Suing boss easier said than done


Busy employment lawyers say they get up to 100 calls a week from workers thinking about suing the boss. Many of these people have gripping stories, but, on average, less than 1 percent of their cases winds up as a lawsuit.

One reason is that most states permit "employment-at-will," meaning workers have no guarantee of a job. A company can let you go for any reason -- or no reason -- so long as it doesn't breach a contract (which very few workers have) or break the law. So you don't have a claim unless it fits into some legal framework, like discrimination or sexual harassment.

Even if you have grounds for a lawsuit, your case may be hard to prove. Take illegal discrimination, based on race, color, sex, religion or national origin. You'd have to show that discrimination because you belong to one of these protected classes was a "substantial factor" in the company's action, says Gary Laturno, a San Diego, Calif., employment lawyer.

In response, expect the boss to offer some other explanation. For example, when replacing older workers with younger people who earn less, businesses often argue that the dismissal wasn't because of discrimination, but because performance had slipped or the company needed to cut costs. Unless workers have evidence (like witnesses and documents) to corroborate their claims, they can have a hard time proving them, Laturno says.

Assuming you're able to prove your claim, the next question is how much money you can win. The answer may be far less than you think. Typically, workers just get back pay -- the salary and benefits they would have earned from the time they were fired until the trial.

During this period, you have what's called a "duty to mitigate damages" by finding comparable work. Your award then gets reduced by whatever you've earned at the new job.

"How about all those multimillion-dollar jury verdicts that periodically hit the news?" you might ask. What usually makes them so high is punitive damages -- designed to punish the company for its conduct. Still, your chances of getting hefty punitives "are probably one in a million," Laturno says.

For all these reasons, it's best to treat litigation as a last resort. Often there's a less painful alternative, like mediation, an informal and voluntary dispute resolution method in which you and the company negotiate a settlement.

Pub Date: 8/18/96

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