Employees: Better think twice before suing your employer (four reasons why)

Posted by Robin E. Shea on May 23, 2013

Last week I busted on "my own side" by giving four reasons why employers shouldn't be so quick to fire their employees. To be fair, this week I'll talk about the other side -- four reasons why employees shouldn't be too quick to sue their employers.

DISCLAIMER: I am a defense lawyer. That means that, in any kind of workplace legal dispute, I am on the employer's side, not the employee's side. Always. Even though many of my best friends are employees and plaintiffs' lawyers. The following is not legal advice.

So, you don't have to believe what I'm about to say. But I make this post in good faith, based on my experience and observations in many years of employment litigation.

Are you still here? Cool! Here we go.

1. Even if you got the shaft at work, it is unlikely that you were treated illegally. The law does not require employers to treat their employees like "family," or to be nice, or even to be particularly fair. In fact, employers can usually be downright jerks as long as they are equally jerky to everybody. They can be arbitrary and play favorites as long as they're not making distinctions based on "protected" categories, like race or sex. 

 

Teddy Bears.Tommy_Bear_and_Snuggles.jpgThere is no legal right to a warm and fuzzy workplace.


If you read this blog very often, you know that I am a strong advocate of treating employees respectfully, fairly, and with dignity. So is everybody in Human Resources who's worth a darn. But we feel that way because it's the right thing to do, not because it's the law.

The American legal system would collapse in a heap if people could sue every time their feelings were hurt. Our system is designed to prevent only the worst kinds of behavior -- you know, like murder, armed robbery, and driving 70 in a 55. It's supposed to keep us from being at each others' throats. That's it. Anything more is left to our respective senses of common decency. (Scary, I know!)

If you sue your employer, it won't be enough for you to prove that your employer made the wrong decision, or even that your employer was a no-goodnik. If you don't have a valid legal claim against your employer, then you will ultimately lose your case. One big reason to think twice before you sue.

2. Litigation is long, drawn-out, stressful, and painful. The only people who really enjoy litigation are lawyers. No one else could possibly be that sick. And, here's a secret: not even lawyers are that crazy about litigation. Judges (who are usually lawyers) are always after the parties to try to settle, which would end the case before the judge has to hear it. Lawyers are usually the same way -- they are rarely averse to settlement, although they'll fight to the death if that's what the client wants. Why do you think most courts nowadays have mandatory mediation? If even lawyers don't necessarily like litigation, just think about how much you will hate it.

 

Judge_Judy_next_to_painting.jpg"C'mon, you guys . . . DON'T MAKE US TRY THIS CASE!"


"Well," you retort, "if lawsuits are that bad, then my employer will pay any amount to get rid of it, right? So it's still worth it to sue."

Well, no. Or, at least, not necessarily. You see, your employer gets sued a lot. This is what they call a "cost of doing business" in the United States. It is true that your lawsuit will be stressful and disruptive for your company. But it will be a lot more stressful and disruptive for you, who are not used to the court system or dealing with lawyers, and you don't even know whether it's a trap when the employer's lawyer says hello to you and offers to shake hands.

The distraction and stress of a lawsuit may also make it more difficult for you to do well in your new job. And having to continually dwell on an unpleasant experience (as you'll have to do while your lawsuit lasts) is difficult and stressful.

3. You may find out that your co-workers are not on your side. You feel very strongly that your employer did you wrong. You find a lawyer willing to take your case. You sue, and start taking depositions of all of your co-workers, who were your BFFs when you worked there. Well. It turns out that your BFFs weren't such BFFs after all. They say, "I liked Maudie, but I felt that she was out of line, and in my opinion she was treated fairly." And then you have the co-worker who saw you when you were not at your best, and she testifies about all the things you said to her in confidence when you were having a rotten day. Which are embarrassing. And which do not help your case. On the record. In a verbatim transcript, for cryin' out loud.

What happened to these people?

Most plaintiffs' lawyers will tell you that the co-workers are afraid of retaliation by the company if they don't side with the company and diss you. I am sure that happens sometimes, but I don't think it explains the majority of these situations. What I see most of the time are two phenomena:

*Most people consider a lawsuit an "act of war." They probably were on your side when you all worked together and went out for mai tais and kvetched about what was going on at the office. But that was just gossip, harmless venting. Nobody thought you were really going to sue! And now, thanks to you, they're being dragged in front of lawyers and court reporters and judges and juries, and they're ticked off. And maybe what they said to you in confidence about the boss is coming out -- while the boss is sitting across the table with a stern-looking lawyer in a pinstripe suit. AWKWARD! No wonder they've turned on you.

 

Cocktails_03.jpgJust because they said it over these . . .

 

Judges.jpg. . . doesn't mean they want to say it in front of these.


*Some employees really, sincerely do believe the company was in the right. Is the boss perfect? Of course not. But he's an overall decent guy who tries to be fair and treat employees right. And maybe you shouldn't have been so stubborn/absent from work/insubordinate/lazy yourself.

Recall No. 2, above. Finding out that your co-workers don't support you is one of the "painful" parts.

4. You may be opening up your own life to scrutiny. This is another "painful" part. In order to get more money, and because you really were very upset when you were fired, your lawyer includes a claim for emotional distress in your lawsuit. Next thing you know, the company has asked for your medical and psychiatric records dating back 10 years. And maybe you saw a shrink a few times and have been diagnosed as bipolar. Along with a few physical conditions that are not appropriate to mention in a family blog. Surely you don't have to share that information with the company's lawyers! Do you?

YOU ALMOST CERTAINLY DO. If you claim emotional distress (you don't have to, but you may not get as much money if you don't), most courts say you have put your own emotional condition at issue and the employer is entitled to find out how much of your (just as an example) bipolar disorder was caused by your termination and how much you had all along (in which case the company isn't responsible for it). 

 

Walter_Winchell_Kiss_of_Death_trailer_scrennshot_(3).jpg"Good evening, Mr. and Mrs. America and all the ships at sea -- Norman has seen a psychiatrist three times and says his wife doesn't understand him!"


Your employer may also be able to dig into your past employment record, including that time you got fired from a previous job after you tested positive for angel dust, your criminal background, your five previous marriages, and your history of filing lawsuits. Perhaps you have nothing to hide. But a lot of people (most?) have a few skeletons that they'd just as soon not have the rest of the world know about.

What you probably don't have to worry about

Now, note what I have not mentioned: (1) That your employer will fire you for filing the lawsuit (assuming you did it while still employed); or (2) that your employer will blacklist you, and you'll never work again if you sue. The reason that I did not mention these is that they very rarely happen. Retaliation -- either during employment or afterward -- for filing a lawsuit in good faith against an employer is usually illegal, and almost all employers know that. If it happens and you can prove it, you might have a pretty good case. But don't bet on being able to do that.

 

Of course, I'm not saying you should never file a lawsuit against an employer, but it should almost always be a last resort. It's better to try resolving your dispute through the company's grievance procedure or open-door policy, or by going to Human Resources. If you're terminated, you may be better off negotiating a nice separation package and shaking the dust from your feet. If all of those fail, and if you've taken a good, critical look at your own performance and behavior, and still feel strongly that you were mistreated, then by all means consult with a lawyer who represents employees in workplace disputes. But keep in mind these hidden costs of litigation that you'll face, no matter how strong your case may be.

Image credits: Wikimedia Commons.

EEOC's Strategic Plan and 5 tips for employers seeking a good mediation

Posted by Robin E. Shea on February 24, 2012

I was all set to write this week about the EEOC's new Strategic Plan for 2012-16, but it was so darned vague, I'm not sure what I can meaningfully say about it. (In Roget's Thesaurus, or maybe it was The Devil's Dictionary, somebody said "strategic" was a synonym for "so indefinite that you can easily take the credit for achieving your goals, and no one will be the wiser if you failed. See also 'win-win.'")*

*I made this up.

As far as I can tell, the EEOC plans to concentrate more on systemic discrimination, to be more aggressive in enforcement, and to "make examples" of employers. By 2016. I think.

In short, no more Mr. Nice Guy. There you go.

Of course, if it's true that the EEOC plans to crack down on employers, that means employers may be looking even harder than they already are for ways to avoid litigation. Fellow blogger and worthy adversary Donna Ballman had a great post recently about "marathon mediations" and why they are bad for employees. I especially liked a comment that she received from an employer's lawyer. But I agree with many of Donna's points, too.

Her post inspired me to provide five tips for employers who want to have a successful mediation. Unlike the EEOC's Strategic Plan for 2012-16, these will be delightfully simple and crystal-clear.

DISCLAIMER: The following is coming from my mediation experience in the school of hard knocks. I am not a mediator, but I've represented a lot of clients in mediations, and I know a lot of mediators. ("Oh, you've worked in television? No, but I watch a lot of it.")

1. Use the EEOC's mediation program if you can. I think I've busted on the EEOC enough for one day, don't you? As my regular readers know, I am actually a big fan of their mediation program. Mediation at the EEOC stage (as opposed to after litigation) has a number of advantages for employers:

*It's free.

*It's early. You get to meet and hash things out before anyone is too far invested in their position. If you settle, the case is over, practically before it began. That means minimal attorneys' fees, lower settlement costs, and avoiding the heartaches and hassles of even defending the charge, much less a lawsuit. Mediation at this early stage usually also means as a practical matter that a charging party will be willing to settle for less than a lawsuit plaintiff. I've had EEOC mediations settle for no money but only an agreement by the employer to provide some training. (Don't count on this, but it does occasionally happen.) Once a lawsuit has been filed, you can usually forget about this kind of easy resolution.

*In my experience, the EEOC mediators are fair and not dead-set against the employer.

One other thing about EEOC mediation -- the EEOC likes for the parties to mediate. So, let's say you got an offer to mediate with your latest EEOC charge and you threw it in the trash. Then you read my blog post today and decided, "By gum, Robin makes some really good points. Now I would like to mediate, but I guess it's too late because I threw away the forms and the deadline to request mediation has passed."

Not to worry! Either you or your lawyer can contact the mediation unit for your EEOC. If the case hasn't gotten very far, and assuming the charging party is willing, there is a 99 percent chance that the EEOC will still let you mediate.

(Sorta-true story: A client forgot about an EEOC charge and never submitted a response. A year later, the EEOC sent them a letter about their failure to send in a position statement. At that point, the client remembered the old charge, and we contacted the EEOC, explained what had happened, and asked to mediate. Even after a year's delay, we were allowed to mediate and everything worked out fine.)

Unfortunately, to use the EEOC's program, your ex-employee has to have filed an EEOC charge, duh. So, if your case doesn't involve a discrimination claim, you may be stuck with "lawsuit" mediation.

2. Mediation is not the place to dazzle with your legal brilliance, or to verbally tear apart your ex-employee. (Plenty of time for that later, lol!) Years ago, I heard an EEOC attorney say that 95 percent of charges filed had no legal merit but were filed because the employee's feelings were hurt. I haven't been keeping score, but that sounds about right to me. (At the EEOC stage, anyway. By the time an ex-employee retains an attorney who thinks the case is worth filing a lawsuit over, the odds that the case is meritless decrease.)

Conf Table.100502-G-8744K-021_Plaquemines_Parrish_President_speaks_at_conference_call_.jpgIf you have a "hurt feelings" case, a kind word from your side can go a long way toward achieving a resolution that is good for everybody.

So . . . I don't think it's productive to bash the employee in an opening statement at mediation. Smile. Be courteous, especially if she is there by herself. It's fine to explain what you did and why, but at a mediation try to do it in a nice way. "Everybody liked Susan. She was a nice person, and she did her job well. Unfortunately, after she got her 5,000th attendance point, we had no choice but to terminate her employment." 

If you did something insensitive-but-legal, let her know you're sorry. "In hindsight, I wish we had communicated better what our criteria were going to be for that reduction in force. Susan, I'm sorry about that. But please realize that we made every effort to be fair and non-discriminatory throughout this process."

You get the idea.

Donna Ballman says that employers go on and on for half an hour in their opening statements. That has not been my experience. When I'm in a mediation, I let the ex-employee go on and on, but our side makes only a brief response - no more than five minutes, maybe 10 if the case is complex. With all due acknowledgements that the ex-employee is not Satan and acknowledging where our side could have been more sensitive.

You can always be more "frank" with the mediator about your side of the story in the private session that follows the joint opening session.

3. As Donna says, see how far you can get with opposing counsel before you step into the formal mediation session. This is especially true for "litigation" mediation. It could save a bundle on mediator fees, as well as your time.

4. Even if you and the mediator are best buds, don't act like it while the ex-employee is around, especially if he is there without an attorney. If you're an employment lawyer, you know a lot of mediators. You are probably on a first-name basis with all of the EEOC mediators in your area. You know the other mediators from Bar Association meetings, social events, and other mediations. Maybe you're even a mediator yourself.

Don't flaunt that in front of the ex-employee. If he has an attorney, you may be able to get away with it, because his attorney will know the mediator, too. But if he's representing himself, you're just screaming, "We are the 1 percent, and you are the 99 percent! We are 'the man,' stickin' it to you, the little guy!"

Then, when the mediator tries to get the ex-employee to accept your offer of $2,500 (which was actually extremely generous because the case had no merit whatsoever) . . . well, let's just say the ex-employee will not be inclined to accept it. Or, he may accept it but go home and stew about how palsy-walsy you were with that mediator. Then, if he's 40 or older, he may exercise his right to revoke the settlement during the seven-day waiting period.

5. If you reach a deal, make sure something is signed before you leave, even if you'll put together a formal settlement agreement later. I thought this was obvious, but a mediator friend (woops! see #4, above) told me that it's not and that many mediators just leave it to the parties to finalize the deal once an agreement has been reached. The mediator and I think this is a terrible idea. You don't have to get a full-blown, fancy schmancy Settlement Agreement and Release of Any and All Claims From the Moment of the Big Bang Through and Including the Present Date while everybody is still there, but you ought to sign off on the following basic terms while you're all still in the room together:Big bang.Cosmic_History_020622_b.jpg

*The parties have reached a settlement. Employer will pay $whatever by such-and-such a date, less applicable withholding/with no withholding and a Form 1099. In exchange, Employee will request dismissal of Charge No. 12345 (or the parties will stipulate to dismissal of Case No. 12345) now pending.

*Employee will provide a full release of claims to Employer.

*The parties will keep this settlement confidential.

*Employee is solely responsible for payment of taxes on the settlement amount. Employer is not responsible for payment of any taxes on the settlement amount.

*(If applicable) Employer will provide Employee with a neutral job reference/amend the personnel record to show a voluntary quit instead of a termination/whatever other non-monetary terms the parties agreed to.

*In the near future, the parties will enter into a fancy-schmancy Separation and Release Agreement that provides more details regarding the above terms, and other terms typical in such agreements.