Sue Your Employer

Many state and federal laws protect American workers from being mistreated on the job. These same laws also help employees and job applicants seek justice if they have been treated unfairly or subjected to illegal discrimination. Once your legal rights have been violated, you have every right to sue an employer. Perhaps you were discriminated against during the hiring process, targeted for an unfair layoff, sexually harassed on the job, or wrongfully terminated. Regardless of the injury, you can seek redress by bringing a lawsuit.

Steps

Documenting the Incident

1. Record your impressions of the incident. Whether you were terminated, harassed, or denied the ability to use medical leave, write down all the circumstances of the incident while they are still fresh in your mind.
   • Create a timeline of events: when you were notified and who contacted you. Document the names of everyone involved.
   • Keep copies of all communications. Be sure to have a copy of any communication that relates to the incident, including emails, notes, and letters. If you can get a copy of voice mail messages, do so.
2. Secure a copy of your personnel file. If you were terminated or denied promotion, you should have a copy of your personnel file. Ideally, you will already have kept a record of all official communications, such as prior reprimands or commendations, as well as informal comments and information about raises.
   • Employers sometimes like to hustle people out of the building immediately after being terminated. You may not have time to return to your office and make copies of these documents to take home with you.
   • Store copies of annual reviews, correspondence, emails, and employee handbooks at home. In this way you will have easy access to this material.
3. Keep pay stubs and financial records. If your lawsuit relates to pay, then you will need to prove how much you have lost in money. Pay stubs will help establish the amount of wages you lost.
4. Speak to co-workers. Someone may have witnessed the incident and could act as a witness. Reach out to them and ask them if they remember the incident. If they are willing, have them write out a description of the incident.
   • Try to get personal contact information as well. Employees often leave jobs, and your witnesses may leave before your lawsuit ever gets to trial. By maintaining current personal contact information, you can always reach them in case you need them to testify.
   • Don’t record people without their permission.
5. Send a follow-up email to your supervisor. If you are fired or denied a promotion in person, follow up with an email to your supervisor summarizing the contents of the discussion. This might be the sole record of the meeting that you have.
   • Stay professional and don’t send the email until you can avoid being argumentative. The purpose of the email is simply to document the discussion.
   • If you do not feel comfortable sending an email, then simply make notes about the conversation as soon as possible.

Resolving the Dispute Informally

1. Review your employment contract or collective bargaining agreement. These contracts often contain provisions requiring you to try to resolve workplace issues through a grievance procedure. Read your contract and see if there is a clause to that effect.
   • If you do not have a copy of your contract, contact Human Resources and ask for a copy.
2. Meet informally with your supervisor. Some businesses require that employees meet with their supervisor informally to discuss any grievance. Informal meetings allow the parties to exchange ideas and possibly reach a resolution to the dispute.
   • Even if you are not required to meet informally, it may still be a good idea to do so. Many times the other party is unaware of how their actions or statements are perceived by others. By articulating how you were wronged and what the person or company can do to relieve those feelings, you will alert them to their behaviour.
   • Meeting informally is also a great way to find out the policies for filing a formal grievance. If you do not receive a satisfactory resolution informally, ask who you should contact to file a formal complaint.
3. Bring copies of supporting documents. The person you meet with might want to see any documentation that you have.
   • Only bring copies. Preserve the originals at home or in another safe space. If you hand over originals to another person, he might lose them.
4. Consider using a mediator. Some employers have trained mediators on staff. You can use a mediator during the informal resolution stage.
   • Because of the costs of mediation, you may not want to use a mediator unless one is provided by your employer free of charge. Trained mediators can cost over $1,000 a day.
   • Mediation still remains a possibility after you file an official grievance or after you start a lawsuit. At that time, it is much more likely that the business or organization will foot the bill in order to avoid going to court.
5. Ask about next steps. The person you meet with might not be able to resolve the issue immediately. Even if you have to wait for a decision, you should ask about next steps in case you are unhappy with the proposed resolution.

Filing a Grievance

1. Contact the appropriate department. If you are unhappy with the resolution ultimately offered by your supervisor, then contact the name of the individual or department that your supervisor directed you to.
   • If you belong to a union, you should also check with your union representative. Union rules often provide for representation during the grievance process, whenever evidence could be obtained that could be the basis for discipline. You will want to get them involved early.
2. Study the rules and procedures. Each company or business has its own rules and regulations. For example, you may have to file within a certain amount of time. Also, the company will list who you must contact first. You should be provided with a handout explaining the procedures; alternately, the company may point you to a website.
   • Follow the procedures as specified. If you fail to do so, the company may simply ignore your grievance and you will have to start the process all over again.
3. Secure a copy of the grievance form. The form may be printed or online. You should fill out the form in whatever form makes you most comfortable.
   • Some online forms might not provide you with a printout of the information you submitted. Instead, you might only get a confirmation code. If given the choice between an online form or a hard copy, you should fill out the hard copy so that you will have a record.
4. Complete the grievance form. Each grievance form is different, but they all should ask for similar information:
   • Your name and job title.
   • Department, work location, and job classification.
   • Name of immediate supervisor.
   • The nature of the grievance. Often you will be provided a space to type out your complaint.
   • Requested relief. Type out how you want your employer to resolve your issue.
   • Your signature and date.
   • Keep a copy of your completed form and only attach copies of any documentation or evidence.
5. File early. You must meet deadlines to file a grievance. These vary by business or organization but should be outlined in the policies and procedures that you secured when you initiated the grievance process.
   • If you must mail a grievance form, check to see if the deadline applies to the date the grievance form is received or the date when it is mailed.
   • Send the form certified mail so that you know it has arrived.
6. Participate in the investigation. You may be contacted by a company investigator charged with looking into your grievance. The person may wish to interview you in person or over the phone.
   • You can prepare by reviewing your documents, including what you wrote down shortly after the incident. These documents can refresh your memory.
7. Get your employer’s decision in writing. Whatever your employer decides—to partially compensate you, totally compensate you, or deny you completely—be sure to get it in writing.

Analyzing Your Case

1. Determine your options. If filing a grievance did not resolve the issue satisfactorily—or if filing a grievance was not an option—then you should consider your next steps.
   • If you were terminated, figure out if you work in an "at will" state. Every state except for Montana is considered at will. This means employers can terminate your employment at any time.
   • There are important limitations to “at will” termination. For example, your employer cannot fire you for an illegal reason, such as gender or racial discrimination, or in retaliation for you exercising a legal right.
   • You may also not be fired for refusing to perform an illegal act.
   • Also, an employer may not make your work environment so uncomfortable that he can anticipate that you will quit. This is called "constructive discharge."
2. Look for an employment contract. If you signed a contract when you began working, that contract should spell out the terms of your employment. Your employer must abide by these terms and conditions.
3. Gather employee handbooks and policy manuals. Some states will consider handbooks, policy manuals and other documentation as creating “implied contracts” between employer and employee. Your implied contract might have granted you greater rights than what exist in the contract proper.
   • Language in a handbook can sometimes create an employment contract, but it must be sufficiently clear that a reasonable employee would believe that a contract is being offered. For example, language such as “shall” or “must” or “never” before a promise is sufficiently clear evidence of a contractual promise.
   • But a clear disclaimer stating you have been hired “at will” and that the handbook is not a contract trumps any implied contract.
4. Review a union contract. A union contract supersedes the “at will” doctrine and also states other employer obligations, such as guarantees for sick time or vacation. Review the union contract to assure yourself that your employer is acting contrary to it.

Hiring an Attorney

1. Make a list of local employment attorneys. Employment law often differs from state to state, and the facts of your case are unique. Only a qualified employment attorney can offer tailored legal information and assess the strength of your case. To find an employment attorney, you can search for one online, by typing “employment lawyer” and then your state into a search engine.
   • You can also search through online phone directories, such as Yellow Pages, Yellow Book, or Switchboard.
   • Visit your state’s bar association website or call them and ask for a referral. State bar associations keep referral lists which can be searched by area of legal specialty.
2. Gather referrals from people you know. Ask friends or business associates if they have ever worked with an employment attorney. Ask them about their experience with their attorney. As in other areas, a referral from someone who has had direct experience with a professional and whose judgement you trust can be a reliable guide.
3. Review each attorney’s website. Once you have a list of attorneys, run web searches to look for their website. It is standard practice today for lawyers to have a website. Here are a few things to look for when you find it:
   • Prior employment law experience. Attorneys should list representative cases they have worked on. Look to see that they have worked on employment law cases during the past couple years.
   • Information about employment law. Many attorneys keep blogs on their websites. Check to see if the attorney has written articles about employment issues. This will show that she is engaged in this area of law.
   • Professional affiliations or specialties. Employment attorneys may belong to the National Employment Lawyer Association or another affiliation. These organizations often have search capabilities to help you find a lawyer.
   • Grammar and spelling. An abundance of grammar and spelling errors signals that the attorney is sloppy. An attorney should be able to use proper grammar, or at a minimum know how to turn on the spell check.
4. Check online reviews. Many websites offer free reviews of businesses, including law firms and individual attorneys. Some places to look for reviews include Find Law, Avvo, and Yahoo Local.
   • Be mindful that negative reviews often outnumber positive reviews since those who are upset are often more motivated to leave reviews. Furthermore, reviews are one-sided, offering only the client’s perspective.
   • Find out if the attorney has earned a Martindale-Hubbell rating. "AV" is the highest ability/highest ethics rating based on the opinion of lawyers and judges who know the attorney. Only 10% of American lawyers have achieved this rating. Only 50% of all lawyers have earned any rating, so A-B-C rated lawyers are in the top 50%. Moreover, you cannot have an ability rating unless you have earned the highest ethics rating (the "V" rating).
5. Schedule a consultation. At the consultation, the attorney will try to get a sense of your case. Be honest, and be sure to bring copies of any documents requested.
   • To get a sense of the attorney’s experience, ask how many employment law issues he has worked on during the past 3 years. Also ask if he has handled a case about your specific issue, e.g. retaliation or harassment.
6. Ask about fees. Most employment lawyers will represent you under a contingency fee agreement. Under this arrangement, an attorney only gets paid if she wins your case. Typically, she will get around 30-40% of the award amount.
   • Under a contingency fee agreement, you would still be responsible for costs, such as filing and service fees. Ask for an estimate and then budget for it.
   • The fee arrangement should be spelled out in the engagement letter. Be sure to read it and confirm that the fee arrangement listed is the same as the one you discussed with the attorney. If not, call and ask why it is different before signing.
   • An attorney’s willingness to take an employment case on contingency is a good sign that you have a solid case.

Pursuing Alternate Dispute Resolution

1. Engage in settlement negotiations. You may engage in settlement negotiations with your employer at any time. During negotiations, you and your attorney meet with your employer and its attorney to discuss settling the case. Most employment cases end up resolved outside of court, so take settlement discussions seriously.
   • To prepare for negotiations, you and your lawyer should discuss how much your case is worth. You have many different kinds of remedies available to you: back pay, hiring, promotion, reinstatement, front pay, reasonable accommodation, or other actions that would make you whole.
   • For example, if you were illegally denied a promotion, you could be promoted and awarded back pay. If you were illegally fired, you could get reinstated and back pay. If the employer illegally refused to hire you, then you could be hired and awarded back pay.
   • You may also seek attorney’s fees, expert witness fees, and any court costs.
   • Although your employer could reach out to you and propose settlement at any time, it is more likely to do so later, after a motion for summary judgment has been denied.
   • Your attorney owes you an ethical duty to notify you of every settlement offer. It is always your choice whether to accept the offer or not.
2. Consider mediation. Mediation is similar to negotiation, except a neutral third party (the mediator) meets with both you and your employer to discuss your case. You will have an opportunity to speak to the mediator alone as well as in front of your employer.
   • In mediation, the mediator does not decide who is right and who is wrong. Rather, the mediator tries to nudge each side toward a resolution that is mutually acceptable.
   • Mediation is generally non-binding, meaning that either party may walk away from the table at any time.
   • One advantage of mediation is that it can be completed much faster than a trial. A mediation can often be resolved in 3 months. A court case could drag on for several years.
3. Consider arbitration. There may be a mandatory arbitration clause in your employment contract, in which case you agreed to submit all disputes to an arbitrator instead of to a court. In arbitration, a private person (and not a judge) sits and hears the evidence presented before rendering a decision for one of the parties.
   • Employers often seek arbitration because it is private. In a lawsuit, almost everything is public. In order to protect trade secrets or company intellectual property, the company will have to file motions to seal, which is time-consuming and costly. By participating in arbitration, the company can preserve its privacy in a cost-effective manner.
   • Arbitration is often binding. Once the arbitrator makes a finding, you have limited ability to overturn the decision.
   • You may have an attorney represent you in arbitration, which is usually held in the arbitrator’s office and not a courthouse.
   • Even if you have a mandatory arbitration clause, you can still report illegal discrimination to the EEOC. Although the arbitration clause applies to you, it does not prevent the EEOC from bringing suit for illegal and discriminatory employment practices.

Filing a Complaint

1. Find the appropriate forum. Should you decide to proceed with a lawsuit, then you will need to initiate the suit by filing a complaint in the appropriate court or administrative agency. The proper forum is determined by the type of lawsuit you are filing.
   • If you have a breach of contract claim, then you may file for suit in civil court.
   • However, if you allege discrimination, you probably need to exhaust administrative remedies first at either the state or federal level. If you allege discrimination based on race, religion, sex, national origin, age, disability, color, genetic information, or retaliation, then file a complaint with the Equal Employment Opportunity Commission (EEOC).
   • You may also file discrimination claims with state agencies. For example, in California, almost all plaintiffs file with the California Department of Fair Employment and Housing because the state agency's rules are more advantageous that the federal ones. In California, you can also request an immediate right to sue and skip the administrative process.
   • Constructive discharge suits are brought in both state and federal courts.
2. Perform a self-assessment. Visit the EEOC’s online self-assessment tool to find out if the EEOC is the right agency for you to file with.
   • You have 45 days from the discriminatory action to contact an EEOC counselor. Be prompt.
3. Fill out a complaint. You initiate lawsuit by filling out the appropriate form. The correct form depends on whether you are suing for breach of contract or filing a complaint for discrimination/retaliation with the EEOC or a comparable state agency.
   • In state court actions for breach of contract, you may secure a blank complaint form from the County Clerk. You will fill in your name as plaintiff and your employer’s name as defendant. Your attorney will do this for you.
   • You initiate the EEOC process by first contacting the office. An EEOC counselor will discuss your rights with you. After your final interview, your counselor will give you a letter with information about how to file the complaint.
   • State agency rules may differ from the EEOC. If you choose to file with a state agency, contact them about proper requirements and procedures.
4. File soon. Whether filing a breach of contract claim in state court or a complaint with an administrative agency like the EEOC, you cannot sit on your rights. You must file before certain deadlines.
   • Statute of limitations for breach of contract vary by state. In California, you must file suit within 4 years. In Illinois, you have 10 years.
   • You must file a formal complaint with the EEOC within 15 days of receiving notice from your counselor about how to proceed. File the complaint at the EEOC office where you were counseled.
5. Allege illegal employment action. In order to win a lawsuit against your employer, you will need to prove that the action taken was either in violation of the contract or against the law. You will have to state the specific violation in your complaint.
   • If suing for breach of contract, you should quote the contract provision your employer violated. For example, if you were promised employment for 3 years, quote the provision that says that. Attach a copy of the employment contract to your complaint.
   • In an EEOC formal complaint, you must include your name, address, and telephone number; a short description of the discriminatory events; why you believe you were discriminated/retaliated against (e.g., race); and a description of any injury you have suffered. The complaint must also be signed by you or your lawyer.

Proceeding with a Lawsuit

1. Perform discovery. After filing a lawsuit, each side is able to request documents in the possession or control of the other party. They may also ask that witness answer questions, either in writing or in an oral deposition. If you don't already have copies of your employee handbook or personnel file, then you can request them now.
   • Your lawyer should ask for copies of internal checklists or procedures. Companies routinely require that checklists be followed when firing someone. If your employer deviated from established protocol, you may have evidence that discrimination or retaliation was the real motivation.
2. Sit for your deposition. In addition to exchanging documents, each side is allowed to question witnesses before trial begins in order to establish what each witness knows. As the plaintiff, you most assuredly will be asked to sit for a deposition.
   • Prepare thoroughly. Sit down with your attorney and run through questions you will be asked. Be sure to do as many deposition preps as necessary to feel comfortable.
   • At the deposition, be sure that you understand the questions thoroughly. Also, never guess; answer, “I don’t remember” if you do not remember information.
3. Oppose the defendant’s motion for summary judgment. Many employment suits are dismissed before trial. A defendant will allege that there are no factual disputes to be resolved at trial and that the defendant is entitled to judgment as a matter of law.
   • Your attorney will argue that factual issues remain to be resolved.
   • Your attorney may also file a motion for summary judgment for you as plaintiff. These are rarely granted.
   • If the defense motion is denied, there is a strong chance that your employer will contact you to settle. You have a stronger hand after the defendant’s motion for summary judgment is denied. Talk with your attorney about what a good settlement amount would be.
4. Prepare to testify. If no settlement is forthcoming, then you should prepare for trial. As the plaintiff in an employment lawsuit, you will be called to testify at trial. You will be asked about your job performance and about your working relationship with others. Prepare the same way you did for the deposition.
   • Be prepared for embarrassing information to be shared at trial. For example, if you were denied promotion or fired, then your employer will argue that you were a terrible employee who warranted the adverse action. Your employer could also dig into your prior employment history.

Going to Trial

1. Pick a jury. In an employment lawsuit, you will have the option of using a jury to decide your case. In civil trials, the number can vary by state, with juries of 12 or 9 being common. In many states, civil juries do not have to be unanimous.
   • A panel of jurors (maybe 12 at a time) is called up and questioned by the judge and attorneys. The plaintiff and defendant can each strike a juror for cause (such as admitting bias). You are also given a certain amount of “peremptory” challenges. Peremptory challenges are those where you do not have to tell the judge a reason for striking the juror.
   • You should question jurors about their work history. Jurors will be guided by their own work experience. You should always ask jurors whether they believe they have been discriminated against at work. Also ask how it affected them.
   • Jurors who believe the discrimination prevented them from accomplishing their goals could be favorable for the plaintiff. But those who believe they overcame any discrimination and still accomplished their goals could favor the defense.
   • Do not rely on demographics. The education, occupation, or marital status of a juror may be somewhat useful. But a person’s experience is much more important in shaping their worldview.
2. Deliver an opening statement. Your attorney will deliver an opening statement to the jury. An effective opening statement will provide the jury with a sneak peek of what the evidence will show. Your attorney should focus on your key facts—those facts that are most persuasive in your favor.
   • Your attorney also should account for “bad facts.” A bad fact is something that your opponent will bring up to support his case. Your attorney can mention them early in the opening statement to take the sting out of them.
   • Be confident but brief. Jurors are paying attention to tone, words, and nonverbal behavior.
3. Present evidence and examine witnesses. Your attorney will need to call witnesses and introduce documents into evidence. You will also be called to testify.
   • Prepare by reading all relevant documents in the case, including but not limited to your employment contract, work evaluations, and your account of the incident. Also review your deposition testimony. Familiarizing yourself with your prior statements will allow you to avoid being impeached by them.
   • Dress appropriately. Men should wear a dark, conservative suit with a white shirt and dark tie. Women should dress appropriately in a conservative style as well.
   • As you testify, speak confidently and address the jury. Do not be rattled when defense counsel asks embarrassing questions.
4. Cross-examine the other side’s witnesses. Your attorney will want to undermine the defense witnesses. She can do this in several ways: by impeaching them, by emphasizing limitations on their ability to perceive, or by eliciting testimony that they have been convicted of a crime of moral turpitude.
5. Deliver a closing argument. In the closing argument, your attorney will sum up the evidence and explain how it supports your position. Be confident as your lawyer talks and look the jurors in the eyes.
   • After explaining how the evidence supports your case, your attorney will also rebut the defense’s evidence. She will explain why their witnesses are mistaken or not credible; or, explain how the other side’s evidence actually supports your own interpretation of events.
   • Begin and end strong. Research reveals that people remember the first and last things that they hear. Your attorney should therefore begin and end with strong points by reminding jurors of the most persuasive evidence in your case.
6. Appeal if necessary. If you lose at trial, you may have the right to an appeal. You will have to draft a Notice of Appeal.
   • Many courts have a Notice of Appeal form. After the verdict, your attorney can ask the judge or clerk for the form.
   • There are timelines you must meet to appeal. You should meet with your attorney soon to decide whether an appeal is worthwhile.

Tips

• Make sure your case is serious enough to support a lawsuit. Take the time to discuss each of your complaints in detail with your attorney. While no one deserves to be treated disrespectfully, it’s entirely possible that your concerns are unlikely to lead to a successful lawsuit. If this is the case, it is better to find this out early.

Warnings

• Lawsuits can be grueling and take a long time. It’s never pleasant to have any employer comb through all available data pertaining to your work and personal life. It can also be very draining emotionally to go through protracted litigation. Many employment lawsuits last 3-5 years.
• Whether you win or lose, you may lose your good reputation. During lengthy employment law litigation, you may discover that no one is interested in either granting you an interview or in hiring you. Even if you do win the lawsuit, the amount awarded may not be large enough to tide you over until you can find a new job.

Sources and Citations

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