Employee Rights

5 Ways to Sabotage Your Employment Law Claim

David Zatuchni

Litigating an employment law claim necessarily involves risk, some of it considerable. There are no guarantees, for instance, that your employer won’t go bankrupt before your case settles, or that you’ll receive a sympathetic judge or jury if your case goes to trial.

However, in my experience, some problems in litigating cases often come from the clients themselves. Don’t get me wrong – I love my clients! But we’re all human, and the following mistakes can torpedo the strength of an employment claim and minimize your recovery. You’d do well to avoid the following:

1.  You fail to document.

This is the most common reason why I refuse to represent potential clients. Most assuredly, discrimination, retaliation, and harassment still do occur in the workplace. However, an employment claim is only as strong as its evidence. For that reason, you must document and report your complaints to management. That means:

Put it in writing. If you verbally complain to your employer, your employer can easily deny that you did if you decide to file or threaten a lawsuit. You need a record that 1) you were subjected to illegal conduct, and 2) you put your employer on notice about it. In my opinion, the best method of documentation is an email describing what you believe to be the illegal discrimination, retaliation, or harassment against you, addressed to your direct manager, your manager’s superior, and HR.

But I have witnesses to the conduct against me! you might think. Witnesses certainly help, but they will have to be subpoenaed and deposed over the course of a lawsuit, which takes time and expense. Sometimes witnesses leave the employer in the interim and are difficult to track down. And while they usually give testimony in line with what my clients expect, sometimes witnesses don’t (for a variety of reasons, including the fear of being fired themselves or wanting to curry favor with the boss for a promotion). Moreover, the key issue is whether management was aware of the discrimination, retaliation, or harassment against you. If neither you nor your witness reported, management has a good argument against being held liable.

Be professional. Any complaints or reports that you submit to management should be neutral in tone. Just set out the facts of what occurred to you without getting angry, emotional, or sarcastic.

Be specific. Some employees, fearful of making waves, make the mistake of documenting that they have been treated “unfairly” or “disrespectfully”. However, being an unfair and disrespectful boss is in no way illegal. What is illegal is discriminating against, retaliating against, or harassing an employee based on race, sex, age, or other protected class. So be specific! State that you believe you were subjected to discrimination, retaliation or harassment based on your protected status – say, as a pregnant woman, or the only employee in your department over 60.

If you need help writing up your complaint and report to your employer, please review this helpful article.

2.  You give your employer an excuse to fire you.

Some employees become my clients after they’ve been fired. However, others sue or threaten to sue their employers while remaining employed. Under these circumstances, it’s extremely important to show up, act professionally and collegially, and do your job to the very best of your ability. It’s true that firing an employee in retaliation for his or her discrimination lawsuit is illegal. Nonetheless, firing an employee for showing up late, botching assignments, and fighting with co-workers is not. Don’t be the employee who assumes that suing the company is a shield against consequences – you’ll only get canned and tank the value of any legitimate employment claim.

3.  You fail to look for alternative employment.

Plaintiffs in employment lawsuits have a legal “duty to mitigate” their damages. In other words, even if you’ve been illegally terminated, you still have an obligation to seek new employment. This means engaging in a good faith search for work. In fact, as part of the discovery stage of litigation, an employment plaintiff can expect to be required to turn over evidence of his or her job search, including records of all positions applied to online over sites like Indeed and LinkedIn.

Now, the damages element of any claim creates a perverse incentive not to look for work. Why? Because if you find a replacement job fairly quickly, at a fairly comparable rate of pay, you haven’t suffered tremendously in terms of lost salary, benefits and the like. Your employer may be less inclined to meet your settlement or litigation demand, arguing “no harm done.”

You still must actively seek work. Trust me, judges, juries, and the governing caselaw do not take kindly to plaintiffs who don’t try their best to find a job, or who turn down available jobs. Practically speaking, this means you can’t be too picky. For instance, let’s say you’re a teacher who filed an employment claim against his school district after being fired. If you’re offered another comparable position, with comparable pay, but turn it down because you’re less impressed with this school district’s location or reputation, it will likely negatively impact the value of your claim.

4.  You’re not honest with your attorney.

When a potential client calls me seeking advice, his personnel file is typically in the hands of his employer or former employer. As such, assuming he’s kept no copies of his performance reviews, I can only rely upon the potential client’s word as to the quality of his work and whether there were any issues that justified his employer’s actions.

I can’t stress enough the importance of being honest with your attorney. Sometimes people are so desperate for legal representation that they withhold information they believe will cause an attorney to turn them down. But rest assured: any poor evaluations, written disciplines, or testimonials about your lackluster job performance will come to light. The employer may voluntarily turn these records over to your attorney before a lawsuit has been filed, or the records may be disclosed later, during the discovery phase of litigation. Either way, your attorney will not take kindly to being lied to and there’s a considerable risk you’ll be dropped as a client.

A work history with a few problems is not necessarily fatal to an employment law claim, but it may impact the amount you can reasonably ask for as a settlement demand. For that reason, an attorney needs an accurate view of your work history in order to inform his litigation strategy and represent you to the very best of his ability.

5.  You’re unrealistic about the value of your claim.

The purpose of an employment claim is to make the plaintiff whole. While the egregiousness or severity of an employer’s illegal conduct plays an important part in calculating the employee’s damages, it’s not the whole story. For instance, in a wrongful termination claim, the prime factors driving damages are (1) what the plaintiff was earning when terminated; (2) how long the plaintiff remained out of work, losing salary and benefits; and (3) if re-employed, whether the plaintiff found a comparable position for comparable pay, benefits and seniority.

Generally speaking, judges and juries look at these factors to determine an amount that will reimburse the employee for the expenses and losses that occurred due to his illegal termination. The point is to compensate, not to grant an outrageous windfall.

Long story short, if you’re serious about settling your claim, it does little good to cling to overinflated expectations. Your settlement demand needs to be in line with reality. For instance, an administrative assistant illegally terminated due to disability is going to get nowhere demanding hundreds of thousands of dollars, when she was earning $35,000 prior to termination and found new work within a couple months.

For more information about assessing the value of an employment law claim, please refer to our article here.

Have questions about whether you have a potential New York or New Jersey employment law claim? Call our offices today for a free consultation, we would be happy to speak with you.

David Zatuchni
David Zatuchni graduated from Northwestern University School of Law in 1995. Since that time, he has exclusively practiced in the field of employment law. For many years, Mr. Zatuchni defended large corporations in all types of employment discrimination lawsuits and labor law matters. Read More

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