Wednesday, April 8, 2015

Justice for All: Workplace Law and the Undocumented Worker

I recently gave a talk to a group of soon-to-be college graduates about workplace law. I gave them an outline of at-will employment, anti-discrimination laws, and non-compete issues. I told them about laws relating to wages, and how California jealously protects the wages of its workers.

One student raised her hand and asked me, "I am not a United States citizen. Do the laws still protect me?"

I was proud to answer "yes" to her question.

1. Employees include *all* employees in California

California law explicitly states that all of the provisions of its Labor Code apply to "all individuals regardless of immigration status." See Ca. Lab. Code §1171.5(a).

That an important statement. That means that even employees who do not have the legal right to work in the US cannot be denied their wages after earning them. In other words, an employer can't hire someone, have them work, and then not pay them.

Undocumented workers are subjected to wage theft more than other employees, primarily because of their vulnerable position. One study from 2008 showed that more than a quarter of undocumented workers are paid below the minimum wage, with 60% of them being shorted by $1 or more an hour. Of those who work overtime, 3/4 of them did not get paid overtime wages.

About 40% of undocumented workers in this study had illegal deductions taken from their pay. Imagine working a minimum wage job in, say, a restaurant, and having to pay for a customer who skipped out on the bill. See

California employment law protects *all* employees, meaning it extends to everyone, regardless of how they came to this country.

2. Employers cannot threaten an employee because of that person's immigration status

One of the reasons undocumented workers fall prey to illegal business practices is because of their vulnerability. Frequently, employers know that the person they hired is undocumented, and pay them less than minimum wage or illegally deduct from their paychecks, believing that the employee has no recourse. Sometimes, the employer will threaten the employee with reporting that person to the government.

California law no longer allows its employees to be threatened this way. It is illegal to threaten an employee with a report to the government about that person's immigration status.

3. Employees have recourse

The California Department of Industrial Relations has a procedure to address wage theft. Although it accommodates anyone, it is particularly designed for low-wage workers. Undocumented workers have equal access to this process. A report to the DIR's Division of Labor Standards Enforcement will get the ball rolling. You can find your local office here:

Sometimes, especially in higher value cases or class actions, it may make more sense to sue by using a private attorney. California law also makes it illegal to ask a party to a lawsuit about their immigration status, unless doing so is necessary for the case by a showing of clear and convincing evidence.

No one should have to work without being paid properly, or be the victim of illegal deductions taken from the paycheck that they rely on. California law agrees, and extends its protections to all California workers.

Tuesday, January 27, 2015

What is My Case Worth?

If you have had something illegal happen to you in the workplace, and you are considering taking legal action, you've probably asked yourself: What is my case worth? If you haven't asked yourself that yet, I urge you to think about it.

Your legal issues aren't just dollars and cents to you. They are about something that really happened, and they affected you and your life. Maybe you want just compensation for what you've gone through, and what you'll continue to go through for the near future. On the other hand, maybe you feel it's crass to try to quantify your distress and assign a dollar value to it.

I.   The Law is Limited in What it Can Do, and "What it Can Do" is Usually Just Money

I wouldn't argue with you either way. If something illegal has happened to you at work, you are justified in wanting to set it right with adequate compensation. But although it is crass to break human suffering down into a monetary award, that is the best the law can do. The law can't undo what happened. The most it can do is to assign a dollar value to it, and try to put you back where you would have been.

I ask my clients to try to think of their lawsuits, as much as they can, as a business proposition.  Since if they get anything out of it it is likely only to be money, they need to assess whether the likely outcome is worth pursuing or not.

II.  There are Certain Signposts for Assessing a Case's Value

So clients will ask me, quite reasonably, "What is my case worth?" What I hope they are doing is trying to decide whether the heartache, consumption of time, investment of physical and spiritual energy that could be applied elsewhere, will ultimately be worth it.

Here's what I tell them:

I can't tell you with any precision what your case is worth. Any attorney who tells you with certainty what you will get at the end of the day is not to be trusted. What I can do is give you a general idea of what I look for in a case to assess its value. I may even be able to give you a range of values that I think a case is likely to fall into, although of course there are no guarantees. You may get nothing. If you lose at trial, you may owe the other side money. All of these things have to be taken into consideration when assessing a case's value.

With all that said, here's what I look for:

  A. Strength of Liability

In previous posts, I've mentioned that there are two parts to every lawsuit: liability, and damages. Damages asks, "What is the case worth?," which is the topic of this post. Liability asks, "Can I prove that the company did something illegal?," a question that must be answered "yes" before the company would have to pay anything.

Some cases are stronger on liability than others. The stronger the liability, the better the settlement value of the case is. That doesn't mean that good liability increases the damages; but it does mean that weak liability will decrease the perceived value of the case. Stronger liability cases generally settle earlier, and for closer (not close, but closer) to full value than weak liability cases.

B.  Your Age

One of the things your attorney has to assess is how much a jury is likely to award you in front pay. "Front pay" is your loss of wages and benefits until you are reasonably likely to find another, substantially similar job with reasonable effort. The longer you're likely to be out of work, the more your case may be worth.

Here's where your age comes in. The unfortunate truth is that age discrimination is rampant, and older workers are less likely to find comparable employment than their younger counterparts. A jury expects that a young person in their 20s or even their 30s will find new work pretty quickly. Someone in their mid-50s or older may have had their career ended by an illegal firing.

I usually estimate that a jury will award 3 - 5 years of compensation for someone who's been illegally fired, and hasn't found work by the time the trial rolls around. That's how long I've heard economists say it takes the average worker to get back to their previous salary level. I don't know if that's true or not, but it's a reasonable guesstimate that I've sometimes seen validated by jury verdicts.

C.  Your Compensation Level

How much you earn is an obvious factor in determining what your case is worth. That's true not just because a larger salary adds up pretty quickly in a front pay and back pay award. It's also true because statistically, lower paying jobs are easier to find than higher paying jobs. So a highly-compensated person who has been fired illegally will be out of work longer, on average, than someone who doesn't make as much.

Putting these factors together, many attorneys look for highly-compensated plaintiffs in their mid-50s or so with strong liability as a good starting point for a high-value case.

D.  What's Happened to You

Those factors are about the economic damages, but emotional distress damages are equally important or even more so. Plaintiffs who have suffered a deep loss to which juries can relate may have a more valuable case. The loss of a home or marriage can be devastating, and if attributable to the illegal firing, can be important in determining a case's value.

If the plaintiff has been seeing a therapist, or better yet a psychologist or psychiatrist, that creates a record of the emotional suffering that was going on before the lawsuit started. Such records have increased credibility, and can help increase the worth of the case.

E.  You

I wish juries were completely rational, and just made their decisions based on the facts. Juries, of course, are human, and all sorts of considerations factor into their analysis.

One of the most important factors is how they perceive the plaintiff. I have turned away good cases just because I didn't want the plaintiff as a client, and if my reaction is so negative, I expect a jury's will be as well. It's not just a gestalt, nebulous feeling on which the jury is acting. If the plaintiff is truly difficult, the jury is more likely to believe that the employer's action was justified, or that it was based on the plaintiff's personality rather than on some illegal motivation.

Sometimes plaintiffs are so damaged by what happened to them that it can be difficult to relate to them. Rather than express the hurt they've experienced, they may express themselves angrily. Anger can be offputting to a jury, and a plaintiff may need help from the attorney and perhaps a psychologist to express fully the emotions they've endured in a way that the jury can appreciate.

I take time talking to prospective clients because I want to be able to assess how they'll come across to a jury. This may be one of the most important factors in determining the value of the case.

III.  It's an Art, not a Science

If you've read this far, you still don't have a formula that you can put into a calculator and figure out what your case is worth. That's okay; neither do I. Valuing a case is an art, not a science.

When I accept representation of a client, I let them know that although I can't tell them exactly what the result will be, I'm expressing my confidence that we'll both make money by taking it on a contingency basis. My confidence may ultimately be shown to have been misplaced, but that's the best way I can tell you what my professional opinion is.

I'm still surprised, though, that when my colleagues and I talk about a prospective case, we usually come up with similar ranges for what we think the case is worth. It takes some experience, and there are more considerations than I've listed here, but you can start to get a sense from this, and hopefully have a better idea of whether litigation might be worth your time.