The door slams behind you as you blindly make your way to the elevator. Avoiding eye contact, you hastily pass the desks of your former colleagues. Dazed, you wonder if you can pay the following month’s mortgage and how on earth you will afford to pay for health insurance for your asthma stricken six year old. Your last performance review was last month. As usual, you had been assured that your performance exceeded expectations. So you cannot believe what just took place between you and your employer. His last words repeatedly and senselessly echo in your ears: “Elaine, I regret to inform you that the company is restructuring and has no choice but to let you go.” You are stunned that after six years of loyal service, you have been treated so unfairly. You suddenly recall you had recently informed HR that you had been offended when your supervisor made several comments about how sexy you looked in a particular dress. You also remember that the last time you asked him to leave work early because your son had had an asthma attack he had frowned and said “again?!”
Something smelled rotten. You are determined to sue your employer and punish him for this unjust treatment. You hesitate and wonder if your family can handle the stress of litigation. Should you sue?
As with most legal questions, the answer is “it depends”.
Oftentimes plaintiffs overestimate the strength and value of their case, either independently, or because an attorney eager to take on the case promises to recover for them unreasonably high damages amounts that ultimately cannot be recovered. In such circumstances, even when a plaintiff ‘wins’, there may be no clear winner, because the amount of recovery - which may substantially diminish after the costs, the attorney fees, and the income taxes are deducted - may simply not be worth the emotional investment made in the course of litigating the case.
As for the emotional stress of initiating a lawsuit, it is usually significant. Commonly, employment litigation is a painstaking process that can last well over a year or two. It generally does take its emotional toll on the family of the parties involved, and particularly on the parties themselves. This is especially true during depositions, when the opposing counsel harangue the party being deposed with endless questions as they tirelessly attempt to undermine his or her credibility and question the party’s motives, as well as at mediation sessions when the mediator and opposing party try their bests to convince the plaintiff his or her case doesn’t have the fraction of the value the plaintiff is convinced it has.
If you are a prospective plaintiff, before deciding whether or not to sue, it is crucial to consult with an honest and experienced employment attorney to determine the strength and weaknesses of your case. If after this consultation your attorney is genuinely unsure whether the case against your employer will stick, perhaps it is better to let go. Don’t take your termination personally. Be defined as a person by who you are, not by what you do. Remember that no one is indispensable, no matter how much they seem to be so in the moment. Remember also, that generally California
But if you feel truly wronged and if the law appears to support your position and the facts are sufficiently supportive and corroborated by one or more credible witnesses, it may be a good idea to sue your former employer. Before doing so, ask your attorney how much he or she predicts your recovery may be, and based on what calculation. If the amount of money your attorney predicts you may recover is acceptable to you, proceed to aggressively prosecute your case. Before doing so, consider any severance payment your employer has offered you and weigh its value against the current market demand for your skills. For instance, if you are relatively confident that you may find another job within six months and the proposed severance agreement offers you a sum equivalent to six month’s pay plus co-pay on your current health insurance, it may be a good idea to accept it. If you think you might possibly sign the agreement, don’t impulsively demand more favorable terms. First, your employer may be rightfully concerned that offering you more favorable terms might possibly expose the company to discrimination suits by past and future employees who have or may sign the company’s standard severance agreement. Second, the law may consider your demand as a counter offer and thus, a rejection of your employer’s offer. (See, e.g., Ferguson v. City of Cathedral City, at http://www.courtinfo.ca.gov/opinions/documents/E051039.PDF.)This means that technically your employer would not be required to make a severance payment to you at all, although for all practical purposes, your employer may well allow you to sign an agreement containing a release of all claims after your negotiations fail if the facts appear to be sufficiently in your favor and if your employer does not want to deal with a lawsuit.
If you have been fired from your job and believe your employer has violated your legal rights, and if you are considering filing a lawsuit against your employer, contact The Karson Law Firm and make an appointment for a candid and thorough case evaluation. For more information, visit www.karsonlawfirm.com.
Copyright: The Karson Law Firm, 2011
