Do I Have A Case?Litigation
Is It Illegal to Fire Mom?
“Here’s what happened to me. Do I have a case? Is there anything I can do?”
The first reason that many people call my office is to find out whether they have a legal claim. Something has happened at work. Maybe they have been fired. They know that what happened was not right, but was it illegal? (The follow-up question is usually “What is my case worth?” I will discuss that in the next section.)
In employment law, this question can be surprisingly difficult to answer, especially when compared to other areas of the law. For example, if you are married and you want a divorce, you have a case. The family lawyer can skip directly to considering the strength of your position. Likewise, if you get arrested, like it or not, you have a case that a criminal lawyer can help with. Not so with employment law.
Just because you have been treated badly at work or fired does not mean you have a case. In fact, most people who have been mistreated at work or fired were not treated illegally. This is worth repeating: most of the time, bad behavior by your boss is not illegal. Stated another way: dysfunctional workplaces are not illegal (even if they are bad business).
That said, many laws apply to the work place, even in a right-to-work state (as most states are). It is not uncommon for people who talk to me to be surprised (and relieved) to learn that their legal rights may have been violated.
There’s yet a third variation. An employee comes to me believing that her rights have been violated. After talking to me, she realizes her rights have been violated—just not the ones she thought. For instance, the person who believes she has been subjected to a “hostile work environment” learns that having to put up with a boss who yells is not a hostile work environment. But after talking to this employee, I learn that her employer has not paid her for overtime, even though it routinely required her to work more than forty hours per week. So this is a l so worth repeating: you might have a case against your employer, even if it is not obvious to you that you do.
So, the answer to the question “Do I have a case?” is very likely “It depends.” One way to explore this question is to call a lawyer. If you do nothing else, do that. I am routinely surprised when I hear stories of people whose rights were blatantly violated at work who never did anything about it or who waited too long to file a claim. Don’t be one of those people. You may not want to bring a lawsuit, but at least find out—if only for your own peace of mind—what your rights are.
Now, to get the most effective use out of the call to your lawyer, do what you are doing now. Or if you are advising a friend, tell him or her to do this. Educate yourself. Certainly, you are not going to be able to learn a complex body of law by consulting a few online resources or even by reading this book. But with a bit of effort, you can get a sense of (1) whether what happened to you is possibly illegal, and (2) if so, which facts of your situation are important.
Let’s take a simple one. Many discrimination cases are enforced under Title VII of the Civil Rights Act of 1964.This act applies only to employers with fifteen or more employees. That’s an easy question for you to answer. But before you did some reading, you likely had no idea that the number of employees was important. Knowing that will help maximize your time with a lawyer. Right upfront you can say, “I work for Construction Contractors. It has only ten employees, so I know I am not protected by some discrimination laws.” You get bonus points if you say, “I think this means Title VII does not apply.” This does two things. First, it saves time with your lawyer. Second, it telegraphs to your lawyer that you have taken the time to educate yourself. For most lawyers, this makes you a more attractive candidate for representation.
Here’s a word of caution, however. Don’t beak now-it-all or pretend you are. Most attorneys welcome a client who has taken the time to try to educate herself. But most attorneys are wary of employees who have discovered their inner lawyer and now want to play that part. Lawyers want a client who can be a productive participant in the case, not one who tries to drive the case from the back seat.
What Are Your Chances of Success?
This is the most obvious question, and it is impossible to answer with certainty, even for experienced lawyers. However, it is possible to make an educated guess. Here are some factors that an attorney will consider:
- Did your employer do something unlawful? Sometimes it is difficult to deter mine whether your employer actually violated the law. (As you know, your employer can behave badly without crossing the line. So, although you may have been mistreated, you don’t have a case to bring to court.)
- Do you have an employment contract? The next thing to determine is whether you have an employment contract. If so, you need to see whether the contract provides you with any protection. For instance, the contract may state that you can be fired only “for cause.” The contract may also control other matters that will affect whether you can get a severance agreement and what type.
- If you are like most employees, you do not have a contract. You are what is known as an “at-will” employee: that is, your employer can fire you for any reason—for example, it doesn’t like your attitude, your work, or the color of your shirt—as long as the reason does not violate federal or state law. But it is worth emphasizing: even at-will employees have workplace rights. I often hear from people who think that, because they are at will, they have no recourse if their employer mistreats them. Wrong! If you employer violates anti-discrimination law, for instance, it is liable. It does not matter if you are an at-will employee.
- Does the employer fall within the guidelines set for thin the law? Another initial issue to determine is whether your employer is covered by federal and / or state law. Many federal laws—for instance, ones that protect against race and sex discrimination—require that an employer have a minimum of fifteen employees before they even apply. So, if your employer has fourteen employees, federal anti discrimination law does not protect you.
However, the state you live in may provide additional protections. For instance, while generally no additional protections are provided to employees in Virginia, both the District of Columbia and Maryland have laws that protect employees subjected to discrimination. Note that in states with laws that protect employees, you can bring a lawsuit under both federal and state law.
Did you file your claim within the applicable deadline? Employment law is full of arbitrary time limits that can knock out even the best of claims.