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TURNING EMPLOYER WRONGS INTO EMPLOYEE RIGHTS

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What amount of money can I request for a wrongful termination or discrimination lawsuit?

Our California employee-clients who contact us for representation in wrongful termination, discrimination, sex harassment or sex discrimination, whistle blower lawsuits often ask “what damages can I win”?  While the amount is based solely on the facts of each case, some categories and guidelines of losses can be reviewed here.

What are my past economic losses? Here, the court can award damages for your loss of wages and fringe benefits from the date of the wrongful termination until the date of judgement. You will also get interest on the past due sum of 7%. This becomes 10% after the judgment is entered, but say you are delayed in collecting due to an appeal by the employer.

What are my future economic losses? Are you working for a lower salary, hourly wage, or not working at all? Is it likely that increases in wages you would have received at your old job will not be offered at your new position?  What fringe benefits will you not be earning in the future that you had in the past? Possibly your new employer does not even offer a valuable benefit that you had in the past, such as a matching 401k, or other pension.

What are my past emotional distress damages? Here, we look to a reasonable amount to compensate you for the emotional distress, grief, worry, depression, anxiety, feelings of hopelessness and worthlessness, embarassment at having to disclose your loss to your loved ones and friends, your fear of financial ruin, possible loss of home, car, affect on your children, etc. With a proper diagnosis by a mental health professional such as a psychiatrist who finds PTSD (post traumatic stress disorder), these damages can and often do far exceed the value of economic losses. Especially so where our employee is so disabled by the trauma that he/she can’t even begin to look for work for weeks or months after the termination or other wrongful act, such as in sex harassment cases. In some cases, even the job search is limited by the trauma of the events we are asking the jury to review. In one recent case, our client simply could not return to a male-dominated workplace, so that limited the job search.

Can I get my attorney fees reimbursed?  Depends on the type of case you are bringing. In most of our cases, which are based on California Government Code discrimination based on age, sex, race, national origin, physical or mental disabilities, the court will order attorney fees in our favor. These fees are calculated by using our normal hourly rate multiplied by a “lodestar” or premium fee to make up for the contingency and high risk nature of our practice. We routinely share these fees with you, the client and are the only known law firm to do so. In other types of cases, attorney fees are not routinely awarded unless a significant public benefit is achieved pursuant to California Code of Civil Procedure Section 1021.5, or fees are allowed under a California Labor Code provision, such as LC 218.5. (As of 1/1/14 this provision will be revised so as to only allow defendants to win attorney fees if they prevail AND the employee has filed a lawsuit in bad faith or frivolously.

Many of the codes under which we sue contain penalty provisions. Routinely, penalties can be awarded for violations of the Labor Code, such as the 30 days’ waiting time penalty. Under this section, employees can get up to 30 days’ normal pay for delays in receiving ALL final wages and vacation time due at time of termination or voluntary resignation. Penalties are also available under the Private Attorney General Act, or PAGA, Labor Code 2699. These are based on the number of pay periods in which earned monies are due and not paid.

How do I win punitive damages? These damages are awarded when a high-ranking corporate employee, such as an officer, director or “managing agent”, engages in really bad acts. These bad acts must be either malice, oppression or fraud and result in the losses upon which the verdict is reached. Courts have gone to great lengths in recent years to limit the amounts of punitive damages to a fair “multiple” of special damages. These limits are generally four to ten times actual losses. Taxation of punitive damages has been an area of contention. Currently, California allows businesses to claim deductions for punitive damages. A bill currently on the assembly floor is designed to eliminate this write off. (AB 458). In the meantime, punitive damages are income to the employee.

Discrimination in California based on age, sex, national origin, physical or mental condition, harassment and or retaliation for whistle blowing often leads to very complex jury instructions in which all possible damages are requested. The art of “how” to ask for damages is as sophisticated and complication as the amount of such damages. In a future blog, we’ll discuss the “how”.