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.
Tuesday, January 27, 2015
Sunday, October 5, 2014
Our Overly-Litigious Society: The Justice System is Out of Control
When people find out what I do for a living, I usually get an earful. Too many lawsuits, they say. The verdicts are too high, they tell me.
The first thing I learned about being a good lawyer is that preparation is key. So I go to parties ready to hear this kind of stuff. Here's what I say to these folks.
1. Who Have You Sued?
I usually start off with a little party game I like to call, "Who Have You Sued?" It goes like this: I ask the person, "Have you ever sued anyone, or been sued?" The next question is, "Do you know anyone who's been sued, or who's sued anyone?"
I feel completely safe asking these questions, because no one's ever answered yes to either question yet.
Try to imagine the meaning of that: in what so many of us think as a society that sues too much, you probably have never sued anyone or been sued, and you probably don't even know anyone who has. Within a full degree of separation -- which is a lot of people, when you think about it -- you have probably had no contact with the court system.
As for our being an "overly litigious society," did you know that, from 2009 - 2010, lawsuits in California actually *decreased* 11.6%? As far as California goes, a survey of 29 states and D.C. showed that, per capita, California was 28th out of 30 in lawsuits filed. You can get some of this information straight from California courts, and the rest here: http://www.courtstatistics.org/Other-Pages/~/media/Microsites/Files/CSP/Home%20Page/csp_2012.ashx
In fact, of those lawsuits filed in 17 states surveyed (California was not part of this study), 61% of them were for breach of contract. That's not greedy plaintiffs sticking it to the poor companies. Breach of contract cases frequently involve corporations suing each other. Tort cases, involving personal injury and wrongful death -- the sorts of things you hear about people suing for -- were about 6% of the courts' dockets in 2009.
So the number of lawsuits is trending down, not up, and per capita, California is toward the bottom of lawsuits being filed.
Your own experience tells you that lawsuits are not out of control, because you've never sued anyone and you don't know anyone who has. The data says that lawsuits are not out of control -- they're actually trending down.
We need to ask ourselves: what kind of power do insurance companies and large corporations have that they can make us believe things that run counter even to our own experience and the facts we know to be true?
2. Litigants Get Big Money
But how about all those out-of-control verdicts? How about the lady who spilled coffee in her lap and got 150 million dollars?
Litigants who win big verdicts are sort of like people who win the lottery. You've heard it happens, but you've never met anyone it's happened to.
There's a lot of reasons for that.
Part of it is that what really happens would never make the news. It's too boring. Did you know that the average verdict in California personal injury cases, according to one study, is about $150,000? But the average verdict reported by the news is about $3.5 million. That gives everyone listening a false impression about what's really happening out there.
The other thing the news doesn't tell you is that there are a lot of protections for corporations and insurance companies built into the system. So everyone's heard of the McDonald's coffee case, in which the lady spilled coffee on herself and got $2.86 million. We don't have to talk too much about the facts of the case: the plaintiff received 3rd degree burns on her genitals, had to be hospitalized for eight days, needed skin grafts and two years of medical treatment, and internal memos from McDonald's showed that they knew the coffee was physically, dangerously hot, but served it that way anyway.
And while you never heard any of those facts on the news, here's what you also didn't hear: the judge took away the jury's verdict, and replaced it with his own: $640,000. Did you know that judges could do that? That they can just take away a jury's verdict, and replace it with whatever they darn well please? Yes, they can, and it happened here. Then the parties settled, reportedly for something less than $600,000.
Burned genitals, skin grafts, two years of medical treatment, and a company that knew what it was doing and did it anyway. And it took her 2 1/2 years just to get to court.
Sometimes, the facts don't make good stories. But they are still the facts nonetheless. Despite what our own experiences and the facts tell us, the constant drumbeat of "frivolous lawsuits" and "overly litigious society" keeps legislators dancing to the insurance companies' rhythm.
I know that this blog post's title was "Our Overly-Litigious Society: The Justice System is Out of Control," and that's not at all what the evidence shows. Sometimes, you just can't believe the headlines.
The first thing I learned about being a good lawyer is that preparation is key. So I go to parties ready to hear this kind of stuff. Here's what I say to these folks.
1. Who Have You Sued?
I usually start off with a little party game I like to call, "Who Have You Sued?" It goes like this: I ask the person, "Have you ever sued anyone, or been sued?" The next question is, "Do you know anyone who's been sued, or who's sued anyone?"
I feel completely safe asking these questions, because no one's ever answered yes to either question yet.
Try to imagine the meaning of that: in what so many of us think as a society that sues too much, you probably have never sued anyone or been sued, and you probably don't even know anyone who has. Within a full degree of separation -- which is a lot of people, when you think about it -- you have probably had no contact with the court system.
As for our being an "overly litigious society," did you know that, from 2009 - 2010, lawsuits in California actually *decreased* 11.6%? As far as California goes, a survey of 29 states and D.C. showed that, per capita, California was 28th out of 30 in lawsuits filed. You can get some of this information straight from California courts, and the rest here: http://www.courtstatistics.org/Other-Pages/~/media/Microsites/Files/CSP/Home%20Page/csp_2012.ashx
In fact, of those lawsuits filed in 17 states surveyed (California was not part of this study), 61% of them were for breach of contract. That's not greedy plaintiffs sticking it to the poor companies. Breach of contract cases frequently involve corporations suing each other. Tort cases, involving personal injury and wrongful death -- the sorts of things you hear about people suing for -- were about 6% of the courts' dockets in 2009.
So the number of lawsuits is trending down, not up, and per capita, California is toward the bottom of lawsuits being filed.
Your own experience tells you that lawsuits are not out of control, because you've never sued anyone and you don't know anyone who has. The data says that lawsuits are not out of control -- they're actually trending down.
We need to ask ourselves: what kind of power do insurance companies and large corporations have that they can make us believe things that run counter even to our own experience and the facts we know to be true?
2. Litigants Get Big Money
But how about all those out-of-control verdicts? How about the lady who spilled coffee in her lap and got 150 million dollars?
Litigants who win big verdicts are sort of like people who win the lottery. You've heard it happens, but you've never met anyone it's happened to.
There's a lot of reasons for that.
Part of it is that what really happens would never make the news. It's too boring. Did you know that the average verdict in California personal injury cases, according to one study, is about $150,000? But the average verdict reported by the news is about $3.5 million. That gives everyone listening a false impression about what's really happening out there.
The other thing the news doesn't tell you is that there are a lot of protections for corporations and insurance companies built into the system. So everyone's heard of the McDonald's coffee case, in which the lady spilled coffee on herself and got $2.86 million. We don't have to talk too much about the facts of the case: the plaintiff received 3rd degree burns on her genitals, had to be hospitalized for eight days, needed skin grafts and two years of medical treatment, and internal memos from McDonald's showed that they knew the coffee was physically, dangerously hot, but served it that way anyway.
And while you never heard any of those facts on the news, here's what you also didn't hear: the judge took away the jury's verdict, and replaced it with his own: $640,000. Did you know that judges could do that? That they can just take away a jury's verdict, and replace it with whatever they darn well please? Yes, they can, and it happened here. Then the parties settled, reportedly for something less than $600,000.
Burned genitals, skin grafts, two years of medical treatment, and a company that knew what it was doing and did it anyway. And it took her 2 1/2 years just to get to court.
Sometimes, the facts don't make good stories. But they are still the facts nonetheless. Despite what our own experiences and the facts tell us, the constant drumbeat of "frivolous lawsuits" and "overly litigious society" keeps legislators dancing to the insurance companies' rhythm.
I know that this blog post's title was "Our Overly-Litigious Society: The Justice System is Out of Control," and that's not at all what the evidence shows. Sometimes, you just can't believe the headlines.
Monday, August 11, 2014
Whistleblower Protection Expands in California
Most forms of discrimination are not illegal. It's not illegal for your employer to discriminate against you because they don't like you, because they want to hire their nephew instead of you, or because you wore yellow socks to work one day and they don't like yellow socks. Your employer is legally allowed to discriminate, so long as the discrimination is not based on a protected characteristic, like race, age, sex, disability, or something like that.
By the same token, most forms of retaliation are not illegal either. If you complain to Human Resources that your boss doesn't like you, or that they hired their nephew, you can legally be retaliated against and fired for that. It may be unfair, but it's not against the law.
Some forms of retaliation, however, are definitely against the law. It is illegal to retaliate against someone because that person has "blown the whistle" on something illegal. Note that the whistleblower has to be reporting something *illegal,* not just arbitrary or unfair. So, for example, the person who complains of racial discrimination in the workplace is a whistleblower, and he or she can't be retaliated against because of that.
This year, California enacted a host of new laws providing additional protections for whistleblowers.
1. It used to be true that California's Labor Code only protected your reports of most illegal activity to a government agency. Then one court came along and said that you were protected if your employer thought you were going to report to a government agency, and preemptively fired you. Another court disagreed, and California law became uncertain.
The Legislature settled that uncertainty this year. You are now protected under California Labor Code §1102.5(b) as a whistleblower if you report illegal activity *internally* to someone who has the authority to do something about it.
Even if your employer *believes* you reported something illegal, but you really didn't, it's still prohibited from retaliating against you now.
2. Employers can no longer retaliate against immigrant workers who exercise their legal rights by (a) requiring more or different paperwork to show immigration status than the federal law requires, or by denying paperwork that appears to be genuine on its face, (b) using the E-verify system in a way not required by federal law, (c) filing or threatening to file a false police report, or (d) threatening to contact or contacting immigration authorities.
Whatever your views on undocumented immigration, these workers have a right to complain about illegal working conditions without being threatened on the grounds of their immigration status.
3. Victims of sexual assault and domestic violence have long been protected from retaliation for having to appear in court for related issues. A law passed in 2014 extends that law to victims of stalking, as defined in the Penal Code and Civil Code. The new law also requires employers to provide reasonable accommodations for the safety of such employees while at work.
4. Employers cannot retaliate against employees who provide CPR or other voluntary, emergency medical services in response to a medical emergency.
There are other laws that passed this year as well that relate to whistleblower protections.
Whistleblower cases can be among the most powerful of retaliation cases. We can all sympathize with employees who are trying to do the right thing, only to have their employers retaliate by taking away their livelihoods.
If you believe that you have been the victim of illegal whistleblower retaliation, make sure to take action within your statute of limitations, or your rights may be lost forever.
By the same token, most forms of retaliation are not illegal either. If you complain to Human Resources that your boss doesn't like you, or that they hired their nephew, you can legally be retaliated against and fired for that. It may be unfair, but it's not against the law.
Some forms of retaliation, however, are definitely against the law. It is illegal to retaliate against someone because that person has "blown the whistle" on something illegal. Note that the whistleblower has to be reporting something *illegal,* not just arbitrary or unfair. So, for example, the person who complains of racial discrimination in the workplace is a whistleblower, and he or she can't be retaliated against because of that.
This year, California enacted a host of new laws providing additional protections for whistleblowers.
1. It used to be true that California's Labor Code only protected your reports of most illegal activity to a government agency. Then one court came along and said that you were protected if your employer thought you were going to report to a government agency, and preemptively fired you. Another court disagreed, and California law became uncertain.
The Legislature settled that uncertainty this year. You are now protected under California Labor Code §1102.5(b) as a whistleblower if you report illegal activity *internally* to someone who has the authority to do something about it.
Even if your employer *believes* you reported something illegal, but you really didn't, it's still prohibited from retaliating against you now.
2. Employers can no longer retaliate against immigrant workers who exercise their legal rights by (a) requiring more or different paperwork to show immigration status than the federal law requires, or by denying paperwork that appears to be genuine on its face, (b) using the E-verify system in a way not required by federal law, (c) filing or threatening to file a false police report, or (d) threatening to contact or contacting immigration authorities.
Whatever your views on undocumented immigration, these workers have a right to complain about illegal working conditions without being threatened on the grounds of their immigration status.
3. Victims of sexual assault and domestic violence have long been protected from retaliation for having to appear in court for related issues. A law passed in 2014 extends that law to victims of stalking, as defined in the Penal Code and Civil Code. The new law also requires employers to provide reasonable accommodations for the safety of such employees while at work.
4. Employers cannot retaliate against employees who provide CPR or other voluntary, emergency medical services in response to a medical emergency.
There are other laws that passed this year as well that relate to whistleblower protections.
Whistleblower cases can be among the most powerful of retaliation cases. We can all sympathize with employees who are trying to do the right thing, only to have their employers retaliate by taking away their livelihoods.
If you believe that you have been the victim of illegal whistleblower retaliation, make sure to take action within your statute of limitations, or your rights may be lost forever.
Tuesday, August 5, 2014
You Have Been WARNed: California Employers and their Duty to Warn of Shutdowns
Employment in California is at-will. That means that, absent some type of agreement to the contrary, you can be fired for any reason or for no reason at all.
But there are lots of limitations on that rule. The federal government has some limitations, but the State of California has many more. California law frequently models itself after federal law, but then adds additional protections. One example is California's WARN Act, or Cal-WARN.
California's Worker Adjustment and Re-training Notification Act applies to employers with more than 75 employees in the last 12 months. Passed in 2002, Cal-WARN was a reaction to mid-sized companies opening and closing in rapid succession, taking a heavy toll on local communities.
In a nutshell, Cal-WARN requires covered employers to give their workers 60 days advanced notice of a mass layoff, relocation, or termination of operations. If they don't do it, they're liable for their failure to provide such notice up to 60 days of wages and benefits.
That's good in theory, but here's the problem: companies that are laying off or closing down probably don't have any money. So who's going to pay those 60 days of wages and benefits?
That's where Cal-WARN is so much better than the federal WARN Act. Although the courts have said that Cal-WARN is modeled after the federal law, the two really have very little to do with one another. In fact, they share virtually no language in common. (As near as I could tell, Cal-WARN may have been modeled after Maine's Severance Pay Act, because that's the earliest law that I could find with language similar to Cal-WARN.)
Cal-WARN has its own definition of "employer," which includes "any person . . . who directly or indirectly owns and operates a covered establishment. A parent corporation is an employer as to any covered establishment directly owned and operated by its corporate subsidiary.:
That's a lot to take in, but it essentially means any entity, whether a person or a company, who directly or indirectly owns and operates the business. A parent corporation is liable for its subsidiary's actions even if it doesn't operate the business.
This opens up a lot of avenues under Cal-WARN that aren't available under the federal act. I've hooked private investment companies (they're my favorites; their egos just won't let them not try to operate the business themselves), parent corporations, and individuals into liability for Cal-WARN. That's because the whole point of Cal-WARN is to protect workers from sudden unemployment, and to give them a financial bridge to finding something else. So Cal-WARN extends liability to employers above and beyond what the law normally thinks of as an "employer."
Cal-WARN is a bit of a hodgepodge of a statute. It's internally contradictory, and in some places it just doesn't make any sense. But it is a powerful tool available to displaced workers, and it is especially valuable in a bad economy.
But there are lots of limitations on that rule. The federal government has some limitations, but the State of California has many more. California law frequently models itself after federal law, but then adds additional protections. One example is California's WARN Act, or Cal-WARN.
California's Worker Adjustment and Re-training Notification Act applies to employers with more than 75 employees in the last 12 months. Passed in 2002, Cal-WARN was a reaction to mid-sized companies opening and closing in rapid succession, taking a heavy toll on local communities.
In a nutshell, Cal-WARN requires covered employers to give their workers 60 days advanced notice of a mass layoff, relocation, or termination of operations. If they don't do it, they're liable for their failure to provide such notice up to 60 days of wages and benefits.
That's good in theory, but here's the problem: companies that are laying off or closing down probably don't have any money. So who's going to pay those 60 days of wages and benefits?
That's where Cal-WARN is so much better than the federal WARN Act. Although the courts have said that Cal-WARN is modeled after the federal law, the two really have very little to do with one another. In fact, they share virtually no language in common. (As near as I could tell, Cal-WARN may have been modeled after Maine's Severance Pay Act, because that's the earliest law that I could find with language similar to Cal-WARN.)
Cal-WARN has its own definition of "employer," which includes "any person . . . who directly or indirectly owns and operates a covered establishment. A parent corporation is an employer as to any covered establishment directly owned and operated by its corporate subsidiary.:
That's a lot to take in, but it essentially means any entity, whether a person or a company, who directly or indirectly owns and operates the business. A parent corporation is liable for its subsidiary's actions even if it doesn't operate the business.
This opens up a lot of avenues under Cal-WARN that aren't available under the federal act. I've hooked private investment companies (they're my favorites; their egos just won't let them not try to operate the business themselves), parent corporations, and individuals into liability for Cal-WARN. That's because the whole point of Cal-WARN is to protect workers from sudden unemployment, and to give them a financial bridge to finding something else. So Cal-WARN extends liability to employers above and beyond what the law normally thinks of as an "employer."
Cal-WARN is a bit of a hodgepodge of a statute. It's internally contradictory, and in some places it just doesn't make any sense. But it is a powerful tool available to displaced workers, and it is especially valuable in a bad economy.
Wednesday, June 18, 2014
Don't be a Quitter: Why Quitting in the Face of an Illegal Workplace is (Usually) a Bad Idea
• An employee who needs an accommodation for a disability is told there's no work for him, and
he should just quit.
• An accountant in a company with state contracts finds that the company is illegally overbilling
the state. Her boss tells her to resign quietly.
• A victim of sexual harassment in the workplace is given two options: (a) take two weeks pay
and resign quietly, or (b) just quit.
Fearful of harming their employment record and not knowing what the right thing to do is, employees frequently quit their jobs when their employers have done something illegal to them. What they don't realize is:
a. Quitting your job makes it much more difficult to collect unemployment insurance; and
b. Quitting your job makes it much more difficult to pursue your employer for their illegal acts in
court.
A. Damaging your "permanent record"
Workplace records aren't like your records from high school; they don't follow you wherever you go. There's no "permanent record" floating out in the ether someplace that all corporations can get hold of.
In other words, when you're applying for a job, unless your prospective employer asks for your previous employment history, they can't get it. If they do ask, and you have to say that you were fired, a brief explanation will hopefully get you past it. And it's not clear that you'll be hired quicker by being able to say that you quit without another job ready rather than that you were fired.
B. Collecting Unemployment
Getting unemployment insurance requires that you have been fired for reasons other than misconduct. If you quit, you will have a higher burden to carry in order to get your unemployment insurance. You will have to demonstrate that your quitting was through no fault of your own. Your employer will dispute this, and it will be more difficult to prove than if you were actually fired.
C. Affecting your rights
Employees who are fired illegally by an employer have a lot of rights available to them. Employees who quit have far fewer.
If you quit your job, and you want to pursue your legal rights, in order to get compensation for future damages you will have to show that no reasonable person would have stayed in that workplace. That's a lot harder to show than you would think. Courts have made it very difficult to demonstrate this type of "constructive termination," as they call it. What you and I might think would be intolerable to any reasonable person, the courts have said we all should be able to tolerate anyway.
D. Leverage
If your employer asks you to quit, that's because they want you gone. By accommodating them, you take away some of the leverage you have to negotiate. Imagine how much more quickly and better your conflict with your employer might resolve if you stay in the workplace when they really, really want you gone.
E. Illegally Harassing Workplaces
One of the few exceptions to my "don't quit" rule of thumb may be the workplace where employees are being illegally harassed. It of course depends on your situation, but if you are being harassed because of your race, sex, religion, disability, or a handful of other protected characteristics, and you find you can't stay in the workplace, the rules I've discussed above may not apply.
The bottom line is that, if you feel that your workplace has become so intolerable that you can't stay there, talk to an attorney before you take any action that may affect your rights.
he should just quit.
• An accountant in a company with state contracts finds that the company is illegally overbilling
the state. Her boss tells her to resign quietly.
• A victim of sexual harassment in the workplace is given two options: (a) take two weeks pay
and resign quietly, or (b) just quit.
Fearful of harming their employment record and not knowing what the right thing to do is, employees frequently quit their jobs when their employers have done something illegal to them. What they don't realize is:
a. Quitting your job makes it much more difficult to collect unemployment insurance; and
b. Quitting your job makes it much more difficult to pursue your employer for their illegal acts in
court.
A. Damaging your "permanent record"
Workplace records aren't like your records from high school; they don't follow you wherever you go. There's no "permanent record" floating out in the ether someplace that all corporations can get hold of.
In other words, when you're applying for a job, unless your prospective employer asks for your previous employment history, they can't get it. If they do ask, and you have to say that you were fired, a brief explanation will hopefully get you past it. And it's not clear that you'll be hired quicker by being able to say that you quit without another job ready rather than that you were fired.
B. Collecting Unemployment
Getting unemployment insurance requires that you have been fired for reasons other than misconduct. If you quit, you will have a higher burden to carry in order to get your unemployment insurance. You will have to demonstrate that your quitting was through no fault of your own. Your employer will dispute this, and it will be more difficult to prove than if you were actually fired.
C. Affecting your rights
Employees who are fired illegally by an employer have a lot of rights available to them. Employees who quit have far fewer.
If you quit your job, and you want to pursue your legal rights, in order to get compensation for future damages you will have to show that no reasonable person would have stayed in that workplace. That's a lot harder to show than you would think. Courts have made it very difficult to demonstrate this type of "constructive termination," as they call it. What you and I might think would be intolerable to any reasonable person, the courts have said we all should be able to tolerate anyway.
D. Leverage
If your employer asks you to quit, that's because they want you gone. By accommodating them, you take away some of the leverage you have to negotiate. Imagine how much more quickly and better your conflict with your employer might resolve if you stay in the workplace when they really, really want you gone.
E. Illegally Harassing Workplaces
One of the few exceptions to my "don't quit" rule of thumb may be the workplace where employees are being illegally harassed. It of course depends on your situation, but if you are being harassed because of your race, sex, religion, disability, or a handful of other protected characteristics, and you find you can't stay in the workplace, the rules I've discussed above may not apply.
The bottom line is that, if you feel that your workplace has become so intolerable that you can't stay there, talk to an attorney before you take any action that may affect your rights.
Friday, May 16, 2014
Why You Shouldn't Sue Your Employer (or anyone else for that matter)
Lots of people hate their jobs. It can be demoralizing, stressful, and unhappy. Sometimes, illegal things happen, like you're paid late or people tell lewd and inappropriate jokes. Let's face it: the workplace can really stink.
I've posted before about how not everything that's wrong in the workplace is illegal, which means that there's not always reason to sue for everything that's wrong or unfair. But even when there is cause to sue, it's rarely a good idea.
It might seem odd that an employment attorney is trying to talk people out of suing. The fact is that a good attorney will try to help you preserve your employment relationship, if possible, because suing is such a poor alternative. A good attorney will encourage you to work things out if you can, because these days, you'd probably much rather have a job than a lawsuit.
Don't worry; I'll still have plenty of work.
1. The Time Commitment
I used to be able to tell people that, from the filing of a lawsuit until they got to a jury, it would take about a year to a year-and-a-half. I can't tell people that anymore. Unfortunately, state budgets have de-funded our court system to disastrous levels, and getting in front of a jury is a sketchy proposition. I've seen the time it takes go up now from about 1 1/2 - 2 years. And there's no sign it's going to get any better.
2. The Monetary Risk
I often represent people who have lost their jobs illegally. That means that they probably don't have a lot of money for a lawsuit. If I like their case enough, I'll advance the costs (which can be tens of thousands of dollars), and get it back at the end of the case. (No, the attorneys aren't the only ones who make money, the way you hear on the news. If I make money, so do my clients, and that's true of reputable lawyers.)
The fact that I'm advancing the costs of the lawsuit, though, doesn't mean that it's risk free for my clients. Did you know that, if you go to trial and lose, you will owe the defendants their costs (except in rare, specific circumstances)? Losing doesn't mean you get nothing. It means you actually owe money, which, like the amount of money I advanced, can be tens of thousands of dollars.
In rare cases, a losing plaintiff can owe attorney's fees, which can even be hundreds of thousands of dollars.
3. The Poor Return
People frequently have illegal things happen in the workplace short of being fired. Maybe they've been sexually harassed with lewd jokes, or they've been repeatedly paid late.
While these things are illegal, they may not justify a lawsuit. The law only compensates you for what you've lost. If you haven't lost any money, then you have nothing by way of what attorneys call "economic damages." And without economic damages, juries frequently don't want to allow money for emotional distress damages.
So in cases where illegal things are happening in the workplace, but you still have a job, it's often a better idea just to try to find something else, rather than suing.
4. Collecting can be Tough
When an employer doesn't pay on time, there's usually a reason, and the reason usually is that they don't have any money. If you win a judgment against a defendant, the court doesn't help you collect it. The money has to come from the defendant, and if there's no money to be had, suing becomes a useless exercise.
5. The Time and Energy Drain
There's nothing pleasant about a lawsuit. It's a stressful time, which demands energy and attention which could likely be directed better toward finding new employment. You spend your time filling out forms, answering detailed questions, and having former employers and doctors subpoenaed for their medical files as the employer looks for anything and everything they can to humiliate and discredit you.
I never encourage anyone to sue. The clients who do wind up in litigation are the ones who don't really have much choice about it. Perhaps their reputations have been ruined, or their situation is such that finding another job will be next to impossible. In these rare situations, it might make sense to exercise their legal rights. But as a matter of course: don't sue. Spend that time, energy and money looking for other ways to make your life better, in ways that litigation can't.
I've posted before about how not everything that's wrong in the workplace is illegal, which means that there's not always reason to sue for everything that's wrong or unfair. But even when there is cause to sue, it's rarely a good idea.
It might seem odd that an employment attorney is trying to talk people out of suing. The fact is that a good attorney will try to help you preserve your employment relationship, if possible, because suing is such a poor alternative. A good attorney will encourage you to work things out if you can, because these days, you'd probably much rather have a job than a lawsuit.
Don't worry; I'll still have plenty of work.
1. The Time Commitment
I used to be able to tell people that, from the filing of a lawsuit until they got to a jury, it would take about a year to a year-and-a-half. I can't tell people that anymore. Unfortunately, state budgets have de-funded our court system to disastrous levels, and getting in front of a jury is a sketchy proposition. I've seen the time it takes go up now from about 1 1/2 - 2 years. And there's no sign it's going to get any better.
2. The Monetary Risk
I often represent people who have lost their jobs illegally. That means that they probably don't have a lot of money for a lawsuit. If I like their case enough, I'll advance the costs (which can be tens of thousands of dollars), and get it back at the end of the case. (No, the attorneys aren't the only ones who make money, the way you hear on the news. If I make money, so do my clients, and that's true of reputable lawyers.)
The fact that I'm advancing the costs of the lawsuit, though, doesn't mean that it's risk free for my clients. Did you know that, if you go to trial and lose, you will owe the defendants their costs (except in rare, specific circumstances)? Losing doesn't mean you get nothing. It means you actually owe money, which, like the amount of money I advanced, can be tens of thousands of dollars.
In rare cases, a losing plaintiff can owe attorney's fees, which can even be hundreds of thousands of dollars.
3. The Poor Return
People frequently have illegal things happen in the workplace short of being fired. Maybe they've been sexually harassed with lewd jokes, or they've been repeatedly paid late.
While these things are illegal, they may not justify a lawsuit. The law only compensates you for what you've lost. If you haven't lost any money, then you have nothing by way of what attorneys call "economic damages." And without economic damages, juries frequently don't want to allow money for emotional distress damages.
So in cases where illegal things are happening in the workplace, but you still have a job, it's often a better idea just to try to find something else, rather than suing.
4. Collecting can be Tough
When an employer doesn't pay on time, there's usually a reason, and the reason usually is that they don't have any money. If you win a judgment against a defendant, the court doesn't help you collect it. The money has to come from the defendant, and if there's no money to be had, suing becomes a useless exercise.
5. The Time and Energy Drain
There's nothing pleasant about a lawsuit. It's a stressful time, which demands energy and attention which could likely be directed better toward finding new employment. You spend your time filling out forms, answering detailed questions, and having former employers and doctors subpoenaed for their medical files as the employer looks for anything and everything they can to humiliate and discredit you.
I never encourage anyone to sue. The clients who do wind up in litigation are the ones who don't really have much choice about it. Perhaps their reputations have been ruined, or their situation is such that finding another job will be next to impossible. In these rare situations, it might make sense to exercise their legal rights. But as a matter of course: don't sue. Spend that time, energy and money looking for other ways to make your life better, in ways that litigation can't.
Sunday, May 4, 2014
Truth or Consequences: The Five Best Answers at your Deposition
A deposition is the taking of a witness's testimony under oath. An attorney asks questions, and the witness answers them. Meanwhile, a court reporter is taking down everything everyone says. There may be a video camera recording. The witness's attorney may make objections.
If you are the plaintiff (the person suing the defendant), your deposition is the most important one in the case. Not to put any pressure on, but how the plaintiff comes across as a person can be as important as the facts in the case. No matter how the other attorney acts, treat that person with courtesy and respect, answer the question that was just asked, and wait for the next one.
With all of this going on, depositions can be confusing and intimidating. They don't need to be. In fact, depositions can be straightforward with some preparation and the right approach.
There are Five Best Answers to deposition questions. If you can answer a question with one of them, you are on the road to a successful deposition. They are:
1. Yes.
2. No.
3. I don't know.
4. I don't remember.
5. I don't understand the question.
If you answer questions with one of the Five Best Answers, no one can say that you were evasive. You answered the question (or asked for clarification), and you will appear straightforward and confident. Many witnesses feel that, the more they tell the other lawyer, the faster they will be done with the deposition. The opposite is true. The more you talk, the more you tell the other attorney things they didn't know already, and the more you are giving them to follow up on.
It's the other attorney's job to ask good questions to get the information needed. It's not your job to offer information they didn't ask for. Your job is to be truthful, not helpful. I'm not saying to give the other attorney a hard time or to make getting information from you like pulling teeth. Don't artificially limit what the question means to try to limit your response. Just answer the question in the shortest, most truthful way possible.
It's also a human tendency to want to explain and put things in context. Your deposition isn't the time to do that. You will not convince the defendant's attorney that you are right no matter how much you explain. All you will do is appear evasive and defensive. Your deposition is like the Dodgers being in the outfield: nothing good can happen. Answer the questions, finish up, and get out.
Feel free to say "I don't remember" or "I don't understand," but don't try to narrow the question so as to try not to answer or to give a misleading answer. I never recommend giving the other attorney a hard time; that's the person who will recommend whether and for how much to settle your case. Also, don't say "I don't remember" when you really do, or "I don't understand" when the question is clear to you.
Sometimes, questions aren't susceptible to one of the Five Best Answers. Listen to the question, and make sure to answer what it asks for. The response to a question that asks "who" is a name. The response to a question that asks "when" is a date or time. The response to a question that asks "where" is a place. Remember not to think aloud when answering. Take the time to think about your answer without talking about it, and respond in the shortest truthful way you can.
Of course, these are just guidelines and they don't apply to every question or every situations. For some questions, you will want to let 'er rip and testify about everything that happened. A good example is if you're asked about your emotional distress, or how the events of the lawsuit affected you personally. When that happens, it's time to be fully expressive.
This is how I approach depositions, but every attorney has their own outlook. Make sure to ask your lawyer how to go about giving your best, most truthful testimony in your deposition.
If you are the plaintiff (the person suing the defendant), your deposition is the most important one in the case. Not to put any pressure on, but how the plaintiff comes across as a person can be as important as the facts in the case. No matter how the other attorney acts, treat that person with courtesy and respect, answer the question that was just asked, and wait for the next one.
With all of this going on, depositions can be confusing and intimidating. They don't need to be. In fact, depositions can be straightforward with some preparation and the right approach.
There are Five Best Answers to deposition questions. If you can answer a question with one of them, you are on the road to a successful deposition. They are:
1. Yes.
2. No.
3. I don't know.
4. I don't remember.
5. I don't understand the question.
If you answer questions with one of the Five Best Answers, no one can say that you were evasive. You answered the question (or asked for clarification), and you will appear straightforward and confident. Many witnesses feel that, the more they tell the other lawyer, the faster they will be done with the deposition. The opposite is true. The more you talk, the more you tell the other attorney things they didn't know already, and the more you are giving them to follow up on.
It's the other attorney's job to ask good questions to get the information needed. It's not your job to offer information they didn't ask for. Your job is to be truthful, not helpful. I'm not saying to give the other attorney a hard time or to make getting information from you like pulling teeth. Don't artificially limit what the question means to try to limit your response. Just answer the question in the shortest, most truthful way possible.
It's also a human tendency to want to explain and put things in context. Your deposition isn't the time to do that. You will not convince the defendant's attorney that you are right no matter how much you explain. All you will do is appear evasive and defensive. Your deposition is like the Dodgers being in the outfield: nothing good can happen. Answer the questions, finish up, and get out.
Feel free to say "I don't remember" or "I don't understand," but don't try to narrow the question so as to try not to answer or to give a misleading answer. I never recommend giving the other attorney a hard time; that's the person who will recommend whether and for how much to settle your case. Also, don't say "I don't remember" when you really do, or "I don't understand" when the question is clear to you.
Sometimes, questions aren't susceptible to one of the Five Best Answers. Listen to the question, and make sure to answer what it asks for. The response to a question that asks "who" is a name. The response to a question that asks "when" is a date or time. The response to a question that asks "where" is a place. Remember not to think aloud when answering. Take the time to think about your answer without talking about it, and respond in the shortest truthful way you can.
Of course, these are just guidelines and they don't apply to every question or every situations. For some questions, you will want to let 'er rip and testify about everything that happened. A good example is if you're asked about your emotional distress, or how the events of the lawsuit affected you personally. When that happens, it's time to be fully expressive.
This is how I approach depositions, but every attorney has their own outlook. Make sure to ask your lawyer how to go about giving your best, most truthful testimony in your deposition.
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