What’s Your Career Worth?: A Practical Advice Guide for Managing The Fall Out From a Wrongful Termination
Cast Into the Sea Without a Preserver
If you’ve just lost your job, your mind is probably a jumbled mess. In our money-driven economy, so much of our self-esteem is tied to our jobs, which are a fundamental part of our identity. A job is much more than just a source of income—it’s a way to contribute to society, the economy, and to derive a feeling of purpose and direction in life. Our social lives and activities are enhanced by our work. We make friends at work, go to lunch with our co-workers, and participate in sports leagues through our employer
Now, poof, that’s all gone. Losing one’s job involuntarily feels like being thrown into the sea without a life preserver. You’ve lost your source of income, self-confidence and your purpose. You’re wondering what your co-workers are going to think about you now. And you’re worried that your spouse, partner or other significant other will view you as a “loser” because you’ve been terminated. Job loss is traumatic under almost any circumstances.
If the job loss is the result of unlawful conduct by an employer, the feelings of loss can be even more severe. Add to the toxic mix of emotions resulting from a “normal” termination feelings that your legal rights have been trampled upon, and that your employer is deliberately trying to silence your voice, and you’ve got a toxic recipe for depression, anxiety, sleeplessness, loss of appetite, and other
Don’t lose hope! You may have recourse through our legal system.
Whatever you do, don’t quit!
Many people who consult an attorney are so frustrated with their employer that they want to quit. They are tired of dealing with their supervisor’s harassment, discrimination, illegal activity, and unfair treatment and they want do immediately separate to avoid dealing with such outrageous behavior
If you quit, they win and you lose. While there are certain instances where an employee can recover economic damages against an employer where the employee has resigned, they are rare. The doctrine of a wrongful constructive discharge is a legal construct where the employee argues that the employer made the conditions of employment so intolerable that no reasonable employee in the employees shoes would ever stay. The Courts have interpreted this doctrine narrowly-basically, the conduct engaged in by the employer must be totally outrageous (e.g., physical assaults, death threats, rape) before the employee can resign and collect damages for past and future wage loss.
So, in most instances, a resignation precludes recover of any damages for lost wages, benefits, and earnings. In order to collect these damages in a lawsuit, the employer must involuntarily separate you from you employment, either through a termination for cause, or a layoff.
If you are a current employee, and are being subjected to unlawful conduct by your employer, there are many things you can do to protect your rights, such as complaining to your supervisor, going out on temporary medical leave because of the stress, or going to HR. Whatever you do, you should consult with an attorney if you have not yet lost your job to get some guidance.
If you have already been terminated unlawfully, you can pursue an action to collect damages. Also, if you have been demoted, or past over for a promotion unlawfully, you may have a claim for lost wages (the difference in wages, benefits, etc. between your current position and the one you lost, or the one you should have been promoted into.
But, if you resign, it’s basically like putting up a white flag and surrendering your legal rights. You’ll also lose any claim you might have for unemployment benefits if you resign. So, it’s important that you “tough it out” for the short term until you can get some good legal advice about what to do.
But the jury doesn’t just hand over a big pot of cash. The purpose of monetary damages in employment law is to make you whole: to compensate you for what you lost because of the employer’s actions. You will have to prove not only that you suffered losses because of the employer’s wrongful actions, but also the amount of those losses.
What’s My Case Worth?
Let’s say you’ve been unlawfully sacked and are considering hiring a lawyer to sue your former employer for damages. You want to know how much money you’re likely to recover. You want to know how much money you are likely to get from a judge, jury or arbitrator for your case. And you want to know the information before you file a lawsuit.
So, what’s your case worth? The answer is: It depends and is not easily susceptible to exact calculations. The value of a case depends on a variety of factors, the judge, the jury, and you. In all cases, you will be entitled to damages by the judge, jury or arbitrator.
Losses to the Pocketbook: Past and Future Wage Loss
You are entitled to recover damages for the money and benefits you would have earned if you had not been wrongfully terminated. This would include damages for unpaid wages, overtime, or other compensation the employer has withheld.
However, this amount is reduced by any money you earned after being damages continue to add up at the rate of $1,000 per month. You may also recover any bonuses and lost benefits (medical and dental insurance, pension and 401k benefits, profit sharing and stock options) if you are wrongfully terminated.
If you are a high-wage earner, and you are out of work for a significant amount of time following the termination, despite your best efforts, your damages will be significantly higher than if you are lower wage earner and get a comparable job immediately after your termination. For example, if an executive earns $1,000,000 per year, is wrongfully terminated, and then gets a job with an annual salary of $750,000, he/she might be able to recover the $1,000,000 for the past wage loss, plus an additional future wage loss of $250,000 per year (the difference between the salary lost ($1,000,000) and the mitigation salary of $750,000, for a period of years. These amounts would be adjusted to net present value. Usually, an economist will have to testify as to the wage loss, because it involves complicated calculations of net present value, mitigation losses, and other issues.
If the employee is earning $15 per hour, and gets a job in 30 days following the unlawful termination that pays $15 per hour, the wage loss is very small. So, a lot of the value of your wage losses will depend on your salary, when you get a new job, and how much the new job pays.
Any amounts that the employee has earned since the termination will be subtracted from the lost wages damages. So, if the employee secures a part-time job, earnings from that job will be subtracted from the past loss wages award. If the employee goes on disability after the termination due to mental injuries or because of a physical injury, the employer will argue that the disability payment (or unemployment insurance payments) should be subtracted from the award for lost past wages.
An employee may also recover damages for future wage loss. In other words, the jury, judge or arbitrator might project economic damages past the date of the verdict or the arbitration award to compensate the employee for those losses that the employee will incur in the future due to the wrongful termination.
Cut Your Losses
If you are illegally terminated, it’s important to begin looking for a new job as soon as you are able. This may sound easier than it actually is. Many employees who are wrongfully terminated suffer from depression, post traumatic stress syndrome, anxiety and other conditions that will interfere with efforts to find another job. Further, many women who are wrongfully terminated because they are pregnant lack the confidence that any prospective employer would hire an employee who is “showing.” So, they just decide to stay at home and not look for a job, which of course is understandable.
Court impose rather strict duties on wrongfully terminated employees to “mitigate their damages,” which means that the employee must find the same or comparable employment as soon as reasonably practicable following the termination. An employee need not look for or accept an inferior job, or a job in a totally different industry. Also, an employee doesn’t have to move to another city, or state, to recover damages.
The employee can not recover damages for lost wages if he/she fails to mitigate damages. In other words, if the employee sits at home and does not even look for a comparable job, the employer can successfully preclude the employee from recovering damages after the employee would have reasonably obtained other employment if they had only looked.
Employees who have been wrongfully terminated must keep careful records of her/her job search efforts following termination. This gets a little tricky. Because most people do job searches on their computer, they frequently do not keep copies or records of their electronic searches. This can make it difficult for the employee to provide substantiating evidence reflecting the job search in discovery, for example, when their depositions are taken. So, it’s very important to print out copies of all screenshots of the pages that are generated during the search. Print them out and put them into a file. You’ll need them later.
After a termination, some employees are put on disability by their doctors even though they can work. If you can work, you need to let your doctor know, so you can collect unemployment instead of disability.
The Devastating Emotional Effects of a Wrongful Termination
It’s hard to imagine how much emotional pain is caused by a wrongful termination. Employees who are wrongfully terminated, demoted, or subject to a bogus negative review frequently experience severe depression, anxiety, sleeplessness, weight-gain, weight gain, loss of appetite, gastrointestinal problems and other health issues. The emotional impact of an illegal firing can be devastating.
If you are wrongfully terminated, and you have access to a qualified health care professional, either through your own insurance or other sources, by all means use it. If you were really physically ill, you would see a doctor. Mental conditions resulting from a termination are no less worthy of care. Keep a diary describing your mood, feelings, and thoughts relating to the termination. Record any changes in appetite and other physical manifestations of your stress. Keep in mind that much of what you tell the mental health care professional might be discoverable to your employer’s attorney through the discovery process.
Valuation of emotional distress damages is a difficult task. Jury awards are all over the map. One jury might award a significant amount of money for emotional distress. Another jury might award ten percent of that amount in a similar case. The bottom line is that the value of your emotional distress claims really depends on the facts of your case, your judge, and jury.
As a general principle, higher awards for emotional distress damages are more likely in cases where the employer’s conduct is more egregious. The less terrible the conduct of the employer, the less the employee is likely to recover in damages for emotional distress.
Punishing Them: The Risk of Punitive Damages
In cases where the employer has been guilty of fraud, malice and/or oppression, the employee might be entitled to collect punitive or exemplary damages. However, there are strict limitations on the recovery of punitive damages. The employee must prove the fraud, oppression or malice by “clear and convincing” evidence, which is a higher standard of proof than the “preponderance of the evidence” standard applicable to liability issues.
Further, the outrageous conduct must be committed by an officer, director or “managing agent” of the corporation. The “managing agent” is an executive level employee of the company who’s decisions affect significant policies of the corporation. Courts will examine a variety of factors in determining whether or not the person engaging in the outrageous conduct was a managing agent, including the number of employee working under the supervision of the employee, the power to hire and fire, the importance of the duties of the person.
Where punitive damages are awarded, the amount is calculated by the jury based on factors such as the wealth of the defendant, how egregious the conduct, and the profits earned by the activities.
Punitive damages awards are almost always appealed. Therefore, if there is an award of punitive damages, it’s likely to take years before the employee ever sees any money. Also, the United States Supreme Court has put limits on the amount a plaintiff can recover for punitive damages. That amount must, according to the court, bear some relationship to the actual damages (damages for lost earnings and emotional distress).
Make Them Pay Attorney’s Fees
A successful plaintiff in an employment case may recover attorney’s fees pursuant to stature, depending on the nature of the case. For cases brought under California’s Fair Employment and Housing Act, the plaintiff can recover for reasonable attorney’s fees and costs. However, the employer can not recover for attorney’s fees or costs against the employee. The amount of attorney’s fees awarded is up to the judge. After the jury returns a verdict in favor of the Plaintiff, the attorney will make an application to the Court for attorney’s fees. If the judge approves, the attorney’s fees are added to the judgment.
There are attorney fee recovery provisions in almost all of the significant statutes that might provide the basis for an employment action. So, if the employee wins the trial or arbitration, attorney’s fees will be added to the judgment/award in almost all cases.