By Don D. Sessions
As an employee rights attorney, the most popular question asked of me is, “Do I have a case?”
The question really is if the violation of these rights justifies the time, effort, money, and risk necessary to seek legal resource. In other words, is the case good enough?
Evaluation of a case includes the following:
Liability
Employer responsibility for a wrong must be proven. In employment cases, such wrongs usually are (A) broken promises, (B) discrimination, and (C) retaliation for whistle blowing or refusal to commit illegal acts. Liability is established through employee handbooks, supervisors’ manuals, written information of employment terms, witnesses, performance appraisal, statistical data or even one person’s word against another.
Of course a case in which there is a 90% chance to prove liability is better than one with a 10% chance. Comparison with other cases decided by the courts or statuary law, clarifies the level of proof required and possible outcomes. Liability is the logical center of every case.
Damages
If liability is an appeal to logic of the brain, than damages seek out emotion of the heart. Damages determines the “tears” in the case and the more tears there are the better the case.
Employer responsibility for a wrong must be proven. In employment cases, such wrongs usually are (A) broken promises, (B) discrimination, and (C) retaliation for whistle blowing or refusal to commit illegal acts. Liability is established through employee handbooks, supervisors’ manuals, written information of employment terms, witnesses, performance appraisal, statistical data or even one person’s word against another.
A wrongful terminated employee who finds a job a few months later, does not have as convincing damages as one who may never find comparable employment.
Collectability
Understanding the employer is essential to the evaluation of an employee’s case. The employer must be financially stable enough to pay for a judgment if a case is won. It certainly does no good to recover a million-dollar judgment if an employer is about to go bankrupt.
Unfortunately, most employment claims are not covered by the employer’s insurance. Because of this fact, many employers are more motivated to resolve these kinds of cases promptly because of the expense of litigation and risk of defeat. The expense of litigation and possible adverse judgment will come directly out of the employer’s own pocket.
Another factor is the attitude and willingness of the employer to resolve the dispute. Even if the liability and damages are not substantial, a case may still be promptly resolved because of embarrassing or sensitive facts. This could ruin an employer because of bad publicity or through government sanctions. This is especially true in cases involving retaliation against an employee because of complaints about, or refusal to do illegalities.
Conclusion
In reviewing all these factors, the very best case is one with high liability, damages and collectability. Even if a case is not strong in all three areas, it does not necessarily mean that the case is not a good one. Many attorneys would be very interested in a case with virtually assured liability but questionable damages. Although the recovery may be small, there will not be much of a fight to get it.
If a case has questionable liability but very high damages, again, the case may be a very good one. Although there may be problems in winning the case, if there is a recovery, it would be so substantial that it would be worth the risk.
If any one of the three factors is extremely low, it may destroy the value of the case.
The best recommendation for a wronged employee is to have his or her rights immediately evaluated by an attorney who is familiar with these cases. This action should be done before the passage of any statute of limitations deadline, so the proper course of action can be determined <<
Don Sessions is an Employees Rights attorney in Mission Viejo CA.
I work at Arby’s and the franchise owner is Jim Trotter, who owns multiple companies. I am almost 57. I have fibromialgia and arthritis but am able to function well with meidication. I have asked numerous times for raises, for a reliable schedule and for promotions. Instead of giving me extra hours or promoting me, they continue to hire workers who are 16, 17, 19 years old to fill thier manager positions and their front counter positions. Since asking for the promotions my hours have been cut in half. I have not yet contronted them with the suggestion of age discrimination. I however have 3 years of college, years of experience as a mother, and co-owned a family resturant. The younger workers they are hiring are high schoolers with out diplomas or sometimes drop outs from school. I feel that I am more than qualified for the positions and advanced positions in the company. I am afraid to say much more for fear of being fired.
Pam, My suggestion would be for you to speak to an employees rights attorney, rather than your employer. The attorney will probably charge you a fee but you have to find out whether you have a case or not. Most attorney work on a contingency basis which means they only get paid if they win (excluding the upfront fee). You should know that these things are not easy. Unless you have proof that it’s an age issue, I think it might be difficult –but only the attorney can tell you that. Attorneys want to know they have a good chance of winning before they take on a case.
Good Luck
GG Editor
I work in a small CPA office (four employees) and the only male and also 57 years old. My boss just hired a 25 year old female as a ‘temp’ worker, but I suspect that she was hired to replace me at some point in the near future (after tax season) so the boss can go back to an all female office. I just received a $2 an hour raise back in September and have went from $12.00 an hour to $17.00 in less than two years, so I know my performance is OK. Would I have a case is I were dismissed and the temp worker retained?