This Information is not meant to be a substitute for legal or professional advice.
It is the reader's responsibility to verify that the facts and general advice given here apply.
While filing a suit may generally not be worth the effort, consulting with an attorney to help you evaluate your situation and develop an action plan is. Early advice can in fact prove extremely helpful in setting accurate expectations on both sides ‹ yours and your employer's.
Finding the Right Counsel
Personal referrals can make a huge difference in tapping into the right network. They speed up the process and solve several problems immediately: you'll know the attorney's reputation from whoever recommended him or her, and the employment litigator will feel some "extra" connection to you and want to help. If the person referring you is another attorney, even better.
There's nothing like peer recognition, but be careful not to fall into someone's lap because the attorney is your best friend's uncle. Even if you start with a general practice attorney, probably an attorney who specializes in employment litigation will ultimately know best how to proceed.
If you have enough time but limited money, state and county bar associations listed in the phone book as "State Bar of Minnesota" or "the County Bar Association Lawyer Referral Service" are a good place to start. If all else fails, call a local law school and ask for the professor who specializes in employment law or for the phone number of your state's Continuing Education of the Bar. These organizations and people may also be able to provide phone numbers of referral sources.
State and county bar association referrals can be excellent, initial, cost-effective options if you have the luxury of time and just want to be educated in the "what ifs." However, when the stress is high and events are changing rapidly, this option can have its limitations. While the initial consultation fee may be nominal, perhaps $50 or $100 versus the $150 or $200 of a well-known employment litigation specialist, the timing here may be too slow if you're being pressed.
You won't know until you meet this attorney (or any attorney) for the first time whether your case has merit or whether you and the attorney will be able to work well together. Nor will the state or county bar provide the referral attorney's reputation or track record in litigating employment matters. The referral is based on who is coming up next on "rotation" within the discipline you require.
See information in the FirePower! Emergency Address Book for your city.
Contingency relationships vs. hourly billing
Whether you structure a contingency or hourly relationship with your attorney, if you live in a major metropolitan area, expect to spend anywhere from $150 to $300 for your first meeting. You may be frightened to spend money just when you're losing your job, but this is no time to avoid securing professional advice. Always ask whether there are additional monthly charges, i.e. do you pay for secretarial services, copying, and postage? This is usually part of the routine.
Remember that attorneys are not just for suing -- but for advice. You may simply need someone to bounce ideas off or to explain the tax implications of what is being offered to you. Whether you are paid regular wages in your settlement or receive compensation for damages or emotional distress (which may have a different tax treatment), each circumstance is different. You must consult counsel to know the tax implications of your particular situation.
In contingency relationships, you usually pay an initial consultation fee, anywhere from $100 to $250, plus perhaps a retainer for proceeding with further work on your behalf. (You will probably also be paying administrative charges for mailing, faxes, secretarial help, etc., which are billed and due monthly.) At the end of your negotiation with the employer, your lawyer ultimately shares in the outcome. Should you be successful, be prepared to split the spoils 30/70, 40/60, or 50/50 between the law firm and yourself. The final percentage will often depend on whether you put up any "up-front" moneys in return for the attorney's accepting the case or whether the entire matter has been handled on a contingency basis alone. It is also possible to structure a relationship where the lawyer's fee is a percentage of the difference between the settlement originally offered to you and what you ultimately receive -- plus expenses, of course.
Be aware too that percentages or "splits" between you and your attorney vary according to the stage at which your case is settled. If your case comes to closure before the beginning of final trial preparation, the attorney might receive 35 percent of your net recovery. (This refers to the sum remaining after subtracting all the costs and expenses.) If your claim is settled after the beginning of final trial preparation through the end of the trial, then the percentage to the attorney might be 40 percent. These are not fixed percentages; they vary greatly depending on geography and on what you have specifically negotiated with your particular attorney.
If your case actually goes to trial, you must also be prepared to pay for depositions and other court costs whether the relationship with your attorney is on a contingency or hourly basis. As you might imagine, these can amount to thousands of dollars -- even in relatively small cases -- which often makes pursuing legal action prohibitively expensive.
Hourly relationships mean exactly that. You will be billed at perhaps $85 to $150 or more per hour for each hour the attorney works on your case. These rates also vary according to both geography and who within the firm is doing the work: a principal, an associate, or a paralegal. Again, there are extra costs for faxes, mailings, photocopying, word-processing, telephone and travel expenses, and so on. In the hourly option, you take more of the risk. If your case is successful, you usually keep more of the end result.
Let's imagine that a reputable and successful law firm with four partners receives fifty phone calls a week (2500 calls a year) from employees seeking advice on terminations and layoffs. Of all the calls, 85 percent are screened and rejected over the phone, with perhaps eight people of the fifty invited to come in for first appointments. Of the 350 cases accepted by the firm in a year, 150 will require just one consultation and no further follow-up. Of the remaining 200 cases, 170 will be negotiated with the goal of achieving a better severance package, and the remaining 30 cases will go to trial.
Who are you, the employee?
What evidence do you have to support your claims?
Who is the employer, the defendant?
Is it a large corporation with resources to pay a settlement, a nonprofit, or a shoestring operation that is about to go bankrupt? (Obviously, a busy attorney won't want to spend time trying to sue a company that's about to go out of business. A case might have better merit if, for example, a large employer invaded a company's pension plan.)
What evidence does the defense (the employer) have?
What are your damages?
What are your future employment prospects?
Be aware that employees have the duty to mitigate; that is, you have the responsibility to seek new work and not milk your case unjustifiably. Therefore, what efforts have you put into finding new work? What are your employment prospects? Do you have a new job?
Do you know anything about your company's defense counsel?
Are There Existing Prejudicial Conditions?
What kinds of claims are involved, and when do the statute of limitations expire for each?
Does the company have insurance coverage for this type of claim?
What is the possibility of recovering attorney's fees in this case?
Overall, in most states, employees are protected if they are fired or terminated on the basis of any or some of the following categories: race, color, religion, national origin, ancestry, marital status, sex, pregnancy, age, physical handicap (which may include AIDS), and medical conditions such as cancer. Most states also further protect employees from an employer's retaliation for such actions as "whistle-blowing," serving on juries, military service, union or political activities, refusing to take a polygraph test, or being unwilling to commit illegal acts.
Sample Federal Statutes
Antidiscrimination statutes: these prohibit the employer from terminating an employee on the basis of race, color, religion, sex (including pregnancy), age, handicap, or veteran status:
Antiretaliation statutes: these prohibit the employer from terminating an employee because the employee exercised rights extended by protective laws:
Within the United States, each state has its own protected categories as defined by its Equal Employment Opportunity Commission. This agency may be able to assist you, but only if your complaint falls within quite stringent guidelines. (See Your Rights in the Workplace, by Dan Lacey, published by Nolo Press.)
For example, if you are discriminated against based on age, race, sex, religion, country of origin, or physical handicap, these may be protected categories in your state. General abuse is not.
Each state has its own time limits to file such complaints, and your attorney can tell you whether a complaint filed after you have actually been fired would be taken seriously or viewed solely as a nuisance.
California Statute of Limitations
Other options for filing complaints include your individual state's equivalent of the federal Equal Employment Opportunity Commission. For wage or commission disputes, you can file with your state's labor commissioner's Wages and Hours Commission. If a company has gone bankrupt or run away with your 401K money, you should file with the U.S. Government Pension and Welfare Benefits Administration. If conversations with the company's health insurer indicate your premiums have in fact not been forwarded to the carrier, notify your state's insurance commissioner. Whatever you have paid has an excellent chance of being recouped and credited to your account, and the insurer will usually arrange to offer you individual coverage under a conversion plan.
Be aware that every agency you file with is going to evaluate whether or not to pursue your complaint, and in this particular economy, they may be too short-staffed to pursue yours. This is not a judgment on whether or not something bad was actually done to you. It is merely a reality check indicating whether or not you should spend your time and energy pursuing this course of action. Additionally, if you are suing your employer in civil court, one action may preclude the other. If, however, the agency decides your complaint merits follow-up and grants you a hearing, the state will appoint an attorney for you if one is needed.
Not Generally Because:
Never underestimate the high personal cost of filing legal action against a company, either through an attorney or a state or federal agency. Proceeding with follow-up action is undoubtedly one of the most draining, emotional, time-consuming, and expensive courses of action to take. It has no guarantee of success.
Generally, the stress level rises once you seek counsel. Whether or not you will be black-balled depends on: