Employee Survival Guide® - Is It Worth It to Sue Your Employer?

Starting point is 00:00:00 Hey, it's Mark here, and welcome to the next edition of the Employee Survival Guide. And this week, we're going to talk about the topic of, is it worth to sue your employer? Let's find out. Is it worth to sue your employer? Answer, maybe. You weren't expecting a straight answer from a lawyer, were you? First, this is not a decision for a lawyer to make. We can only show you the door.

Starting point is 00:00:21 You are the one who has to walk through it. Second, there are many things for you to consider before you sue your employer, and you are the only person who can weigh the pros and cons to decide what is best for you. Best for you could be total war, or it could be quietly stewing for years while maintaining a placid facade until you deliver a sweet, sweet, cold dish of revenge. Here are the main factors to consider. Is it your current or former employer? Now that's a trick question. If you decide to sue your current employer, it'll become your former employer when all is said and done. The only possible exception

Starting point is 00:00:56 is if you work for the government. Employment discrimination and whistleblowing laws prohibit retaliation for filing complaints and blowing the whistle, what we call protected activity. But that does not change the two overwhelming likely outcomes here. First, your employer will ignore the prohibition against retaliation and will terminate you no matter what, thereby giving you a new strong claim against your employer. Or two, ending your employment is part of a settlement agreement. That happens a lot of the times. It is true that your former employer can reinstate you and pay lost wages to resolve your complaint. But it's the Loch Ness Monster of all remedies. Frankly, I've never really seen this happen in terms of maybe one time in 25 years.

Starting point is 00:01:38 That's thousands of cases. As a practical matter, do you think you'd be welcomed with open arms by the people whose actions cause you to sue your employer? Even if they're gone, do you want to work alongside people who may not like that you complained and think that you got someone disciplined or fired? Of course not. And lawyers, for our part, want any settlement to mean the end of the possibility of history of repeating itself. This means the employer pays you to leave. Bottom line, if you're going to sue your employer, you must accept that it will become your former employer when all is said and done. Time, time, and more time. The claim will take longer than you

Starting point is 00:02:18 ever thought possible. Even through the most blatant claim, it will take longer than you think. Let's say you tell your boss you are pregnant, and he fires you on the spot saying, quote, when did you get married? I won't have a prego dames working for me. You should be home taking care of your husband like a good wife and not taking the space of deserving a man, end quote. I made that up. This is blatant over-the-top sexism, pregnancy discrimination, misogyny,

Starting point is 00:02:44 presumptuous patriarchal nonsense from 1957. Yes, it is, but the employer still has a right to defend itself. No judge is going to look at your complaint and declare you the winner just because you filed it. We have an adversarial court system that does not allow that outcome. Generally speaking, we can expect your employer to act rationally and recognize that it's not 1957. It will be damaging to the business for the public to find out the ridiculous things spouted by Mr. Dinosaur Bank Manager, but there is no guarantee. The employer could be irrational and spend two years requesting documents and taking depositions to test your stamina and your financial stamina.

Starting point is 00:03:23 Paying the piper. Hiring an employment lawyer to bring your claim is either going to cost money or attention. You may not have a choice, but if you do, you must decide whether to hire someone who charges by the hour and will give your case the attention it needs, someone who takes cases on a contingent fee basis and may not have the time to give your case attention it needs, or someone who does a combination with a lower hourly rate and a piece of your award. Why don't all employment lawyers work on a contingent fee basis like personal injury lawyers? Because the business model is not well adapted to this kind of work. Let me explain.

Starting point is 00:03:59 Every auto accident case is run the same way. Every auto accident case is run the same way. The lawyer meets the potential client and immediately has a good idea of what the case is worth, a.k.a. multiple of medical expenses usually, and whether it will settle, and if so, when it will likely to settle, and whether it will go to trial. She hands the case off to her paralegal to gather medical records and contact the auto insurance companies and submit claims. If there are early settlement negotiations with the insurance company, she gets involved. If not, the paralegal lets her know when it's time

Starting point is 00:04:30 to file a complaint, writes the complaint from a form, and gets the lawyer to sign it, and takes care of getting it filed. And on it goes. The same process is in forms for all cases and predictable outcomes. This means a personal injury attorney can run a successful bottom of business without charging clients by the hour for her time. In employment law, every case is fact intensive. The lawyer has to dig deep into the background of the case to know every fact that is helpful or potential harmful. It is hard to predict when and if cases will settle, and the value of the settlement depends on the client's income and the skill of the attorney to present the facts to the employer in a way that maximizes the employer's perceived risk of the settlement depends on the client's income and the skill of the attorney to present the facts to the employer

Starting point is 00:05:05 in a way that maximizes the employer's perceived risk of the facts becoming public. This means the lawyer must be involved in every step of the way and cannot delegate running the case to a paralegal and really should not handle the volume of cases a PI lawyer can. This will go down in your permanent record, as they say. Oh, those empty threats from our youth. down in your permanent record, as they say. Those empty threats from our youth, there is no permanent record telling the world how you cut Italian class several times per week in favor of breakfast sandwiches because you had an awesome teacher in

Starting point is 00:05:35 junior high, mediocre teachers in high school, and you didn't have to learn anything else to pass the regent's exam. Filing a lawsuit, on the other hand, creates a public record that anyone can find online if they know where to look. If your case is newsworthy, finding your case online can be as simple as a Google search. If you work in a relatively small industry, word of your lawsuit will spread. I don't want to overstate the significance of this, but neither do I want to pretend it's all flowers and unicorns and joy? All sizable companies have situations arise where an employee behaved badly and a lawsuit has resulted. And all sizable companies have had situations arise where something was blown out of proportion and a lawsuit resulted. You just have to accept that bringing a lawsuit against a former employer can have the unintended

Starting point is 00:06:21 consequences of casting you in a negative light to a future employer. Smart employers will dig a little deeper before making a judgment. But not all employers are smart. You've got to know the upside. Damages in employment cases are most often tied to your income. This means the more you earn, the higher your potential damages. This is awful in many ways because the same horrible behavior can be worth little if done to the lowest paid employees who are at least likely to hire an attorney to fight for them, but worth a lot if done to a highly paid employee who are more likely to have resources to survive without a regular paycheck and are more likely to hire an attorney.

Starting point is 00:06:58 This isn't going to change. Damages in employment law are tied to the employee's losses, and the employee's losses are a function of their rate of pay. Employees also have a duty to mitigate damages, meaning you must look for another job and anything you earn will reduce your potential damages from the bad acts of your former employer. For example, if you get fired from your $50,000 a year job at Company X as a social media manager because of discrimination, your damages aren't $50,000 until you hit 65. Instead, your damages accrue at the same rate as if you were still employed, minus any unemployment benefits you receive, and minus any income you earn from work with another employer. $100,000 a year as a senior widgets influencer six months after company X fired you, your damages stop accruing because you are earning more than you would have if you weren't fired by the company X. The maximum damages are the $25,000 you did not earn in the six months you were unemployed. Potential clients usually call us before they have a new job, so they can't predict when their

Starting point is 00:08:03 damages will stop accruing. Still, it is important to understand how damages accrue so you can weigh how long it is likely to take to land a job comparable to the one you lost. This information will tell you the likely upside, so you can decide if you want to fight for it. And how hard. Anti-discrimination laws and some whistleblower laws provide for an award of attorney's fees, but that only comes up after you win a trial. It is very rare that an employee will agree to pay the employee's attorney's fees as part of a settlement, so you should never add attorney's fees reimbursement to your upside. There is hope. You can deduct attorney's fees spent pursuing employment

Starting point is 00:08:40 discrimination cases. The IRS has a publication 525 where you will learn you can deduct the total amount of attorney's fees, whether by judgment or settlement, from the gross income above the line on Form 1040. You should talk to your accountant. Your dignity and sense of justice. Finally, you have to consider how you will feel about yourself if you don't bring the lawsuit. Can you live with it letting them get away with it? Or will it upset you for a long time that your employer did horrible and unlawful things and was never held accountable? I would caution against bringing a lawsuit solely to satisfy a sense of justice. But feeling some vindication after suffering a harm has a healing quality to it.

Starting point is 00:09:20 And that's not nothing. One final note. That manager or co-worker who discriminated against you, well, he, she, they, etc., will have to read every word of your sworn affidavit and complaint. Defense lawyers will require it. Imagine the shame and embarrassment the idiot will feel when doing the required reading. I mean, no one is immune from this sort of payback. There are many factors to weigh before deciding to sue your employer. If you would like more information about the factors

Starting point is 00:09:49 at issue in your employment, please contact Cary & Associates PC on the web at capclaw.com, and have a great week.

Employee Survival Guide® - Is It Worth It to Sue Your Employer?

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