If you’ve been laid off or fired, you may be entitled to unemployment insurance benefits. If your separation from your employer was straightforward, for example you were laid off due to downsizing, you probably don’t need a lawyer to file for unemployment benefits. However, if the circumstances surrounding your separation were complicated, or you’ve already applied for unemployment benefits and been denied, you may want to hire a lawyer to represent you. This article discusses what you can expect a lawyer to charge you in an unemployment case.
Every state offers unemployment benefits to eligible employees who are out of work through no fault of their own. To be eligible for unemployment benefits in most states, the applicant must have worked a certain number of hours, or earned a certain amount in wages, prior to losing his or her job. The applicant must also be out of work without fault, meaning that he or she was laid off, was fired for something other than misconduct, or quit for good cause. (What qualifies as misconduct or good cause depends on how each state defines those terms.)
In addition to meeting these eligibility requirements, the applicant must be available to work and actively searching for another job. The amount and duration of unemployment benefits vary from state to state. And, each state establishes its own procedure for appealing a denial of unemployment benefits. (For information, including eligibility requirements and benefit amounts in your state, see Collecting Unemployment Benefits.)
Filing for unemployment benefits is usually a relatively straightforward procedure. In most states, you can file your claim online. Check your state’s unemployment insurance agency to find out how to apply. If you were laid off from your job, you probably don’t need to consult with a lawyer about applying for benefits. However, some situations present issues that are more complicated. For example, if your state allows you to file for benefits if you resigned for “good cause,” you may want to find out if quitting to care for an ill family member qualifies as “good cause.” Or, if you were fired for being late to work, you may want to know if this qualifies as “misconduct,” which would disqualify you from receiving benefits. An employment lawyer in your state will be able to answer these kinds of questions.
You may have already filed and received a denial of benefits from your state unemployment insurance agency. If you are considering appealing this decision, you may want to hire a lawyer to represent you in the appeal. An appeal of an unemployment insurance denial may involve a hearing before an administrative law judge and could even result in a filing with the superior court. Your former employer will likely have its own lawyer’s assistance at this stage (and perhaps at earlier stages, too), which can involve preparing a “writ” (a written request to the court with supporting case law and citations to the record of the hearing before the administrative law judge). Although unemployment appeal hearings are less formal than court proceedings, your chances of winning your appeal are greater if you have legal advice.
If you believe that an employer has retaliated against you for filing for unemployment (such as a potential employer refusing to hire you), you may have grounds for a legal claim against that employer depending on the law in your state. This type of claim may be more involved than simply filing for unemployment because it can result in a lawsuit. And, it may entitle you to an award of attorneys’ fees if you win. Not every state recognizes this type of retaliation claim. However, some states protect an employee’s right to seek information about unemployment benefits and prohibit employers from retaliating against them for doing so.
Attorneys you contact may offer several different fee arrangement options to represent you. For example, an attorney may agree to charge you by the hour, or he or she may agree to accept a percentage of any amounts recovered on your behalf.
If you simply want to ask a lawyer questions about the unemployment process, or receive behind-the-scenes guidance, a lawyer may be willing to consult for an hourly fee. Because the application process is relatively straightforward and doesn’t necessarily require ongoing legal representation, an hourly arrangement for this service may be appropriate. A lawyer may also be willing to represent you in an appeal of a denial of unemployment benefits on an hourly basis, too. Ask the lawyer in advance what his or her hourly rate is and how many hours the lawyer estimates it will take to advise you through the application processor take on your appeal.
If you believe that an employer has retaliated against you for filing for unemployment in the past, you may be contemplating more involved and lengthy legal representation. An hourly fee can quickly add up to more than you are able to pay. If you are seeking this type of representation, other fee arrangements should be discussed.
A contingent fee is an agreed percentage (usually ranging from one-third to 40%) of the total amount recovered in the action, whether awarded in court or through a settlement. This arrangement means that you won’t pay the lawyer any fees unless your lawyer recovers some money on your behalf. However, your lawyer might ask for a retainer fee in addition to the contingent fee, in order to guarantee him or her some fees in the event that you lose your case. The amount of the retainer is agreed upon between you and your lawyer.
Where your state’s unemployment insurance law provides for an award of penalties or attorneys’ fees for certain conduct by the employer (such as retaliation by an employer because you have previously filed for benefits), a contingent fee arrangement with your lawyer may make sense. Because of the potential for a bigger award, a lawyer may be incentivized to take the case on a contingent fee basis. And, this will relieve you of the obligation to pay hourly fees for the many hours of representation that a retaliation claim would likely take.
If you win your case, any penalties and attorneys’ fees awarded by the court would be added to your total award. The lawyer’s percentage would then be taken out of the total award. In other words, the lawyer’s cut may amount to more than the attorneys’ fees awarded by the court.
An attorney fee agreement is a contract between you and your lawyer. As when entering any contract, you can and should consider negotiating the terms. Ask the lawyer to tell you all of the fee alternatives that he or she would consider for the services that you are contemplating. Then you can make a proposal and try to get the best arrangement.
In general, attorneys are required to commit fee arrangements with clients to writing. However, if your attorney does not give you a written fee agreement with all of the terms you have agreed to, ask for the lawyer to put it in writing. Make sure the agreement accurately reflects the fee agreement you reached, and ask for a copy for your records.