Non-Attorney Representation: Process & Authorizations
The statutes that authorize Thurgood to represent workers before administrative agencies, and a breakdown of our process from intake to close.
There will never be enough employment lawyers.
Anticipating the demand for justice to surpass the supply of attorneys, Title VII, the ADA, the FLSA, and the OSH Act established systems for redress that sit outside the civil court system. A worker who files charges with an administrative agency is not filing a lawsuit; rather, agencies are directed to try to eliminate unlawful employment practices “by informal methods of conference, conciliation, and persuasion.” The Supreme Court has described cooperation and voluntary compliance as Congress’s “preferred means” of enforcement, with conciliation a precondition to any suit. For the worker, these venues offer greater access to justice by, among other benefits, eliminating the need for counsel.
There are far more workers with potential claims than there are lawyers available to take them. Firms have to choose; declined cases are not automatically weak ones.
| Agency | Cases closed | Not resolved by the agency | Resolved or decided by the agency |
|---|---|---|---|
| EEOCHarassment charges, FY2023 | 29,051 EEOC Table E2a, charge receipts and resolutions by type | 318 Unsuccessful conciliations. The agency found cause but could not obtain relief. | 28,733 — 98.9% Settlements, withdrawals with benefits, successful conciliations, no-cause findings, and administrative closures. |
Administrative agencies resolve or decide the vast majority of employment cases, without the need for further legal action. For the few whose cases can only be resolved in civil court, Thurgood works with law firms to transition such matters to licensed counsel.
Authorization of non-attorney representatives in EEOC, OSHA, and Department of Labor proceedings
Federal administrative proceedings are governed by federal rules. The Administrative Procedure Act authorizes each agency to decide who may appear before it. Sperry v. Florida (1963) established that states do not have jurisdiction over federal proceedings. Where federal authority admits a non-attorney representative, state rules and statutes must yield.
Federal law authorizes agencies to decide who may appear
Under the federal Administrative Procedure Act, a party is entitled to appear “by or with counsel or other duly qualified representative.” The statute does not admit non-attorneys and does not shut them out. The question goes to the agency.
The federal agencies where Thurgood practices explicitly admit non-attorney representatives
- EEOC. A charge “may be made by or on behalf of any person claiming to be aggrieved.” 29 C.F.R. § 1601.7(a)
- OSHA. An employee may “have filed on the employee’s behalf” a retaliation complaint, and the whistleblower program corresponds through a “designated representative.” 29 C.F.R. § 1980.103(a) OSHA CPL 02-03-011
- Department of Labor. “An individual who is not an attorney … may represent a party or subpoenaed witness upon the judge’s approval.” 29 C.F.R. § 18.22(b)(2)
Federal statutes provide for the compensation of non-attorney representatives
While statutes governing the EEOC, OSHA, and the Department of Labor do not address non-attorney compensation, other federal agencies and statutes have set a precedent for the collection of fees in exchange for services.
- Equal Access to Justice Act — recoverable fees include “reasonable attorney or agent fees.” 5 U.S.C. § 504(b)(1)(A)
- Federal Employees’ Compensation Act — claimants may be represented, and the representative is compensated. 5 U.S.C. § 8127 20 C.F.R. § 10.702(a)
- Internal Revenue Code — fee awards reach anyone authorized to practice before the agency. 26 U.S.C. § 7430(c)(3)(A)
State licensing rules do not reach federally authorized practice
In Sperry, the Supreme Court held that states cannot enjoin an authorized non-attorney from practicing before a federal agency.
- A state cannot impose its own licensing requirements on practice within the scope of federal authority.
- That the same work would be the practice of law under state law does not change the result. State rules must yield.
- The Court left the practitioner’s fees undisturbed.
[A State] may not deny to those failing to meet its own qualifications the right to perform the functions within the scope of the federal authority.
State authorization of non-attorney representatives
Each state sets its own terms for who may appear before its civil rights and labor agencies. Thurgood represents state-level claims in thirteen jurisdictions. Everywhere else, the worker’s claim is filed and worked federally.
Where Thurgood represents state-level claims
Thurgood publishes the agency, the filing deadline, the governing statute, and the representation rules for each jurisdiction it works in.
Where a state does not recognize non-attorney representatives
Thurgood files the claim federally. State licensing rules do not govern federal administrative proceedings, and the EEOC, OSHA, and the Department of Labor admit non-attorney representatives in all U.S. states and territories.
Intake
Intake runs through CaseFile, Thurgood’s proprietary evaluation tool. Thurgood maintains the federal and state statutes covering the claims Thurgood handles, and CaseFile compares a worker’s account against them.
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a
How CaseFile works
Workers may select pre-defined options or describe what happened and have the system select options for them. CaseFile records selections and provides related statutory information.
- Questions are tied to statutory requirements. CaseFile does not characterize what the worker reports.
- Evaluation is free, and the worker keeps the result whether or not Thurgood takes the case.
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b
What CaseFile produces
An accounting of the options selected by the user and the associated statutes, requirements, and deadlines.
- CaseFile reports what the statutes require and whether workers have fulfilled each requirement, according to their own assessment. CaseFile does not tell workers what a claim is worth or what to do next.
- CaseFile returns an eligibility assessment. Thurgood uses the assessment to automate approval for consultations; all workers whose claim meets most self-selected requirements are offered a free consultation. The assessment carries no other meaning.
Consultation
A consultation has three purposes: to listen to the worker’s account and provide information about the claim described, to determine whether Thurgood can help through the agencies where Thurgood practices, and to determine who else can help where Thurgood cannot.
- Listen to the account in full
- Provide statutes related to worker-identified claims, and information about what each one requires
- Explain how employers usually respond to a claim of that kind and the arguments they commonly raise
- Provide third-party information and resources where appropriate
- Refer the worker to an attorney where the matter falls outside Thurgood’s areas of focus
- Give legal advice
- Recommend a particular course of action
- Value cases or predict outcomes
Agencies enforce specific statutes, and a good deal of workplace harm falls outside them. Attorneys have further reach — contract and tort claims, wage actions, state common-law claims, and statutes that proceed directly to court — and Thurgood says when a matter falls outside Thurgood’s purview. Where a local administrative agency may have jurisdiction, Thurgood researches the question and reports back.
A consultation ends one of three ways: Thurgood represents the worker, refers the matter to an attorney, or declines and provides information and resources for the worker to review.
Retainer & fees
Representation begins with a limited-scope agreement covering the administrative proceeding. The agreement states that Thurgood is not a law firm and that Thurgood’s representatives are not attorneys.
Terms follow standard employment-law practice: a retainer paid at signing, and a contingency percentage of any recovery, with no contingency fee where there is no recovery. The agreement also allows Thurgood to consult its attorney network where a question warrants an attorney’s opinion.
Where Thurgood places a matter with a firm, Thurgood pays that firm a flat negotiated fee. No firm pays Thurgood, so no legal fee is divided with a non-lawyer under Model Rule 5.4.
Fees for administrative representation are authorized. Sperry left the non-attorney practitioner’s fees undisturbed, and federal fee statutes provide for agent and representative fees.
Pre-filing negotiation
Claims can be resolved before a charge is filed, and many are. The Administrative Procedure Act requires that parties be given the opportunity to submit “offers of settlement, or proposals of adjustment,” and a worker may pursue that resolution through a representative.
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a
The demand letter
Thurgood sends the employer a demand letter setting out the facts as understood by the employee and offering an opportunity to settle the matter privately before further action is taken.
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b
Consulting on the numbers
Thurgood provides information about how employers often discuss and rationalize numbers, and what tends to move them. The worker decides what to ask for.
- Categories of award — lost wages, costs, front pay, emotional distress, punitive damages.
- Comparables — what employers in a similar position have settled for.
- Setting an opening demand and a target settlement — both set by the worker.
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c
Conducting the negotiation
- The worker sets position and tone. Thurgood handles delivery.
- Information moves both ways. Early rounds are an exchange of what each side knows and is prepared to show.
- Context on the employer’s conduct. Thurgood tells the worker how the employer’s responses, timing, and delays compare with what these negotiations normally look like.
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d
The rules Thurgood follows
Thurgood follows the same rules that bind an attorney conducting this negotiation.
- No contact with a represented party except through counsel.
- Every communication identifies Thurgood as a non-attorney representative.
- Settlement authority stays with the worker. Thurgood carries offers and does not accept them.
Drafting & filing
Where a claim does not resolve before filing, Thurgood prepares the agency complaint and the materials filed with it.
- Prima facie structure. The complaint is organized around the elements the agency requires, and each element is accounted for before anything is submitted.
- Evidence. Emails, texts, pay records, schedules, and photographs are placed in the sections of the complaint they support and assembled into an evidence packet.
- Venue. The same facts are written to the requirements of the agency receiving them, whether that is the EEOC, OSHA, a state labor department, or a civil rights commission.
- Gaps. Where the record does not yet reach a requirement, Thurgood identifies the gap and asks the worker for what is missing.
- Drafts. The worker reviews the first draft and every draft after it, and further drafts follow as the worker’s account and documents develop.
- Filing. Thurgood files with the agency and confirms receipt.
Representation before the agency
Once a charge is filed, Thurgood is the worker’s point of contact with the agency and carries the case through to disposition.
- Correspondence. Agency mail, requests, and deadlines come to Thurgood, so nothing is missed while the worker is at work and nothing turns on the worker knowing what a notice means.
- Interviews and fact-finding conferences. Thurgood prepares the worker for what will be asked and what each question is testing.
- Settlement during the case. Agencies invite resolution at several points — mediation early, conciliation after a cause finding. A conciliation agreement “may be signed by the person filing the charge or by the person on whose behalf the charge was filed.” 29 C.F.R. § 1601.24(a)
- Mediation. Thurgood represents the worker in mediation. The EEOC’s program states that “while it is not necessary to have an attorney or other representative in order to participate … either party may choose to do so.” EEOC, Q&A About Mediation
Resolution
An investigation closes one of two ways, and each puts the matter on a different footing.
Right to sue issued
The agency finds no substantial evidence and issues the notice. Thurgood’s representation ends.
- Closing consultation — what the investigation developed, what the notice means, and the period in which suit must be filed.
- The file — delivered to the worker in full.
- End of representation — the worker proceeds alone or with an attorney.
Substantial evidence found
The agency finds substantial evidence. The matter becomes one an employment firm will want.
- Placement. The finding and the developed record go to Thurgood’s attorney network. A file that has already cleared an agency investigation is straightforward to bring to a firm.
- Fee. Under the retainer, Thurgood’s contingency may convert to a flat fee for hours worked plus a reduced contingency, so counsel can be paid without compounding the worker’s cost.
- Cooperation. Thurgood remains custodian of the case record — filings, exhibits, and correspondence — and works with counsel.
- Continuation. Where a jurisdiction permits non-attorney representation at the next stage and no firm is the right fit, Thurgood carries the matter forward.
The Commission’s Office of General Counsel obtained a settlement or favorable judgment in 97% of the merits suits it resolved — 128 of 132.
EEOC, Office of General Counsel FY2024 Annual ReportFacing harassment, retaliation,
or wrongful termination?
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