If you’re a worker who is pursuing (or thinking about pursuing) an employment-law complaint, you may have ideas about the monetary value your case is worth. Unfortunately, workers’ own case valuations are usually wrong. Very wrong, in fact.
Workers often come up with wrong valuations because they rely on factors that are important to the workers– such as the obviousness of a particular lie an employer told– but that are often unimportant within legal forums. For example, an employer is legally allowed to tell many kinds of lies and make many kinds of wrong decisions. Only certain lies and wrongs are legally actionable. You’re unlikely to know which is which unless you’re an employment attorney or repeatedly deal with the laws and legal forums at issue. Otherwise, you have no true framework or basis for assessing your own case’s value.
As an employee rights attorney, my sense of a case’s value is influenced by many factors, both legal and practical. These factors include:
It is common for employees (including professional and executive employees) to play the wrong cards, so to speak, during severance negotiations. That is, employees negotiating severance agreements often raise issues to their employers that they believe, incorrectly, provide strong leverage or potential legal claims. Don’t get me wrong. Many employees who are fired and/or approached with a severance agreement do in actuality have potential legal claims that could provide strong leverage in severance negotiations or litigation. Sometimes it takes me a few hours of discussion to identify such material legal issues and evidence, but they’re often there. The problem is, most employees who have winning issues fail to recognize what those winning issues are. And in their negotiations with employers, they commonly focus on issues that seem to be winners from a common-sense perspective (or workplace-observation – or Google-search- perspectives), but are in fact issues the employer’s employment lawyer or HR rep would quickly deem useless in the legal world.
Most employers involved in severance negotiations get the assistance of representatives who have repeat experience with scenarios and litigation relating to job terminations and severance agreements. They are adept at diagnosing issues that could present legal exposure to the employer. Are you? If you think you’re playing a winning hand, but the employer sees the hand is in fact a dud, you may want to have an employee rights attorney review the hand before you set it down. If a proposed severance agreement’s terms are acceptable, of course, there is no need to show anyone any cards. In the end, it’s better to show an employer no cards than bad cards. Bad cards do not leverage better severance terms and may invite negative reactions from the employer that make you worse off. If you think you may have good cards (i.e. potential legal claims with strong merits), consider checking if an experienced legal representative agrees before you share those views with the employer.
I recently received statistical information from the agency that handles Wisconsin-law employment discrimination complaints, the Wisconsin Department of Workforce Development, Equal Rights Division (ERD).
The numbers reveal difficult odds, but not impossible odds, for employee-complainants who have filed discrimination complaints at ERD. I should note that each case is unique, and if you are a worker with a potential or actual discrimination complaint, you should not assume your case is bad (or good) based on the general numbers in this article. For an assessment of your odds, you should talk to an experienced employee rights attorney– and no, it doesn’t have to be me! If you want to review some general numbers, read on.