Workers often contact me, wanting to know if they have a good employment-law “case”. Every situation is different, and this blog post can’t say if you have a good potential case. However, there are some general factors that are usually present with good employment cases.
A very good attorney I know, Avi Berk, told me a good analogy for what makes a good case.
A good case, Avi said, is like a stool. A stool has to have three legs. If even one of the legs is missing, the stool falls over and there is no case (regardless how strong the other two legs may be).
Here are the three stool-legs that support good employment law claims.
Leg #1: Liability and proof the employer violated the law.
The first leg is potential liability. That is, a good case has good proof showing the employer violated applicable law(s).
Good proof may be found in certain audio or video recordings, electronically-recorded information, documentation, or witness testimony. Proof that is recorded or documented is usually the strongest, because it “is what it is” and is hard to deny. Witness testimony is more vulnerable, because employers often provide testimony that disputes the employee’s offered testimony. However, even disputed testimony can be a strong form of proof: if it is logical and credible, it will likely be considered by a legal authority.
If proof and facts show the employer violated one or more laws, then potential liability (the first stool leg) is strong.
If an employee rights attorney feels you have strong potential employer liability– after the attorney reviews your proof and applicable laws– that is the best sign that the first stool leg is sturdy. Workers who try to evaluate liability on their own usually misdiagnose what potential laws are at issue. Also, they often overlook potential laws and proof that could support strong legal claims.
Leg #2: Significant damages, i.e. money that could be legally recovered.
Damages are forms of money that can be recovered through a legal proceeding. Actual damages refer to money that a litigant (e.g. a fired worker) lost and/or will lose as a result of the employer’s action. That is, actual financial loss suffered.
Generally speaking, workers with large financial losses have strong potential damages, and a strong second stool-leg.
Good employment claims usually involve significant financial loss, often thousands of dollars in unpaid wages or lost income from a job termination, etc. The employment-law system is in large part designed to “make whole” money lost as result of an employer’s unlawful actions. Workers who were not financially damaged by an employer’s actions have nothing to recover via make-whole legal awards. So usually, workers who have little or no money lost will have weaker potential legal claims.
For some legal claims, there are potential damages that are separate from– and go above and beyond– actual damages lost. For example, some legal claims provide for statutory penalty money or punitive damages that could be awarded to workers. Such damages, if available, could possibly be awarded whether or not the worker had any financial loss or actual damages.
In short, potential damages could include actual damages, statutory damages, punitive damages and/or other forms of damages. If the potential damages that could be recovered are low (or nothing), then potential legal claims are weak.
The legal system requires investments of time, and sometimes significant investments of money by the worker and/or the worker’s attorney. If an attorney works on a contingency basis– where fees are only owed as a percentage (commonly 33-40%) of money recovered from the opponent– that attorney will likely not take on a low-damages case. A contingency attorney must be careful about working long hours on a case that is unlikely to have a significant recovery of damages. After all, 33% of $0 is $0.
For a worker, he or she generally should not pay significant out-of-pocket money on legal fees (e.g. to an attorney who charges fees by the hour), unless the potential case is likely to have damages that far exceed the investment.
The bottom line is that significant potential damages are needed for the second stool leg to be sturdy and support a good potential case.
Leg #3: Viability, i.e. the opponent’s ability to pay what is potentially owed.
The third stool-leg required to support a good case is to have a financially-viable opponent. That is, your opponent or their insurer must be able to pay potential damages. If an opponent has severe financial problems such that they can’t pay money for a legal award, and they lack insurance for employment claims, that likely makes for a bad case, even if the other two legs are sturdy.
Are the three stool-legs present for your employment-law situation? If so, you may have a good potential case. As I mentioned, the three factors above are generally present in good employment law cases. If you want legal advice to determine if your situation makes for a promising potential case, you should consult in detail with an employee rights attorney.