Earlier, 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.
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.
"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
*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.
*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
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).
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
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.
Visit the Employment and
Labor Law Insider for additional insights from Robin Shea, a partner with the national labor and employment
law firm Constangy, Brooks & Smith, LLP.
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I was being paid as an independent contractor for many years. I know now (I didn't realize in the beginning) that I should have never been classified as an independent contractor. I worked in the office 5 days a week, was provided a workspace, computer, etc. I was paid the same hourly rate every 2 weeks. I was able to say what times of the day that I would come in, but it had tobe 5 days a week and I couldn't keep switching it up all of the time. I hadtosetmy schedule and stick with it for awhile. I was not able to set my own pay rate - he decided what it would be and I was not allowed to work from home.
Can I sue for the back taxes that I paid because I was classified as an independent contractor and not a employee?
Hey there I went to a cheese and wine night at my bosses house I work for a large company I'm new to the branch and the company, I got a little bit to drunk and apparently was misbehaving I was knocked unconscious by my supervisor and woke up with grazes all over my head and face my throat felt like it had been crushed and I have had concussion for te past few days I am unsure of what happened because of being knocked out I have no memory should I do something about this I am not an aggressive drunk and I'm positive they used excessive force they because it is out of work hours am I out of luck we work remote and all housing is provided by the company, would love some feedback