By Fran Slusarz,
Is it worth it to sue your employer? Answer: Maybe. Oh honey. 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. 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 façade until you deliver a sweet, sweet cold dish of revenge. (Not that I would know, of course. From my first paper route at age 12, I’ve had nothing but affirming and revelatory employment experiences.)
As I was saying, here are the main factors to consider:
Is it Your Current or Former Employer?
Trick question. If you decide to sue your current employer, it will become your former employer when all is said and done. The only possible exception is if you work for the government.
Employment discrimination and whistleblower laws prohibit retaliation for filing complaints/blowing the whistle – what we call “protected activity – but that does not change the two overwhelmingly likely outcomes: (a) your employer will ignore the prohibition against retaliation and will terminate your employment, thereby giving you a new, strong claim against the employer; or (b) ending your employment is part of a settlement agreement.
It is true that your former employer can reinstate you and pay lost wages to resolve your complaint, but it is the Loch Ness monster of remedies: it is in the statutes and very smart people have written much about it. Some claim to know someone who has seen an employer offer reinstatement. Personally, I am skeptical. I’ve never seen it and I have a hard time believing the reinstatement truthers (which is to say, if there were such a thing as ReinstatementTruthers).
As a practical matter, do you think you would be welcome with open arms by the people whose actions caused you to sue your employer? Even if they’re gone, do you want to work along side people who may not like that you complained and think you got someone disciplined or fired? Of course not. And lawyers, for our parts, want any settlement to mean the end of the possibility of history repeating itself. This means the employer pays you to leave.
Bottom line: if you are going to sue your current employer, you must accept that it will become your former employer when all is said and done.
Time, Time, Time
The claim will take longer than you ever thought possible. Even for 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, “When did you get married? I won’t have no preggo dames working for me. You should be home taking care of your husband like a good wife, not taking the space of a deserving man.” This is blatant, over-the-top sexism, pregnancy discrimination, misogyny, presumptuous patriarchal nonsense from 1957, when my momma lost her job as a bank teller because she started “showing.” Easy win, right?
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 because our adversarial court system does not allow it. Generally speaking, we can expect your employer to act rationally and recognize that it is not 1957 and 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.
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 all the attention it needs, someone who takes cases on a contingent fee basis and may not have the time to give your case the 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 in English (or as close as possible). Every automobile accident case is run the same way. The lawyer meets with the potential client and immediately has a good idea of what the case is worth (a multiple of medical costs, usually), whether it will settle and, if so, when it is likely to settle, and whether it will go to trial. She hands the case off to her paralegal to gather medical records and contact 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 is time to file a complaint, writes the complaint from a form, gets the lawyer to sign it, and takes care of getting it filed. And on it goes. The same processes and forms for all cases and predictable outcomes. This means a personal injury attorney can run a successful volume 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 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 the lawyer must be involved every step of the way, cannot delegate running the case to a paralegal, and really should not handle the volume of cases a PI attorney can.
This Will Go Down on Your Permanent Record
Oh, those empty threats from our youth! There is no permanent record telling the world how you cut Italian 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. Hypothetically speaking, of course.
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 a simple Google search. And 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 its all flowers and unicorns and joy. All sizeable companies have had situations arise where an employee behaved badly and a lawsuit 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 consequence 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.
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 least likely to hire an attorney to fight for them, but worth a lot if done to highly paid employees who are more likely to have resources to survive without a regular paycheck and are more likely to hire an attorney.
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/year job at Company X as Social Media Manager, Widgets, because of discrimination, your damages aren’t $50,000/year until you hit 65. Instead, your damages accrue at the same rate as if you were still employed, minus any unemployment you receive, and minus any income you earn from work. If Company Y hires you at $100,000/year as 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 Company X. Your 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 cannot predict when their 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 your attorney fees, but that only comes up after you win at trial. It is very rare that an employer will agree to pay the employee’s attorneys fees as part of a settlement, so you should never add attorney fees reimbursement to your upside. There is hope here, you can deduct attorneys’ fees spent pursuing employment discrimination cases. Click HERE for information about IRS Publication 525 wherein 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.
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 “letting them get away with it,” or will it upset you for a long time that your employer did terrible 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 coworker 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!
Is It Worth It to Sue Your Employer? 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 dispute, please contact Carey & Associates, P.C. at email@example.com