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Advice on Suing Your Current Employer Before You Have Actually Been Fired 

advice on suing your current employer
An employee who feels that he is being mistreated, discriminated or retaliated against by his management, but who continues to work for that employer, may consider filing a lawsuit against that employer.  The question is whether suing your present employer is a good idea on a practical level and whether it will be worth it.. Every situation is different and there is no universal answer to this question. However, a few key facts should be considered in determining this, as in many cases suing the employer while you are still their employee is not a good idea. Here are three of the basic things you need to keep in mind when considering whether you should be suing the employer you are currently working for, for discrimination, harassment or any other employment related claim:

1. Do you actually have a case? Many employees are treated badly and unfairly every day. They are being yelled at, bullied (whatever this might mean), micromanaged, falsely accused of unsatisfactory performance or of violations that they never committed, have their job duties, compensation and schedule changed without notice, etc... However, this type of conduct is not illegal, unless there is specific evidence that the true reason for this bad treatment is discriminatory (i.e. due to age, race, disability, sex, religion, etc...) or retaliatory (i.e. due to engaging in one of the specific protected activities). Otherwise, there is simply no case to pursue. 

2. How likely are you to find a job if you are fired? Even though terminating an employee in retaliation for filing a lawsuit is illegal, no one can stop an employer from choosing to violate the law and fire you anyway. In many cases, a job is better than a lawsuit, especially if you are older and your chances of finding a new job are lower than that of a younger person in your profession and in your geographic area, or if your field is particularly competitive. This doesn't mean that you have to put up with all the bad things that your employer does to you, but perhaps starting with more gentle steps before filing a lawsuit, such as asking another manager or your human resources department for help with your situation or transferring to another department within your company could be a better first step. 

You might think that trying to talk to the upper management is useless, but if you work for a larger company, you should take advantage of the opportunity to go up the ladder and seek help from those who are in charge of your managers.  Often, asking for help, rather than demanding or threatening with legal action is much more effective, as one higher ranked VP can make a big difference in changing/improving your work situation. In any event, it certainly doesn't hurt to try before taking any legal action.

2. Your Case Has Inherently Lower Value If You Are Still Working for the Employer. Just about any discrimination/retaliation award is based in large part on your wage loss. Therefore, if you haven't been terminated, and you are still employed by the same employer that you are planning to sue, you don't have any wage loss or your wage loss is limited (i.e. due to not being promoted, etc...).  At this point, the only damages you arguably have are your emotional distress resulting from being mistreated. However, without actual loss of wages, emotional distress alone will not count for much, except in particularly egregious cases, such as blatant sexual harassment, repeated racial slur and abuse, violence at workplace, etc. For many people it's frustrating to hear from one lawyer after another say that no claim should be made until they are fired, but knowing the legal reasons behind this should help you understand why they say this. 

3. On The Other Hand, Waiting Is Not Always A Good Idea. If you believe that it's only a matter of short time before you get wrongfully terminated, it will be well worth it for you to consult with an experience attorney to discuss what you can do to enhance your claim before you get terminated, so that once you get fired, you are in a better position to pursue your wrongful termination case if and when you decide to do so.​

Watch This Video Before Filing A Case Against Your Present or Former Employer 

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Law Office of Arkady Itkin - San Francisco & Sacramento Injury and Employment Lawyer
We represent employees and employers in employment and wrongful termination cases, as well as victims of serious injuries in San Francisco, Oakland, Sacramento, San Jose, Palo Alto, San Mateo and throughout Northern California. We all represent businesses and start-ups in a wide range of business and employment issues and disputes. 


57 Post Street, Suite 812, San Francisco, CA 94104; Tel. (415) 295-4730; Fax. (415) 508-3474; [email protected]
  • Home
  • Employment Law
    • Wrongful Termination >
      • At-Will Employment
      • Termination After Unfair Warnings and Write-Ups
      • Union Grievance, Workers Comp and Wrongful Termination
      • Labor Code 970 Claims
      • Promissory Estoppel and Employment Contracts
      • Implied Contract Claims
    • Discrimination >
      • Proving Discrimination
      • Age Discrimination
      • Disability Discrimination >
        • Protected Disabilities
        • Medical Leave / Disability Accommodations
        • Job Reassignment As A Disability Accommodation
        • SSI Disability Benefits and Your Court Case
        • Sample Request for Reasonable Accommodation
      • Pregnancy Discrimination
      • Race Discrimination
      • Sample Discrimination Complaint
      • DFEH and EEOC Investigations
    • Retaliation >
      • How to Prove Retaliation
      • Dealing with Retaliation While Still Employed
      • Retaliation for Complaining
      • Whistleblower Retaliation
    • Harassment
    • Defamation at Workplace
    • Prof. License Defense
    • Leaves of Absence >
      • Medical Leave as Reasonable Accommodation
      • FMLA Entitlement and Reinstatement to Work
      • CFRA Leave
      • Employers' FMLA Notice Obligations
      • Paternity Leave (FMLA)
      • Sample FMLA Leave Request
    • Wages / Overtime Claims >
      • Wage Claims
      • Employee or Contractor
      • Exempt / Non-Exempt >
        • Admistrative Exemption
        • IT Support Specialists Compensation
        • Computer Professional Exemption from Overtime
        • Recruiters / Account Executives Exemption
        • Complaining About Being Misclassified
      • Vacation Pay / PTO
      • On-Call Time Compensation
      • Deductions fr. Commissions
    • Unempl. Benefits Appeals >
      • Tips for EDD Phone Interview
      • Unemployment Benefits Appeal Hearing Representation
      • CUIAB Hearing Tips
    • Employment Law Blog
    • For Employers
  • Personal Injury
    • Five Tips For Injury Cases
    • Slip-and-Fall Injuries
    • Assault and Battery
    • Recorded Statements
    • Repairing Your Vehicle
    • Unpaid Medical Bills
    • Injury Law Blog
    • Medical Malpractice
    • Police Excessive Force
  • Practice Areas
  • About
  • Results
  • Submit Case
  • Contact
  • Resources
    • Consultations
    • Workplace Rights Checklist
    • Deposition Tips
    • Mediation Tips
    • Effective Mediator
    • Suing Current Employer
    • Severance Agreements
    • Workplace Investigation
    • Arbitration
    • Statutes of Limitations
    • Healthy Litigation Mindset
    • Trial Tips
    • Working Remotely
    • How To Find The Right Lawyer For Your Case