Washington Lawyer July/August 2026
By Avi Kumin and Elena Rodriguez Anderson
The field of employment law is always changing, but one constant is that employees lose their jobs. This has been especially true in the Washington, D.C., metro area, which lost 54,000 jobs in 2025 due to federal layoffs. These former government employees joined those who worked for private-sector contractors, grantees, and nonprofits affected by federal spending cuts.
Many former employees consult with employment lawyers to seek information on whether a recent termination or experience at their workplace constituted a violation of their rights, and whether they might have a legal claim worth pursuing. When advising people in these situations, employee-side employment lawyers encounter a few typical scenarios.
Three Common Situations
In the first scenario, employees seek advice during a larger layoff, also known as a reduction in force (RIF). The employee may seek out an employment lawyer to review the separation agreement, in which they have been offered a standard severance amount. After thoroughly evaluating the circumstances of the employee's termination and concluding that the termination was truly based on an "at-will" layoff, the lawyer might advise against raising legal claims. Most employees in this situation will need guidance on the import of various provisions in the agreement, such as a confidentiality or nondisparagement provision. They will want to know whether the agreement language warrants any edits and whether the agreement has any major "red flags."
An employee caught in a layoff in which all the terminated employees are provided severance according to a formula often won't have tremendous room to negotiate. But individual circumstances — such as a lengthy tenure, executive status, or outstanding contributions — may open the door to negotiations around certain monetary or nonmonetary terms. In addition, some separation agreements may contain noncompetition or nonsolicitation provisions, or the employee may have signed those sorts of provisions earlier in their employment. In these situations, employment lawyers help their clients understand what they can and cannot do after signing such an agreement.
The second scenario in which employees seek counsel is not during a large layoff but during an individual termination. Depending on the situation, the employee may seek to negotiate monetary terms, including their overall severance amount or the period for employer-paid COBRA. They may also want to negotiate nonmonetary terms in the agreement, such as the length of time they have before separation or whether the employer will provide a positive reference or messaging about their departure. The employment lawyer may also be able to advise as to what items they believe might be negotiable, what they believe to be reasonable "counteroffers" for the employee to make, and how the employee can best present their response. Depending on the situation, lawyers may engage in direct negotiations with the employer or advise the employee behind the scenes.
A third scenario, which comprises the bulk of work on the employee side of employment law, is where the lawyer has reason to believe that the employee's termination was unlawful — that it falls into one of the exceptions to the "at-will" employment doctrine. While the employer may claim a termination due to a purportedly neutral layoff or business decision, the employment lawyer may conclude that this was a pretext for unlawful treatment. Examples of this include discrimination as well as retaliation for reporting concerns about discrimination, for requesting or utilizing a protected right (such as a disability accommodation or Family and Medical Leave Act leave), or for reporting concerns about possible legal violations by the employer ("whistleblower" retaliation).
These claims may fall under federal, state, or D.C. law, with tricky jurisdictional issues sometimes at play. For example, there are dozens of statutes at the federal level alone prohibiting whistleblower retaliation in a variety of industries, companies, and factual scenarios, and certain state whistleblower laws may provide even broader coverage. Attorneys in these cases often send the employer a demand letter to thoroughly present and seek to negotiate their client's legal claims.
If the case does not settle, if a filing deadline is looming, or if the client is not interested in settlement, the lawyer can represent the employee in filing an administrative charge with a state or federal agency such as the Equal Employment Opportunity Commission (EEOC) or the Occupational Safety and Health Administration (which administers many federal whistleblower claims), or file a court complaint or arbitration demand. The course of action often depends on the strength of the claim, the willingness of the employer to negotiate, and the interests of the client.
Issues That Don't Involve Unlawful Treatment
Other legal claims may arise without any unlawful termination, discrimination, or harassment. For example, if the employee was denied a payment promised in their employment agreement, offer letter, or other contract, that could give rise to a breach of contract claim. If the denied payment represented a form of "wages" — which may vary depending on the type of payment and the state in question — it may be covered under state wage payment laws, with higher damages and reimbursement for attorney's fees often available. Denied overtime or other required compensation to hourly and operational employees may give rise to a wage and hour class or collective action.
Finally, many employees seek counsel before they have been terminated. Sometimes an employee has experienced discrimination, sexual harassment, or whistleblower retaliation in the workplace and is trying to best navigate the situation without losing their job. Those actions can, of course, be reported to the employer's human resources department or ethics hotline, but the employee may question whether their employer will take the complaint seriously. Many may reasonably fear that their complaint will result in retaliation or being labeled as a "complainer" seeking to shirk supervision.
An employment lawyer can help advise the employee about their options and the pros and cons of each approach, as well as provide ongoing advice as the situation develops. Alternatively, if the employee feels that they cannot continue working in the discriminatory, harassing, or retaliatory environment and wants to leave, the employment lawyer can help evaluate the strength of their claims and help them negotiate a severance package or settlement in return for their departure.
Finally, some situations call for litigation. If the employee views the employer's settlement position as unreasonable or prioritizes public accountability, or if the case is an issue of public significance where a court ruling is important, a public lawsuit may be warranted.
Current Enforcement Priorities
Several recent developments have affected employees seeking counsel in any of the previously described scenarios. The first is that the federal administrative enforcement landscape has changed for employees with certain claims. For example, EEOC under the Trump administration has publicly stated that it will not process claims on the basis of gender identity, and rescinded comprehensive guidance on harassment claims issued by the Biden administration. The Merit Systems Protection Board and National Labor Relations Board now appear considerably less likely to pursue or approve many employee claims.
More broadly, many employees are now consulting AI platforms such as ChatGPT about their employment situations, coming to an initial consultation with AI-informed opinions about potential legal claims or the worth of their potential case. This can be helpful for an employee to get basic answers and become more educated on the law, but it can also lead to challenges if the employee questions why their employment lawyer's answers do not comport with those they received from AI.
These developments have made it more important than ever for employment attorneys to skillfully navigate their relationships with their clients and with employers' own employment lawyers. Thus, employment attorneys must ensure that they are providing their client with the best legal and strategic advice, using any available tools to help resolve their client's concerns, and are advocating effectively for a satisfactory resolution for their client, both before and during litigation.
Avi Kumin and Elena Rodriguez Anderson are partner and associate, respectively, at Katz Banks Kumin LLP, an employee-side employment law firm with offices in Washington, D.C., New York, Philadelphia, and San Francisco.
