What Are the Most Common Types of Employment Litigation?

Many employees face unfair treatment from employers. Some of these workplace issues violate state or federal employment law. This article will explain some of the most common types of employment litigation, including the practical side of what’s involved in seeking legal help against your employer’s adverse actions.

For legal advice about your case, talk to an experienced employment litigation lawyer.

Understanding Common Employment Lawsuits

From wrongful termination to hostile work environments, employment litigation “casts a wide net,” says Lawrence N. Lavigne, an employment litigator at Mark | Lavigne in Springfield, New Jersey. “Employment litigation generally focuses on one of several issues.”

Wrongful Termination

First, there are the issues of wrongful termination. “This is when someone is severed from employment as a result of the employer’s violation of some law,” says Lavigne. “The two major sources would be the laws against discrimination and whistleblower statutes.”

Firing an employee in violation of their employment contract is also wrongful termination. However, without an employment contract, most workers fall under at-will employment. Their employer can fire them or for any reason, as long as it does not violate the law.

Anti-Discrimination Laws

Employers cannot take adverse action against employees based on protected characteristics. Important federal laws against workplace discrimination include:

• Title VII of the Civil Rights Act. Prohibits discrimination in the workplace. Unlawful discrimination affects race, sexual orientation, gender identity, national origin, and religion. Discrimination includes claims of workplace harassment and a hostile work environment.
• Americans with Disabilities Act (ADA). Prohibits discrimination against individuals with disabilities, including the failure to provide reasonable accommodations
• Age Discrimination in Employment Act (ADEA). Prohibits employers from discriminating against employees over the age of 40 because of their age

States and some cities also have anti-discrimination laws. Depending on where you live, state laws could be more robust than federal protections. This means you would want to file a claim in state court rather than federal court for the best outcomes.

A local employment lawyer will understand the employment laws relevant to your claim. An attorney can offer the best legal strategy for your situation. Learn more about workplace discrimination lawsuits.

Retaliation and Whistleblower Laws

Whistleblower laws apply when “somebody believes that their employer is engaged in illegal activity or fraud and they blow the whistle or threaten to go to the authorities and are retaliated against,” says Lavigne.

Employment and labor laws protect workers against retaliation for protected actions. Protected activity can include:

• Reporting workplace safety violations
• Filing a sexual harassment complaint
• Reporting overtime and minimum wage violations
• Participating in a government employment discrimination investigation

Whistleblower laws vary by state. “In New Jersey, it’s called the Conscientious Employment Protection Act, or CEPA.”

Hostile Work Environment

“Another major area of employment litigation is where someone hasn’t lost a job, but they believe they are victims of a hostile work environment,” says Lavigne.

“For example, if a female employee has a male supervisor who is sexually inappropriate, and the conditions of the workplace change because of this discrimination, then even if that employee hasn’t lost her job, she may have a claim for a hostile work environment.”

Hostile work environment claims often involve quitting because harassment at work is intolerable. This is also referred to as constructive discharge.

Additional Employment Litigation Issues

Lavigne adds that employment attorneys “also deal with issues involving equal pay and the disparate treatment of employees due to their personal characteristics or inclusion in a protected class.”

In addition to employment discrimination claims and employer retaliation, there are other issues you could face as an employee, including:

• Matters related to overtime pay under the Fair Labor Standards Act (FLSA)
• Your employer’s failure to pay minimum wage as set in federal or state law
• Workers’ compensation for personal injuries in the workplace
• Misclassifying employees as independent contractors to restrict employee rights

Getting Legal Help in Your Employment Lawsuit

“Regardless of the legal issue, I think it’s very important for anybody who is seriously contemplating legal action against an employer to get legal help,” says Lavigne.

For one thing, “There are statutes of limitations that must be complied with, or you’re banned from filing a claim. So, it’s imperative that if you suspect you’re suffering an adverse employment action, you act to vindicate those rights quickly.”

In getting a legal consultation, the “worst case is that the lawyer will say they don’t think you have a claim,” says Lavigne. But you want to avoid missing the opportunity to take legal action entirely. “I have had people call me and say that something started 10 years ago, but the statute of limitations is two years, so I can’t do anything,” says Lavigne.

Deadlines are critical throughout the entire process. For example, suppose you want to file an employment discrimination lawsuit. In many states, you must first go through administrative procedures with the U.S. Equal Employment Opportunity Commission (EEOC) and obtain a right-to-sue letter. Going through this process takes time and counts down the clock on the statute of limitations.

Preparing for Employment Litigation

Beyond speaking with a lawyer, there are some preliminary things you can do. The first is to document discriminatory or retaliatory employment practices. Having evidence will help you when you speak with a lawyer and take legal action. Evidence may include employee handbooks, pay stubs, and emails or text messages.

Additionally, you can reach out to your employer’s human resources (HR) department to file a complaint. You can also get a copy of the company’s policies and procedures to understand how they deal with claims. Understanding your employer’s approach to dealing with claims is essential.

“Over the years, many employers have required employees to sign arbitration agreements, giving up their rights to file a lawsuit,” Lavigne says. “Many arbitration agreements are very specific that the employee is giving up statutory rights, meaning they give up the protections of the law against discrimination, et cetera. So, knowing whether there’s an arbitration agreement in place is something you would want to know very early on.”

What Can You Get in an Employment Lawsuit?

“One of the first questions I ask a potential client is: What do you want?” says Lavigne. What a client wants will direct the entire process.

For example, reinstatement to a job is not a statutory remedy. Nevertheless, says Lavigne, “We’ve had a number of cases where that’s exactly what we negotiated as part of a settlement with the employer. Under such an agreement, the employer will take the employee back, put something in place to ensure no retaliation, and perhaps pay some legal fees.”

Apart from reinstatement, employees are often seeking monetary compensation. In discrimination cases, compensation can be back wages, future wages, and lost benefits such as reduced pensions. In some employment cases, the court can award attorney fees.

Furthermore, state laws such as New Jersey’s Law Against Discrimination (LAD) allow compensation for emotional distress. The LAD explicitly recognizes that “losing a job, being discriminated against, or a combination of the two things is like going through any traumatic situation and that there will be emotional distress,” says Lavigne.

“Ultimately, there’s no one size fits all. What a plaintiff wants could be money, employment reinstatement, or that the former employer helps place the former employee in a comparable job elsewhere.”

How Much Does a Lawsuit Cost?

“I would venture to say that the majority of employment litigation lawyers handle many of these cases on a contingency fee basis,” says Lavigne. A contingency fee means that the lawyer is only paid if you win the lawsuit. So, there are no upfront costs to getting the legal help.

However, “there are a lot of things that have to go into the analysis of cost. For example, I have potential clients come to me whose cases really aren’t worth a lot of money, but they’re seeking vindication. In that sort of situation, I’m not going to represent them on a contingency fee basis” since that would amount to doing the work without getting paid.

How a lawyer charges for their legal services “is very case specific.”

In addition to considering the value of a case, it’s essential to realize that lawsuits are costly. Fees include:

• Filing fees. “Every time you file something in court, you’re going to get charged,” says Lavigne.
• Service process fees. “You have to pay to have your complaint served by a process server.”
• Deposition fees. You have to pay the court reporter when you do depositions of witnesses. Additionally, “if it’s a non-party witness, you have to reimburse that witness under the court rules for their attendance.”
• Expert witness fees. “If you need an economist to calculate pecuniary losses resulting from losing employment, or a mental health professional to give an opinion on the effects of discrimination or wrongful termination, or medical records from doctors showing the impacts of emotional distress, those reports are very costly.”

Many lawsuits that go all the way to the end of trial can run into the tens of thousands of dollars in legal fees. It’s crucial to consider whether it’s worth filing a lawsuit based on what you can get through compensation.

“Not every claim has to result in a lawsuit. Frequently, we try to avoid litigation through some form of pre-lawsuit negotiation. For example, I might write a claim letter setting out the major elements of the client’s claim—the facts, some law, and then we negotiate a settlement. At that point, you don’t have all those litigation expenses.”

In fact, “it’s very common for a settlement to happen outside of a lawsuit—not only before going to trial but before filing a lawsuit at all. After all, many employers don’t want litigation. It’s not good for business or morale, and it might be cheaper for them to sit down and negotiate a settlement at the end of the day. Everyone goes away, maybe not totally happy, but it’s resolved.”

For issues that don’t resolve before a lawsuit, “they often settle during the course of litigation without going to trial.”

Questions for an Employment Litigation Attorney

To defend your legal rights as an employee, speak with an experienced attorney. Contact an attorney as soon as possible after termination, demotion, or other adverse employment action.

To get the most out of a consultation, ask informed questions such as:

• What are your attorney’s fees and billing options?
• What are the legal fees involved in an employment lawsuit?
• How long does a lawsuit typically take?
• How likely is a settlement before filing a lawsuit or going to trial?
• Should we file in state or federal court?
• Have I met the deadline for bringing a claim?

Once you have met with a lawyer and gotten your questions answered, you can begin an attorney-client relationship. Find a local employment litigation attorney in the Super Lawyers directory.