If you are considering filing a complaint with the federal Department of Labor or suing your employer in court for a violation of the Family and Medical Leave Act (FMLA), you should talk to an experienced employment lawyer. But, especially if you just lost your job, you may be wondering how you'll be able to pay a lawyer to take your case. The good news is that many employment lawyers are willing to take employee cases on a contingency fee basis, which means they are paid only if you win, out of the money your employer is ordered to pay you.
If you were fired or let go after taking medical or disability-related leave, or if your employer violated the FMLA in some other way—for example, by denying your request for leave, not giving you as much time off as you are legally entitled to take, or putting you in a less desirable position when you returned to work—you probably need a lawyer to take legal action.
The concept behind the FMLA—to allow employees to balance work and family or health needs—is relatively simple. Unfortunately, the law is quite a bit more complicated. There are forms to complete, notice requirements to meet, medical certifications, fitness for work exams, and more. There are also some exceptions to the law, situations in which employers may not have to reinstate an employee who takes leave. That's why you will definitely need to consult with a lawyer to figure out whether you have a strong FMLA claim—and hire a lawyer to represent you if you plan to take legal action against your employer.
The first check you write to a lawyer in your FMLA case will likely be for your initial consultation: your first meeting with the lawyer to explain what happened, hear what the lawyer thinks of your claims and how you should proceed, and decide whether you want to hire the lawyer to represent you. Some attorneys don't charge for an initial consultation, especially if it is brief. Many do charge, however, so you should definitely ask about this when you call to make your appointment. Some lawyers charge a set rate no matter how long the meeting takes, others charge an hourly fee (which may be less than their usual hourly rate).
If you and the lawyer decide to work together, you should ask about how the attorney's fees will be handled. Remember, fees are negotiable. Just like when you hire a plumber, accountant, or other professional service provider, you don't have to agree to the first price you hear. The lawyer may or may not be willing to reduce the fee or agree to a different arrangement. But you have the right to ask, and to shop around.
The two most common ways employment lawyers charge for their services are by contingency fees or hourly fees.
In a contingency fee arrangement, your attorney will take a percentage of what your employer pays you for your claims, whether to settle the dispute or as a court award. (Learn more about what you can win in an FMLA case.) This means the attorney is paid only if you win. Typically, the percentage increases as the attorney's time and work increases. For example, an attorney may take 25% of any settlement negotiated before a lawsuit is filed, 33% of any settlement negotiated after the filing of a lawsuit, and, once a trial date grows near, 40% of any amount negotiated or awarded by the court in a trial.
The significant benefit of a contingency fee arrangement is that you don't have pay your attorney up front to take on your case. You may have to pay costs (for example, court filing fees, copying expenses, and so on) as the case moves forward, however. A contingency fee also gives your attorney a significant incentive to get as much money for your claims as possible; the more you get, the more your attorney is paid.
In an hourly fee arrangement, your attorney will keep track of all time worked on your case and bill you by the hour. The attorney should be able to give you an estimate of how many total hours your case will take. You should have a written fee agreement that should spell out the attorney's hourly fee and the hourly fee for anyone else who might work on your case (for example, a paralegal). Your fee arrangement should provide for monthly billing updates, so you know how much time is being spent on your case and what you are paying for it.
If you are planning a lawsuit against your employer, you almost certainly won't want an hourly fee arrangement. You could quickly spend more than your case is worth, with no guarantee of the outcome. However, if you need only limited legal work, hourly fees make more sense. For example, if your employer has agreed to give you a severance package, and you want an attorney to assess your claims and try to negotiate a better deal, paying by the hour may be cheaper than a contingency fee.
Like many other laws intended to protect employees, the FMLA allows the court to order your employer to pay your attorneys' fees, if you win your lawsuit. For an attorney fee award, your lawyer will add up all hours worked on your case and then ask the court to award the attorney's usual hourly fee for those hours. Your employer might dispute the hours worked, the attorney's hourly rate, or both. At some point, the court will order your employer to pay you the amount it determines is fair.
Your fee agreement with your attorney will determine how the fee award is handled. Your lawyer might not get the actual amount of the attorney fee award. If you have a contingency fee deal with your lawyer, it may call for this attorney fee award to be added to the rest of what you won in the case, then multiplied by the fee percentage you agreed to, to come up with the final attorney fee amount. This means the lawyer may actually get more than the amount awarded by the court for attorney fees, depending on the circumstances.