Employee Tip: Do I Have a Case? Attributes of Good Employment Law Claims

Employees who feel wronged by an employer often want to know whether they may have a legal claim worth pursuing, i.e. “Do I have a case?”   This post will identify common attributes of good employee rights cases.

Please note this post does not provide legal advice- if you want legal advice, you should contact an attorney and discuss your specific circumstances. If you are interested in legal assistance from attorney-author Michael Brown or his law firm DVG Law Partner for your matter, please contact them here:

Generally speaking, an employee rights case is more promising, and more worthwhile to pursue, when several or all of the following factors are present:

• The employee’s matter involves: (1) a loss of wages or benefits; (2) an adverse action (e.g. termination, harassment) taken against the employee; and (3) the adverse action was because of a protected characteristic under discrimination law (e.g. the employee’s disability, age, gender, etc.) OR was because of the employee’s complaints/ “whistleblowing” about unlawful conduct.

Generally speaking, an employee has a better potential legal claim if she has lost wages or benefits due to the employer’s actions.  The wages may have been lost due to the employer’s failure to follow wage law, e.g. if the employer failed to pay overtime wages owed under FLSA overtime law.  Or, wages and benefits may have been lost as a consequence of an employer’s adverse action, such as termination, demotion, etc.   As is described more below, the more monies that are lost, the more sense it makes to try to recover that money and invest time and expense in the legal system.

Another common factor of a good legal claim is that an adverse action was taken by the employer.  Adverse actions include: failure to pay wages, termination, demotion, suspension without pay, failure to hire, harassment, and/or making conditions of employment worse.  The more concrete and definable the adverse action, the better the potential legal claim.  For example, it is relatively easy for an employee to prove an adverse action occurred when his employer fails to pay a specific amount of wages, or when the employer terminates the employee and the employee has lost a specific amount of back pay since the termination.  On the other hand, if the employer’s actions are harder to financially quantify- if, for example, a boss “yells” repeatedly at the employee and reassigns him to a more difficult job that pays the same- that employee may have a basis to make a legal claim, but it’s harder for the employee to support the claim.  This is because for this situation (as compared to a job termination) it’s harder to prove that an adverse action occurred and what the specific financial losses or damages are.  The more concrete the adverse action and lost monies are, the better the potential legal claim.

Most of the clients/employees who I represent have been fired from their jobs, and they are seeking back pay dating back to the employer’s termination decision.  However, I should note that a job termination is not critical for several cases (e.g. unpaid wages, sexual harassment) in which the legal system can award large damages (e.g. thousands of dollars for unpaid wages or emotional distress) whether the employee was fired or not.

If an employee is pursuing a lawsuit contesting a termination (and seeking back pay), it is important there is proof that that termination was motivated by an unlawful basis.  There are two general types of unlawful terminations: (1) terminations based on the employee’s “protected characteristics” under discrimination law (e.g. based on disability, age, race, gender, military status, criminal record, or several other characteristics); OR (2) terminations based on the employee’s complaints/”whistleblowing” about unlawful conduct at work (e.g. the employee complained about the employer’s discrimination in the workplace, or its failures to pay workers’ overtime, or its fraud of shareholders, etc. etc.).

For an employer’s termination decision to be unlawful, it must be more than merely unfair– it must violate a specific area of discrimination law, or violate a “whistleblowing” law.  Those specific laws are too numerous to run through here- if an employee wishes to pursue a termination-based claim, it is wise to contact an employment attorney (particularly when a free consult is possible) and run through the possible legal claims, if any.

• The employee is within the legal deadline (statute of limitations).

If an employee is beyond her legal deadline, then her case obviously can’t be pursued no matter how good it is.  For example, an employee in Wisconsin has 300 days from an employer’s discriminatory action (e.g. date of discharge, suspension, harassment, etc.) to file a discrimination complaint.  If the employee is beyond the 300th day after the discriminatory action she wants to contest, then the right to pursue that claim is forever lost.

As another example, several wage claims (e.g. an unpaid overtime claim) have two-year statutes of limitations.  Say an employee wished to pursue overtime wages that he was not paid between January 1, 2005 and June 1, 2006.  If the employee filed a legal complaint for unpaid overtime on May 16, 2008, the employee, because of the two-year statute of limitations, could only pursue wages for the short period between May 16, 2006 and June 1, 2006.  With each day that passed, the value of the employee’s wage claim– no matter how strong the proof– would be increasingly diminished.

Also of note, some types of legal claims have very short statutes of limitations (e.g. OSHA retaliation claim at 30 days, Sarbanes Oxley whistleblower claim at 90 days).

Because of all this, it is important for an employee to evaluate legal claims and deadlines promptly.  Employees who have evaluated their legal claims early can make their legal claims and strategies stronger, and avoid the diminishment of claims and rights.

• The employee has lost (or will lose) a significant amount of wages, income, or other tangible monies.

The legal system is effective at some things (e.g. repaying financial losses) and not effective at others (e.g. “proving a point to the employer”).  Employees who have lost tens of thousands of dollars- for example, employees who were not paid wages owed to them for several months or years, or employees who were unlawfully discharged and out of work/income for several months or years- have tens of thousands of dollars “on the table,” so to speak.  If such an employee wins a legal claim, she will have a significant amount of tangible monies that the legal system can recognize and award to her.

However, all too often an employee will not have significant financial losses or potential damages, yet will rush ahead and file a legal claim.

For example, I commonly get phone calls from employees (prospective clients) in a situation like the following:

– The employee was fired, or otherwise treated adversely, by his employer.

– The employee filed a discrimination complaint with the Wisconsin Equal Rights Division (ERD).

– The employee endured 6-12 months or more of legal proceedings at the ERD.  Along the way, perhaps the employee was offered a financial settlement by the employer (say, $5,000), but the employee felt that amount was too low as compared to the wrongfulness of what the employer did.

– The ERD proceedings become more formal over time, and the employee is required to attend a deposition, or attend a legal hearing, etc.

– The employee calls me, only to hear me say (after his months of effort) that his legal claim has little or no financial value.  I inform the employee that the main financial award the ERD can award is lost back pay- i.e. income and out-of-pocket expenses lost as a result of the employer’s discriminatory actions- and that the employee has noback pay.  For example, if after the employee left the employer he started a new job the next day that paid more, then there is little or nothing that the ERD can award him.  It does not matter how bad the employer’s discrimination was, or how strong the employee’s proof of discrimination is.

These circumstances are counterintuitive for many employees, who understandably (but incorrectly) assume that their ERD case is financially worth more, the worse the discrimination or adverse treatment is.  In reality, the best indicator of an employment law claim’s value is usually the amount of monies an employee has lost.

Again, if an employee has lost significant monies because of the employer’s actions, he or she has more on the table that can be won in a legal proceeding.  And this of course assumes that the employee has proof of legal violations that makes winning a possibility.

• The employee has strong evidence, i.e. documentation, witness statements and/or recordings that proves the employer’s unlawful conduct (e.g. discrimination, retaliation for wage complaint).

Obviously, the more proof an employee has of the employer’s wrongdoing, the better the odds the employee will win a legal claim or reach a favorable settlement.

Good proof usually comes in the following forms:

– Documentation (e.g. the employee has copies of emails from her supervisor admitted her wages are underpaid, or making negative comments about her disability);

– Witness Support (e.g. a coworker who witnessed the employee’s termination meeting is willing to testify that the employer terminated the employer on a discriminatory basis, or in retaliation for the employee’s whistleblowing);

– Recordings (e.g. employee has tape-recording of HR manager threatening to fire the employee over his medical restrictions or wage complaint); and

– Suspect timing  or other strong circumstantial evidence (e.g. the employee was fired one week after returning from short term disability leave).

The better quality of proof the employee has, the stronger the potential legal claim.  It is not enough for an employee to be right: the employee must prove she is right and prove the employer violated employment law.

• The employee has proof of fraud or blatant falsifications by the employer (e.g. the employer gives documents to the government stating an employee will be paid $15.00 per hour, and the employee has payroll stubs confirming the employer only paid him $8.00 per hour).

Some employers falsify documents to the government, or commit blatant fraud in which they pay workers at wages that are less than what the employers report to the government.  This can occur with immigrant workers, such as H-1B professionals.

If an employee has copies of documentation that proves an employer committed fraud (e.g. copies of documents the employer gave the government, and copies of payroll stubs showing the employer failed to pay the wage rates stated to the government), an employee may have very strong legal claims in this situation.

• The employer has the financial resources to pay the legal award or settlement.

It is important the employer can pay for its liabilities if the employee wins a legal claim.  In most situations, this is not a concern.  Most employers have the financial resources necessary to pay the legal award an employee seeks.  Most employee litigants are not seeking dollar amounts that would (if awarded) be so large as to put the employer out of business.

However, there are times when an employer’s financial situation is bad, and presents a major obstacle in a case.

For example, I have had employees contact me with matters in which it was as plain as day that their employers violated the law as the employee claimed, but the employers’ companies had dissolved, or the employer’s owner owed large debts to the IRS or to third party vendors, or the employer’s owner had left the country, or the employer’s financial viability and assets were otherwise in question.  These circumstances raise obtacles for legal claims that may or may not be surmountable.

Summary

Generally speaking, the more factors above that are present in an employee’s legal matter, the better the “case” the employee may have.  Again, it must be emphasized that these are not rigid rules, and that every situation is different.  Employees can benefit by keeping the factors above in mind, and considering where their potential claims may fall on the spectrum of good and bad.  Finally, the factors may help employees identify some areas in which further research, or legal advice, may assist with decisions.

Please note this post does not provide legal advice- if you want legal advice, you should contact an attorney and discuss your specific circumstances. If you are interested in legal assistance from attorney-author Michael Brown or his law firm DVG Law Partner for your matter, please contact them here: