If you believe your employer has discriminated against you, you should talk to an employment lawyer to learn about your rights. But, before you do that, you may want some idea of how much a lawyer will charge you. While attorneys’ fees vary from lawyer to lawyer, this article will give you a sense of what to expect. (For more information about employment discrimination in general, see Employment Discrimination in Your State.)
Under federal law and the laws of most states, it is illegal for an employer to treat an employee differently based on that employee’s protected status. A protected status is a characteristic, category, or trait that is protected by federal or state antidiscrimination laws. Federal antidiscrimination laws prohibit discrimination in employment based on gender (including pregnancy), race, national origin, color, age (employees 40 and older), disability, genetic information, or religion. State antidiscrimination laws may include other protected categories, such as sexual orientation, marital status, or gender identity.
Not all employers are covered by antidiscrimination laws, though. Federal antidiscrimination laws apply only to employers with a certain minimum number of employees (typically 15 or 20, depending on the protected characteristic). Exceptions to the antidiscrimination laws may also apply; for example, religious institutions may be exempt from certain provisions. State laws vary as well. Because there are many complexities to antidiscrimination laws, it is important to talk to an employment lawyer about any potential discrimination claims you may have.
If you believe that your employer has treated you differently based on one or more of these protected statuses, you should talk to an employment lawyer right away. A lawyer can help you figure out if you are protected under state or federal law and, if so, what actions you can take to enforce your rights. To find a lawyer in your area, use Nolo’s lawyer directory.
Employment lawyers may offer a few types of fee arrangements to handle a discrimination case. The agreement you and your lawyer enter into will depend, in part, on the type of services you are seeking.
A lawyer may charge by the hour for certain services, especially those that are limited in time or scope. For example, a lawyer may charge an hourly fee to prepare a wage complaint to file with the state or federal agency that administers antidiscrimination laws. (For more information, see Suing for Harassment or Discrimination.) Some lawyers may also be willing to charge an hourly fee to draft a “demand” letter to the employer to engage in informal settlement discussions. However, because this often involves several rounds of negotiations, a contingent fee is more common for such services (see “Contingent Fees” below).
If a lawyer is willing to charge you by the hour, ask for an estimate of the total number of hours that the lawyer anticipates the work will take. You may also want to see if the lawyer will agree to a cap on the total hourly fees that he or she will charge you.
Hourly fees can be advantageous if the lawyer is able to get a recovery for you with limited work. That way, you can keep the total settlement or award paid by your employer and pay only minimal hourly attorneys’ fees. However, if you want to retain a lawyer for more extensive representation, such as representing you in a lawsuit, you will want to discuss other fee arrangements. Because lawsuits are very time consuming, the hourly fee could quickly turn into tens or even hundreds of thousands of dollars.
If a discrimination lawsuit is the route you’re going to take, you would be wise to discuss a contingent fee arrangement with your lawyer. A contingent fee arrangement is best for individuals who want to sue their employers for discrimination but cannot afford to pay a lawyer by the hour. A contingent fee is an agreed upon percentage of any sums that the lawyer recovers for you in the action, whether by settlement or a jury award. Contingent fees are typically one-third to 40% of your recovery.
With a contingent fee arrangement, you typically won’t owe the lawyer any fees if you lose your case. You may be responsible for paying filing fees and other costs, though. And, some lawyers will ask for a one-time payment (a “retainer”) in addition to the contingent fee so that they receive some compensation for their work even if you lose. Ask the lawyer if the retainer is “refundable” if you win — meaning that if you win your case, the lawyer will take the contingent fee only and return the retainer to you.
You and your lawyer can also agree to a mix of the above arrangements. One possible “hybrid” arrangement is a reduced hourly fee, along with a reduced contingent fee. This arrangement may work for a defined service, such as representation at a mediation before the Equal Employment Opportunity Commission (the federal agency that enforces antidiscrimination laws). This type of agreement may incentivize a lawyer because he or she will get some fees regardless of outcome. It also benefits you because it limits how much you’ll have to pay in hourly fees.
If you win your employment discrimination lawsuit, you may be awarded attorneys’ fees and costs. Your fee agreement may specify that these amounts will be added to your total award to determine the lawyer’s contingent fee. In other words, your lawyer’s final fee may amount to more than the attorneys’ fees awarded by the court.
Like any contract, a fee agreement is negotiable. You can and should discuss any term of the agreement that concerns you or that you would like changed. While the lawyer may not agree to the change, you will be satisfied that you tried to get the best deal possible and that you entered into the agreement voluntarily and will full knowledge of its terms.
To avoid confusion or conflict about the terms of your agreement, make sure it is in writing and signed by you and the lawyer. This will significantly reduce the possibility of a misunderstanding down the road when the case is coming to a close and fees are due.