Second, pro bono services empower the underprivileged. An aware and educated member of the public is a citizen more engaged in the democratic process. This is especially true with regard to workers, as the labor movement has historically been the vanguard for broader social and democratic reforms. By making workers aware of their rights, especially those rights denied to them through improper treatment at the workplace, and by showing them how to vindicate those rights in court, pro bono employment law attorneys have helped many workers become aware of their power to bring about change. This can include changes both in their own situations and in the broader society. Pro bono attorneys can help workers who have suffered violations of their employment rights participate in the larger democratic process.
Third, pro bono employment law work alleviates important burdens shouldered by courts. Unlike many other areas of the law, employment law suits have strict deadlines for the filing of motions, seeking evidence, and other requests. Courts have many functions and limited resources. Without pro bono legal representation for workers in employment law cases, courts would be burdened by increased demands for relief by pro se parties. Additionally, courts are also called upon to act as trial judges in cases where statutory (and thus, subject to appeal) damages must be determined at an evidentiary hearing. These evidentiary hearings can be burdensome for courts and, without counsel representing pro se litigants, the process of determining equitable relief in these cases could be very problematic.
How legal practitioners can help
For those who practice employment law or have an interest in the area, you do not need to wait for your local legal aid office to post a flyer on a bulletin board. If you reach out to the innovative non-profit organizations in your community and across the country, you will be met with a warm welcome. It is not uncommon for an employment law practitioner to take on a pro bono case, but it is also not uncommon to hear of the frustration and inherent difficulties that arise during these cases. Stepping into the role of counselor and defender against wrongful employment practices can be daunting. Dedicated organizations and institutional partners are providing clear direction and support for pro bono collaborators. That support is highlighted in a new publication put out by Pro Bono Net and the National Pro Bono Support Unit. The guide outlines ways that legal professionals can use their skills and expertise to ensure access to justice in employment law practice fields. The guide also provides a roundup of employment law pro bono opportunities and volunteer roles in diverse communities , as well as an overview of national, regional, and local programs. Some of the organizations featured in the guide connect low-income individuals with lawyers who can advise and coach them through their legal proceedings. Others provide advice by phone or email, and there are even programs that provide statewide assistance. What all of these organizations have in common is a deep commitment to ensuring access to justice for all.