Last week, we talked about 20 things an employer should ask itself before terminating an employee. In the interests of fairness, here are 10 things that an employee should ask before suing an employer. You should know that I generally don’t believe that lawsuits are the best way to resolve problems. (I realize that there are exceptions.)
BEFORE YOU GO ON, PLEASE READ THIS!!!! I represent employers only, not employees or applicants. This blog never contains legal advice, and especially not today. Reading this blog is no substitute for consulting with your own lawyer who is (1) on your side and (2) understands your situation.
You still care what I think? Great! Here we go.
(Click on picture to enlarge and laugh.)
- Are you pretty confident that your employer didn’t just treat you inconsiderately, or unfairly, or stupidly, but actually violated the law? It’s not against the law to be an unfair employer, as unfair (heh) as that may seem. Even though I rail on a regular basis against employer favoritism, unfairness, poor communication, and the like, it’s not because these things are illegal — it’s because (a) they encourage employees to file lawsuits, and even a baseless lawsuit is an expense and hassle that most employers don’t need, and (b) being fair and even-handed with employees is the right thing to do. If your employer is a garden-variety jerk, then your best bet may be to find another job.
- If you think you were discriminated against because of your race, sex, ethnic background, etc., have you compared how co-workers of different backgrounds were treated? Do you know the specifics of their situations? Probably not, because you’re the employee and don’t have access to all of that information. It’s possible that they had some extenuating circumstances that did not apply to you. It’s also possible that they were treated exactly the same way as you but you don’t know it because personnel information about your co-workers is confidential.
- Do you have any back-up? Are there employees or former employees who agree that you were treated unlawfully? Will a manager or supervisor say that? Or is everybody either actively siding with your employer or staying far away from you?
- Do you still work for the employer you want to sue? Have you really thought about how miserable this is going to make you in your job? I’m not talking about retaliation – I’m talking about your own feelings that co-workers are looking at you funny (whether they are or not) and that your bosses are picking on you (whether they are or not) because they know (whether they do or not). If you can’t stand that constant stress, then quit and get a job somewhere else before you sue. If you can’t afford to quit, or don’t think you can get a job elsewhere, then give serious consideration to trying to handle your problem in some other way.
- Speaking of handling your problem in some other way, have you tried to do that? If you feel that you’ve been harassed, or discriminated against, or retaliated against, or denied a reasonable accommodation that you deserve, or not paid properly, have you talked to someone in your company about it? If you have an HR department, have you tried to get their help? Even if you don’t have an HR department, is there a trustworthy person in a management role you can talk to? A union representative? A lot of employment issues can be resolved internally. The benefit of getting them resolved internally (if possible) is that you can usually continue working in peace, and – if you have a true “legal” issue – get it resolved before you suffer too much harm. Even if it turns out to be a non-legal “fairness” issue, most employers want to hear about those and resolve them, too. One more benefit – if you did your best to resolve it internally, you will be in a stronger legal position if you do eventually have to sue. (NOT LEGAL ADVICE)
- Have you consulted with a trustworthy person who has expertise in employment law, and I don’t mean me or this blog. Have you consulted with an honest-to-goodness live, non-virtual employment lawyer, or someone with a government agency that handles your type of claim, such as the Equal Employment Opportunity Commission or your state Wage and Hour Division? Do you have a friend who is an employment lawyer or HR professional who might be able to give you some free (and sound) advice? If so, have you given them all of the facts, both good and bad? What do they think you should do? If they’re encouraging you to “build a bridge and get over it” or “quit,” then maybe suing isn’t such a good idea.
- If you’re planning to sue for emotional distress, are you ready to have your entire life exposed? If you claim emotional distress in a lawsuit, the employer is usually entitled to find out all about any trauma you may have suffered, including physical and sexual abuse, psychological conditions, psychiatric conditions, diseases, divorces, plastic surgeries, accidents, crimes, arrests, and deaths. The employer can also get your medical and psychiatric records, at least within limits. If the employer finds out that you had any of these other things going on in your life, then it can argue to a judge or a jury that whatever it did to you (“all of which the Defendant denies”) was not that big a deal.
- Do you have any other skeletons, and are you ok with having them come out of the closet? How many jobs were you fired from before you got fired by this employer? Were you accused of embezzlement on your last job? Sexual harassment? The employer will be able to subpoena your personnel files from your past employers. And are you ok with sitting across a table from your former co-workers and supervisors while they testify under oath that you were a lousy employee?
- Have you thought about what you really want out of your lawsuit? Do you need a quick $5,000 so you can make a down payment on a Honda Civic? Do you want a zillion dollars so you can buy that oceanfront mansion in Palm Beach, preferably with an infinity pool? Do you want nothing more than your just compensation for the wrong that has been done to you? Do you want to vindicate not only yourself, but all of your co-workers? Do you want blood, and you don’t care what you have to do to get it? Depending on your goal, the litigation will be more or less of a living hell for you.
- Have you considered the fact that you might go through all of this hardship, hassle, and trauma for a couple of years, and wind up with nothing? It’s called “failure to state a claim” or “summary judgment.” It happens. Sometimes even a jury will stiff you.
Are you absolutely sure you don’t want to just quit and go to work someplace better?
Comments from employers, employees, and plaintiffs’ lawyers are welcome!