You Do Not Have The Right To Remain Silent, You Do Not Have The Right To An Attorney — The Nonexistent Right To Counsel In Employment Matters

Think you always have the right to talk to an attorney before signing something your employer hands you?  Think you always have the right to hire an attorney to challenge a disciplinary decision that your employer makes about you?  Think you always have the right to have an attorney present during a meeting with your employer about a personnel issue?  Think again.

A common area of misperception in the employment rights context is employees’ belief that they always “have a right to talk to a lawyer” before (fill in the blank) or “get a lawyer to” (fill in the blank).  Wrong.  In truth, the Iowa Supreme Court has never determined that such a general right exists in Iowa.  There are narrow exceptions, as summarized below, but in general there are no legal rights concerning most employment decisions, including having legal counsel involved in a personnel or employment matter.

Most recently, in the April 2013 case of Jyll M. Newell v. JDS Holdings, L.L.C., the Iowa Court of Appeals ruled against an employee who claimed that she was fired in retaliation for consulting with an attorney about employment matters, including whether to sign a form acknowledging receipt of an employee handbook.  The court questioned whether there was a protected right to consult with an attorney under such circumstances.

The Iowa Supreme Court also considered this issue in the 2003 case of Davis v. Horton.  That employee claimed she was fired in retaliation for hiring an attorney to challenge a disciplinary suspension imposed by her employer.  The Iowa Supreme Court disagreed and fired a warning shot across the bow of employees who think that they have an absolute right to hire counsel to challenge an employer’s disciplinary decision:  “On the facts of the present dispute it is clearly impossible to separate Davis’s act in hiring an attorney from her act in challenging a personnel decision made by her employer. Because an at-will employee may expect an adverse reaction to an attempted rebuke of an employer’s personnel decision, that act should not be insulated from sanction merely because it has been carried out through an attorney.

My reading of the current caselaw in Iowa is that consulting or threatening to consult an attorney is the only activity that’s possibly protected from retaliation.  The Iowa Supreme Court has yet to answer that question.  But, even if a right to consult legal counsel in basic employment matters is ever recognized, it’s probably a mostly empty right.  That’s because Iowa law presently holds that generally, lawyer or no lawyer, employees can be lawfully fired for challenging an employer’s decision or failing to follow an employer’s instructions.  So hiring a lawyer doesn’t do much good since, as in the Davis case noted above, anything that attorney does for you in relation to your employer can get you fired.  So you might have a right to consult an attorney, but you don’t have a right to follow the attorney’s recommendations or actually use the attorney in any manner, which makes consulting an attorney useless.

Of course, there are narrow exceptions to those rules, but those exceptions usually arise in the context of some state or federal statutory right, for example civil rights, wage and overtime, or workers compensation laws.  Employees need to be careful about how they handle common employment/personnel matters that don’t fall within one of the state or federal statutory areas that get courts excited.  The great majority of personnel decisions or instructions cannot legally be challenged without fear of reprisal.

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