BEFORE YOU SUE: 10 questions every employee should ask
In my never ending research on the internet, I came across an article that purported to answer ten questions that every employee should ask before suing his or her employer. There is nothing wrong with the topic, but the fact that the article was posted on the website of a law firm that represents employers made me think that maybe, just maybe, the advice wasn’t all that impartial.
Now, in fairness, the article contains a prominent but half-hearted disclaimer, and all the advice isn’t bad. But I thought that it might be fun to give my take on his advice (which I paraphrase.) Here goes:
- Are you pretty confident that your employer didn’t just treat you inconsiderately, or unfairly, or stupidly, but actually violated the law?
Original advice: It’s not illegal to treat employees poorly or unfairly. If the boss is a jerk, find another job.
O’Neill’s commentary: There is nothing wrong with the question, but you might not be able to answer it. Get professional advice. Sometimes an employment discrimination lawyer will find a violation that you aren’t aware of. Not too long ago, a client came in with a discrimination case. The discrimination case was plausible, but weak. But she had a good failure to pay overtime case. We settled for six figures.
- 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?
Original advice: You don’t really know. Only the employer knows.
O’Neill commentary: This one is a little odd. The question sounds like the employee should compare him or herself to other employees, presumably to make sure there really is discrimination. But the answer warns the reader that what seems like different treatment might not really be different treatment because of information the employer has that you, the reader, don’t have.
This is just muddled beyond hope. My experience is that the workers are generally quite wise about who is treated how, and why. Often, if not usually, the workers know better than upper management.
- Do you have any back-up?
Original advice: No answer, really, just tells the reader if he or she has evidence and will co-employees help you out.
O’Neill’s commentary: These cases are generally proved, to a large extent, by the documents and testimony of the company. Very few cases make or break on evidence that the client controls. A good employment discrimination lawyer can force the company to turn over critical evidence. Bottom line: don’t think you can’t bring a case just because you think you don’t have enough evidence. Consult with an experience employment discrimination lawyer.
- Do you still work for the employer you want to sue?
Original advice: your life will be a living hell if you sue the company while you’re still working there. Quit instead.
O’Neill’s commentary: It can be extremely awkward to sue your current employer, but it’s just as awkward, and sometimes more so, for the company. Quitting usually makes your case worse. And why should you quit, you’re not the one who did something wrong.
- Speaking of handling your problem in some other way, have you tried to do that?
Original advice. It’s better if you can work things out with the employer, and if you can’t, it makes your case stronger.
O’Neill’s commentary: Most people don’t think about suing until after they’ve already tried to work things out.
- Have you consulted with a trustworthy person who has expertise in employment law, and I don’t mean me or this blog?
Original advice: Consult with an expert, such as an employment discrimination lawyer, the EEOC or HR professional
O’Neill’s commentary. I can’t disagree with the advice to consult an employment discrimination attorney. I’m ambivalent about the EEOC, and I think it’s a waste of time talking to HR people. (The purpose of the HR Department is to protect the company. While most HR representatives know the basic do’s and don’t’s of the laws against discrimination, their job doesn’t involve assessing prospective litigation.
- If you’re planning to sue for emotional distress, are you ready to have your entire life exposed?
Original advice: The employer is going to be able to look into every nook and cranny of your life, your medical records, your psychiatric records and try to convince the jury that your emotional pain and suffering is the result of other things going on in your life.
O’Neill’s commentary: This is not accurate in New York. There are two types of emotional pain and suffering. One, called garden variety emotional distress, is the kind of suffering that normally flows from an event such as being terminated wrongfully from a job. It is not a psychiatric condition and does not require expert testimony to establish. If you claim garden variety emotional pain and suffering, defendant is not entitled to medical or psychiatric records.
There are cases where the employee suffers from a mental illness that is triggered by the conduct of the defendant. Proving this kind of injury is no different than proving a physical injury. It requires medical testimony, and in such a case, the defendant will be entitled to relevant medical and psychiatric records.
- Do you have any other skeletons, and are you ok with having them come out of the closet?
Original advice: Your whole work life is fair game for attack. The defendant can look into your past jobs and dig up any dirt or performance issues from previous employments. Your former boss and co-workers are going to testify about what a bad employee you were.
O’Neill’s commentary: This is way overstated. How you performed in past employments is generally not relevant, and character evidence is inadmissible. The defendant will attack in just about any way possible, but most of the time, there really isn’t that much.
- Have you thought about what you really want out of your lawsuit?
Original advice: Ask yourself, do you want money, revenge, to prove a principal? Depending on what you want, the litigation will be a living hell for you.
O’Neill’s commentary. It is important to have realistic expectations, but those expectations should be shaped by expert advice from an employment discrimination lawyer. If you’re sick, you don’t decide on what kind of treatment to get before your illness is diagnosed. I think this question illustrates the broken premise of the original article. When people come to my office with an employment problem, they aren’t necessarily looking to sue. They have a problem and they are seeking my advice on what to do. If I ask “what do you want to do,” the answer I usually get is “what can I do?”
- 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?
Original advice. You might lose your case.
O’Neill’s commentary. That is certainly true, and that’s why you should get advice from a lawyer who is an expert in employment discrimination law. Not only will an experienced attorney give you a competent evaluation of your case, but if you do decide to bring a lawsuit, your odds of winning are enhanced by being represented by somebody who knows what he or she is doing. Bottom line, if you have a case with merit, the fact that it’s possible to lose your case should not discourage you from filing it. Most cases settle. Weak cases settle for small amounts of money, and strong cases settle for larger amounts of money. In my office, it’s unusual for a client to walk away with nothing.
Litigation is not to be taken lightly. It is a substitute for violence. When you sue, you are trying to take somebody’s money away involuntarily. Nobody likes that, defendants fight back, and a lawsuit can stir up all the emotions of a street fight. Litigation is how we, as a civilized nation, settle disputes. When there is no recourse to a well administered system of justice, people take the law into their own hands. Therefore, you must give serious thought before starting a lawsuit, but if you have been wronged and your cause is just, then a lawsuit is the correct response.