In this episode of the Employee Survival Guide podcast, Mark discusses whether it is worth it to sue your employer. The discussion covers the factors you will need to consider whether or not to sue your employer, which include the amount of time needed, paying for an hourly vs. contingency attorney, will the suit create a permanent record for new employers, whether or not you mitigated your damages and finding a sense of justice and what that means.
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Transcript:
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Hey, it’s Mark here and welcome to the next edition of the Employee Survival Guide. And this week we are talking abou the topic of is it worth to su your employer? Let’s find out Is it worth to sue you employer? Answer maybe yo weren’t expecting a straigh answer from a lawyer where yo first this is not a decision fo a lawyer to make. We can onl show you the door, you are th one who has to walk through it Second, there are many thing you for you to consider befor you sue your employer. And yo are the only person who ca weigh the pros and cons t decide what is best for you best for you could be total war or it can be quietly stewing fo years while maintaining a placi facade until you deliver sweet, sweet, cold dish o revenge. Here are the mai factors to consider. Is it you current or former employer? No that’s a trick question. If yo decide to sue your curren employer, it will become you former employer when all is sai and done. The only possibl exception is if you work for th government. employmen discrimination an whistleblowing laws prohibi retaliation for filin complaints and blowing th whistle what we call protecte activity. But that does no change the two overwhelmingl likely outcomes here. First your employer will ignore th prohibition against retaliatio and will terminate you no matte what, thereby giving you a ne strong claim against you employer or to ending you employment as part of settlement agreement. Tha happens a lot of the times, i is true that your forme employer can reinstate you an pay lost wages to resolve you complaint. But it’s the Loc Ness Monster of all remedies Frankly, I’ve never really see this happen in terms of mayb one time in 25 years, that’ 1000s of cases. As a practica matter, do you think you’d b welcomed with open arms by th people whose actions cause yo to sue your employer? Even i they’re gone? Do you want t work alongside people who ma not like you complained an think that you got someon disciplined or fired? Of cours not. And lawyers for our part want any settlement to mean th end of the possibility o history of repeating itself This means the employer pays yo to leave. Bottom line. If you’r going to sue your employer, yo must accept that it will becom your former employer when al said and done. Time Time an more time. The claim will tak longer than you ever though possible. Even for the mos blatant claim, it will tak longer than you think. Let’s sa you tell your boss you ar pregnant, and he fires you o the spot saying quote, when di you get married? I won’t have prego dame’s working for me. Yo should be home taking care o your husband like a good wif and not taking the space of deserving man. And quote, I mad that up. This is blatant ove the top sexism, Pregnanc Discrimination, misogyny presumptuous patriarcha nonsense for the 1957. Yes, i is. But the employer still has right to defend itself. No judg is going to look at you complaint declare you the winne just because you filed it. W have an adversarial court syste that does not allow tha outcome. Generally speaking, w can expect your employer to ac rationally and recognize tha it’s not 1957. It will b damaging to the business for th public to find out th ridiculous things spouted by Mr Dinosaur bank manager. But ther is no guarantee the employe could be irrational and spen two years requesting document and taking depositions to tes your stamina, and your financia stamina. Paying the Piper hirin an employment lawyer to brin your claim is either going t cost money or attention, you ma not have a choice. But if yo do, you must decide whether t hire someone who charges by th hour. It will give your case th attention it needs. Someone wh takes cases on a contingent fe basis and may not have the tim to give your case attentio needs or someone who does combination with a lower hourl rate and a piece of your award Why don’t all Employment Lawyer work on contingent fee basi like personal injury lawyers because the business model i not well adapted to this kind o work? Let me explain. Every aut accident case is run the sam way. The lawyer meets th potential client immediately ha a good idea of what the case i worth, aka multiple medica expenses usually, and whether i will settle and if so, whe whenever likely to settle an whether it will go to trial. Sh hands a case off to he paralegal to gather medica records and contact the aut insurance companies and submi claims. If there are earl sudden negotiations with th insurance company, she get involved. If not, the paralega lets her know when it’s time t file a complaint, writes th complaint from a form and get the lawyer to sign it and take care of getting it filed. and o it goes the same processes an forms for all cases an predictable outcomes This means a personal injury attorney can run successful Bama 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 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 facts becoming public. This means a 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 PII lawyer can, this will go down in your permanent record. As I say, those empty threats from our youth, there is no permanent record telling the world how you cut a time class several times per week in favor of breakfast sandwiches because you had an awesome teacher in junior high, mediocre teachers in high school, and you didn’t have to learn anything else to pass the Regents 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 enjoy. All sizable companies have situations arise where an employee behaved badly in a lawsuit has resulted. And all sizeable 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 consequences of casting you in a negative light to a future employer. Smart employers will dig a little deeper before making a judgement. But not all employers are smart, you got to know the upside. damages and 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 are more likely to hire an attorney. This isn’t going to change, damages and employment law are tied to the employees losses, and the employees losses are a function of the rate of pay. Employees also have a duty to mitigate damages. Meaning you must look for another job and anything you learn 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 that 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. If company y hires you at $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 damages will stop accruing. Still, it is important 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 that 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 attorneys fees, but that only comes up after you win a trial. It is very rare that an employee will agree to pay the employees attorneys fees as part of a settlement. So you should never add attorneys fees reimbursement to your upside. There is hope you can deduct attorneys fees spent pursuing employment discrimination cases. The IRS has a publication 525 where you will learn you can deduct the total amount of attorneys 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. And that’s not nothing. One final note that manager or co worker who does discriminate against you. While he or 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 at issue in your employment, please contact Carey& Associates PC on the web at w w.capclaw.com and have a great