EMPLOYMENT LAW: WHAT TO EXPECT?

As a fifth year student anxiously waiting to be placed, receiving a call from one of the Tier-1 firms that I had been selected was an amazing feeling. However, I was chosen for the employment law team and I had no clue what employment law practice consisted of at that point of time. With time the popularity of employment law as a corporate advisory field and also as an integral part of many transactions has increased. However, still there are a large number of students who are not even aware of the existence of this area of practice.

Employment law as the name suggests encompasses the wide gamut of labour laws (a subject we conveniently disregard in college, in favour of the much more glamorous sounding corporate laws). The following are some of the ways in which employment law is practiced and used:

a) Corporate Advisory: Big companies often need advice pertaining to their payouts, interpretation of laws, application of laws, compliances, dismissal related enquiries, sexual harassment claims etc. This requires an employment lawyer to draft an advisory opinion. Typically, an advisory opinion consists of stating the facts given, bringing to the fore the main issue, explaining the legal regime around this issue and finally giving your opinion supported by case laws, in the factual context. A crisp, to the point opinion, which squarely addresses all the queries of the client is considered effective. Always understand your target audience before you draft anything. Your client may be a layman, hence explain how and why a particular law applies to his/her organisation, what are the potential risks and liabilities, how these risks may be mitigated etc.

b) Transactions/Due Diligence: Another area, where employment lawyers are required are due diligence exercises during transactions. Typically in M&A transactions, the buyer wants to run a due diligence over the target company. This inter alia also involves conducting a due diligence of their compliance with employment or labour laws. This includes perusing through the target company's documentation and records which evidence compliance with various labour laws. In order to be adept at this, one needs to know what are the essential compliances required for the purposes of labour laws. Some laws also expose the organisations to penal liabilities and hence, an effective labour due diligence becomes necessary. Sometimes, as apart of a transaction, employees may be transferred from old to new organisation or may come under new management. In such circumstances, corporates may also additionally ask for advisory opinions.

c) Employment law litigation: Litigation is another area where employment lawyers can make their practice thrive. Disputes pertaining to unfair dismissal, non compete clauses, sexual harassment, retrenchment etc. are a common affair. Employment lawyers need to guide their clients on the way forward and contest their claims.

d) In-house employment law work: Many corporates have their own in-house employment law teams, which guide the corporate through employment law claims, coordinate with counsels in case of any litigation and also render advisory services. For a company to have an effective in-house employment law team is cost effective.

e) Employment law documentation: One of the most important aspects of employment law practice is the framing of HR policies including sexual harassment policies and drafting of appointment letters, employment contracts, separation agreements, termination letters etc. It is pertinent that you draft these documents well in order to avert future disputes.

Employment law is a very confounding area of practice to many. However, it provides the scope of doing a lot with a limited set of laws. Moreover, employment claims are a common everyday thing. A litigating employment lawyer, with the right marketing skills may be able to land himself a decent array of cases. What one needs to keep in mind though is that:

• basic concepts should be clear. Definitions of all key terms such as workmen, employee, wages etc. should not only be learnt but also be understood properly.
• Applicability of each law is different and depends either on the number of employees or the wage threshold. Before discussing all laws blindly, one should always check for the applicability of each law.
• Prepare a set of laws and arrange all the documents available with you in accordance with those laws while conducting due diligence. This will make the exercise structured and easier.

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