When Can Employees Sue?
Workers are typically protected under laws regulating minimum work conditions, such as wages, hours and other benefits. Often, when a worker feels an obligation to act but is unable to do so, they can view their employer as a source of compensation for other related concerns. Labor and employment law protects the rights of workers when it comes to the ability to recover those rights. And while the state or federal government or certain nonprofit organizations may advocate on behalf of a worker who has experienced a wide range of illegal treatment from an employer, the ability of an affected employee to take action on their own behalf is crucial to protecting their rights . This is because the government cannot protect employees from discrimination, sexual harassment, wrongful termination, breach of contract and other complaints unless a claim is filed by those employees.
Basic rights employees are entitled to under labor law include:
The government does impose many laws and restrictions on employers, which protect the interests of workers. The purpose of labor and employment law is to ensure that workers are provided with safe, fair and just treatment from employers. These laws also claim the rights of workers when they are punished or discriminated against for asserting their rights in the workplace. If an employer fails to hold up their end of the bargain under labor law, the government can step in and hold the employer accountable.
Common Reasons Employees Do File Suits
The reasons an employee might sue their company can vary, but there are a number of common themes across these different situations. Discrimination and harassment in the workplace are two of the most common reasons an employee will consider suing their employer – the Equal Employment Opportunity Commission recognizes this fact and compiles statistics on workplace harassment.
The vast majority of the claims the EEOC processes are related to harassment in the workplace. In fiscal year 2017, of the 84,254 charges of employment discrimination the EEOC received, an estimated 44,830 were related to workplace harassment. The largest single category? Retaliation.
Discrimination is also a common reason employees choose to sue their employer. Firing or otherwise taking action against an employee because of their age, disability, race, color, religion, sex, genetic information or national origin could result in liability for your organization, depending on the circumstances.
A third common reason behind employees suing their employer is wrongful termination. If an employee has an employment contract that protects them from being terminated without cause and they are fired with no warning, they could have the basis for suing the company. If an employee was about to receive a promotion, benefits, or vacation days and they were let go right beforehand, there could be a case for wrongful termination as well.
Legal Considerations of Filing a Lawsuit
Before an employee can sue their employer and file a lawsuit, there are certain legal criteria the employee must meet and considerations that are needed before filing. First and foremost, an employee should seek out experienced counsel like our team to help you guide on the best course of action. Some preliminary questions include: Fact finding is essential in order for our team to determine how best to proceed, thus we will conduct a free evaluation. There are also time limits within which a lawsuit must be filed, such as a statute of limitations. Depending on what the lawsuit entails, these time limits vary. It is extremely important to meet with our team as soon as possible in order to discuss your specific case and how we can move forward.
Importance of Employment Contracts
The terms of an employment contract will often significantly impact upon the extent to which an employee can sue their employer and the remedies available as a result. Whilst the most common concerns are around release clauses or deed terms requiring the employee to release the company from all future claims, the more important aspect is the actual terms of behaviour and work standards imposed on an employee.
If those terms amount to what we would usually refer to as bullying, then there may be an ability to sue for damages for that bullying. However, if the employment contract allows that type of behaviour to occur (and bullying should not occur) then there may be an ability to sue the company for breach of that contract. This is usually far less successfully run in the USA than it is run in Australia because Australian Employment Contracts tend to have a lot more in them than US employment contracts (the terms are expressly set out in writing more often than not and as a result, issues like bullying are both recognised in contracts and more readily compensated).
Notwithstanding that, it is critical to understand what your contract says in that regard and how it will impact upon the legal right to sue your employer. For example, an employee who signed a contract which required them to provide 6 months’ notice of their intention to resign but failed to do so may need to pay the employer 6 months’ wages in lieu of the notice period. That is not to say that the employee couldn’t sue for other types of damages in relation to their termination or in relation to other issues arising from their employment, but it does indicate that the time period for which damages can accrue as a result of the termination of the contract has been limited.
How to File a Lawsuit Against Your Employer
First, you will want to consider seeking advice from an employment lawyer that handles claims for employee lawsuits or wrongful termination. They should listen to your story and, if they think that you have basis to bring a claim, litigation, or lawsuit against your employer, they would represent you, either on a flat fee basis, contingency basis, or hour fee basis. If you bring a claim for sexual harassment, discrimination or retaliation the lawyers get paid their agreed fee at the end of the case, if you win and more than the agreed fee. If you lose, they do not get paid. They, usually, do not charge you hourly, but instead, work on a percentage of the recovery, usually 1/3 plus expenses (which they have to front). If you paid a retainer, they deduct that from the recovery, and take 1/3 of the remainder. Of course, not all lawyers charge that way, many charge by the hour. You should always go with the attorney that you are most comfortable.
If you decide to proceed, making sure that you are prepared to litigate the matter, you will have to file a claim with the Equal Employment Opportunity Commission, or a state department of Human Resource. The filing must be done in person and you must be prepared to wait. Where you filed will give you a piece of paper verifying that you filed the charge and the timeliness of your filing. In the interim, you cannot pursue legal action.
In most cases, the employer will be given notice of the claim. They will not be pleased and they may hire a lawyer. The Human Resource Department will likely use the information to update their files. They may conduct an internal investigation and make changes if they feel necessary.
After a few months, you can request a Right to Sue letter. In most parts of the country, the letter has to be issued in order to bring legal action. After that, you can proceed by initiating a lawsuit against your employer. At this point, your attorney will file the paperwork and things will be out of your hands. The first step is to file a complaint giving the court notice of your claim. This is then followed by serving it on the defendant, in this case your employer.
After you file the complaint, you are in litigation. You will have to get a lot of documents and records to the attorneys cooperating in the lawsuit. These will include payroll records, hiring records, time cards, training manuals, employee handbooks, policy and procedure manuals, and many other things.
After you get the records, you will likely have a deposition. During it, you are asked questions on the facts of the case. These cover all aspects of your employment and the company, potentially. It is not the end of the case. It is just the beginning. However, that is a complicated process for another article. In the end, you will either be at trial or you will have reached a settlement.
Other Ways to Sue Your Employer
Rather than rushing into a lawsuit, it is worth considering some alternatives. The first and foremost alternative to a lawsuit is often some alternative dispute resolution (ADR) method – namely, mediation or arbitration. There are several types of ADR that you can participate in before or after you file an employment lawsuit.
Mediations are probably the simplest of the alternatives. Mediation is basically a sit down with both parties, their attorneys and a mediator to discuss the possibility of settlement prior to or during litigation. Often times, the attorneys will propose certain numbers and the mediator will try to mediate between the two to arrive at a good middle ground for settlement. Even if you do not reach settlement at this initial mediation, it can be very valuable in determining the other parties’ position in the case to help determine what the most valuable settlement consideration is in an employment lawsuit.
Arbitrations are also a fairly common alternative to litigation. In general , an arbitration is a private process where an arbitrator is hired to act as the judge in the case and essentially decide the case rather than go to court. Municipalities often use arbitrations for employment lawsuits involving claims of wrongful termination, discrimination, retaliation, etc. However, it is important to keep in mind that if you do not have a written contract that explicitly states that your employer has adopted an arbitration policy that applies to all employees and claims, it should not be forced upon you without a choice.
However, in California, if no legitimate arbitration policy has been adopted and you want to seek arbitration, you may be able to request arbitration, but the Court must first determine that arbitration is appropriate in the case before it can be ordered. If your employer either does not have an arbitration policy or arbitration is not deemed appropriate for the case you are involved in, your case will have to proceed through the litigation process.
Risks and Negative Effects
In addition to the financial cost, an employee might end up with some professional consequences. For example, if your employer suspects that you’re suing them, they may take steps to prevent you from working with them in the future. If you have a stock award program, you may find that you are ineligible for those awards until you settle. On top of that, the company may have a right to clawback all awards previously given to you, even if those awards are fully vested. If you wanted to work at another company in the same field, that may be more difficult if you have a non-compete agreement or a non-solicit agreement in place.
Even if you succeed in your case, there is no guarantee that you will ever get your money. It is not uncommon for a judge or jury to find in favor of the employee but for a judge or jury to award an amount that is too low to even pay the legal fees. Even then, there is still the possibility that the employer will not even pay you – forcing you to chase down the money. The wait can be long.
In addition, an employee may find that their own company may hire the same law firm to represent it. Most people don’t understand that once an attorney enters into an attorney-client relationship with individuals, those individuals are considered former clients and have a right to confidentiality. Unless they waive the privilege or otherwise allow the information to be disclosed, their information is confidential. While this doesn’t mean that the other side won’t know what went on, they won’t hear it from the attorney.
The most important question to ask yourself is whether you want to burn bridges with this employer. Even if you win your case, you may find that you have burned all of those bridges and there may be no going back. This isn’t just an issue limited to spite. Sometimes people fail in their case simply because the judge didn’t see things your way. If you have burned that bridge, it can be hard to come back from such a loss. You may have been denied a raise or a bonus. If you had a bonus in cash, maybe they only gave you stock options, which are of less value. If I am going to sue my company, I have to be willing to walk away for good.
Hiring an Attorney Tips
To avoid the risk of wasted time and money, employees should take the time to find affordable representation who will protect their interests. There are national websites that match employees with appropriate employment lawyers (for a fee). Employees should compare experiences with the selected lawyer or firm online and, ideally, in private chats with former clients, if possible. A good lawyer will take the time to "audit" the case before agreeing to take it, so it may be in all involved parties’ best interests to agree on an "engagement letter" before filing an official lawsuit (although this is not required in all cases).
For an employee to have a good chance of winning a lawsuit against an employer, he or she should always hire a lawyer immediately. Even though many lawsuits can be handled pro se in court, success rates in court are higher when an employee has good legal representation.
Successful Examples
There are various cases and situations that have been found in favor of the employer. For example, in Smith v. City of Jackson, et al., the U.S. Supreme Court held that an employee alleging disparate pay to be age discrimination must prove that the policy at issue had adverse impact on the protected class, not just an individual employee.
Similarly, in Massaro v. New York State Department of Health, the Second Circuit found that, under the litigants’ union collective bargaining agreement, if an employee was terminated for refusing to obey a direct order from a supervisor, she was not entitled to lost pay even if the supervisor’s actions were discriminatory in nature .
Additionally, the Fifth Circuit Court of Appeals, in Wells v. New Mexico State Police, held that the New Mexico State Police had a legitimate business reason to terminate a police officer who violated New Mexico law and department protocol by using his police car during a private business meeting.
In Jones v. Crouse Health System the Court of Appeals for the Second Circuit found that a hospital employee could not sue her employer as a whistleblower because there was insufficient evidence in the record to show that the employee reported any wrongdoing on the part of physicians at the hospital.