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