Like almost everything in the law, the answer to the question about what your employment law case is worth depends on the facts and circumstances of your specific case.
The final amount of money you receive in an employment law case is determined by two components: “economic damages” and “general damages.”
Economic damages in employment cases revolve around your past and future lost wages. Losing a job means losing a paycheck. You are entitled to the amount of money you would have earned in the past had you not been terminated along with any lost benefits such as retirement benefits and health insurance. If you are unable to find a job for a specific period of time or find a job that pays less, you are then entitled to future lost earnings.
To recover damages for future lost earnings (i.e. the amount of money you will lose in the future as a result of the termination) you must prove the amount of your income that you are reasonably certain to lose in the future due to your termination. You also need to obtain a job that pays less and/or has inferior benefits to obtain future lost earnings. If your new job pays more and has better benefits, there maybe no viable claim for future lost earnings.
Mitigation Of Damages
There is an obligation for the employee to find substantially similar work and to return to gainful employment as soon as it is reasonable for him or her to do so. Therefore, the employee, after termination, must proactively and consistently engage in job search efforts to find substantially similar work in the same geographic region where he or she was employed. (This involves similar salary, benefits, hours, responsibilities, skills, and experience.) For example, a medical doctor would need to look for other positions as a physician in his or her community but is not required to accept a job as an over-the-road truck driver which is not similar to being a doctor. Since the employee is responsible for making “reasonable efforts” to find similar work, you should keep detailed records of all your job search efforts, submitted job applications, and job interviews. Otherwise, the employer will argue that you failed to mitigate your damages and are therefore not entitled to past and future lost wages.
General damages refer to the compensation you can receive for all the consequences of your wrongful termination. You can be awarded money for the mental pain and suffering, loss of enjoyment of life, inconvenience, grief, anxiety and emotional distress related to your termination or other adverse employment action. There are many types of general damages. (See California Civil Jury Instruction 3905A.) No fixed standard exists for deciding the amount of these general damages.
General damages are how a wrongfully terminated person gets money above and beyond their economic damages (e.g. past and future lost wages, lost benefits, etc.) The amount of general damages an employer provides through a settlement or a jury awards is usually directly proportional to the extent and severity of the emotional distress. Everyone experiences some level of psychological pain in these situations, therefore, psychological treatment and counseling is often recommended to deal with the emotional impact arising from an adverse employment action. The size of the employer and available employment practices insurance impacts case value.
You should understand that often the value of your employment law case is determined not just by your past and future loss of earnings and general damages but by the size of the employer and available insurance. Even if your case is potentially worth more, small employers (i.e. employers with less than 100 employees) generally do not have the financial means to pay large settlements or verdicts whereas large corporations do. Further, large corporations typically have employment practices liability insurance (“EPLI”) which cover claims of discrimination, harassment, retaliation and/or wrongful termination. That is why many employment lawyers only file claims against larger corporations.
Are Punitive Damages Available To Punish The Employer?
Punitive damages are often an essential part of maximizing the value of employment cases. The purpose of punitive damages it to punish wrongdoing and protect the public from future misconduct, either by the same defendant or other potential wrongdoers. However, punitive damages are not always available against the employer in employment cases and specific legal requirements need to be met. Punitive damages often lead to larger jury verdicts, arbitration awards and higher settlements in employment cases.
How Bad the Employer’s Conduct Was, Is A Component of Your Employment Case Value
The egregious nature of the employer’s behavior and the likeability of you, the plaintiff, are factors that must be taken into account to determine the case value. A commonsense way to look at the value of your employment law case for purposes of settlement or trial is to determine if the specific facts of the case, assuming that other legal requirements are met, evoke a visceral, sympathetic response from you and others. Harassment and retaliation cases typically result in larger damages awards than an employment discrimination case. For example, a woman who complaints about being severely and pervasively sexually harassed by her supervisor and no action is taken to prevent further harassment and/or the hospital employee who complains of health and safety issues in the workplace and then gets terminated shortly after the complaints is a potentially higher value employment case. Also, longer-term employees who have worked at a company for a long time (10 plus years) often result in higher-value employment law settlements and verdicts If there is an arbitration agreement involved, the arbitrator will likely not award significant damages and arbitration agreements therefore decrease case value.
If the employee is not sympathetic and/or engaged in conduct that may have, in and of itself, justified termination, that will likely result in lowering the value of the employment law case.
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