April 30, 2014, California Employee Lawyer, Karl Gerber, was interviewed in his Sherman Oaks office about common questions employees might have when they are considering suing their employer.
Interviewer, Alonso Rodriguez: Offices of Karl, Attorney Karl Gerber here in Sherman Oaks. And I would like to ask Karl Gerber what are some common questions suing their employer?
Employment Attorney, Karl Gerber: Sure, what are you thinking of?
GERBER: I don’t think that an employee who is considering suing for wrongful termination would get a good reference regardless of whether they actually brought the case for wrongful termination. If an employee was fired from their job in a circumstance that they are contesting, sounds like the employer doesn’t have great things to say about the employee. They’re going to raise performance questions; they’re going to raise perhaps even ethics questions about the employee, and so, going into that kind of a representation, I would expect the employer is planning on getting -- or giving -- a bad reference to the employee. And they’re not going to get a good reference if they don’t sue when the employer’s mad at them and fired them for cause and doesn’t want to pay unemployment to them.
GERBER: Yes, I have. Are you talking about cases where we are only suing for a bad reference or we’re already suing the employer for something like wrongful termination or sexual harassment and they’re getting a bad reference?
GERBER: Alright. First off, when there are lawsuits for employment torts. When I use the word “tort,” I refer to sexual harassment, wrongful termination, any situation where the employee lost their job, oftentimes, there are issues of a bad reference. I tried a case a couple of years ago and we were able to talk to the jury at the end of the trial we won, and the defendant didn’t understand why the jury gave the employee five years of lost wages and how that could be. And the jury told the employer, “Well, we assume you must be giving her a bad reference, and that’s why it took her so long to find a job. So the fact that an employer is giving bad references can lead to more damages in the employment case, in terms of cases I have taken when there’s simply a bad reference and I’m not representing the employee in a termination, I would say in those cases we must be very selective about it(?) There must be some written evidence of a bad reference. I remember a case years ago in the Bay Area, the San Francisco Bay Area, where we actually got in writing from some subsequent employers that they were saying absolutely untrue things about the employee and it was sent maliciously, but unless it can be verified that there is indeed a false reference being given -- and not just a bad reference, which is opinion -- it would be very difficult to get into a case like that.
GERBER: Well, I think the employee needs to think about what may happen in their case. For instance, is this a case that they can win? Are they owed a lot of money? Is this something that interrupted their entire career? And they need to make these decisions and consultations with an experienced employment lawyer who’s actually done a lot of these cases and can advise them whether the case is going to be winnable and whether it’s going to be something they could actually get serious money on. If the employee worked there for a couple days and it just didn’t work out, that’s not something they should be suing for, but if it’s a career that was ruined and they end up finding a replacement job that pays a lot less, they may have damages into the future, that’s something we need to think about. If it’s a very serious sexual harassment situation where the employee has a lot of mental distress because of it that is not going to go away soon, perhaps they should even be going to therapy over it, they need to very seriously consider just not suing on a case like that because they think it’s too much trouble or it gets too embarrassing to get into when a) they may have a strong case, and b) there may be financial recovery to handle that(?)
GERBER: If the employee goes with my law firm, we only take these cases on a contingency and that means we only get paid when and if we win. We also advance all of the costs for the case, things like filing fees, depositions, things like that, but if this is discrimination case or a harassment case, or a case about the medical leave act, there are many different cases now in which the employer by law has to pay the employee’s attorney fees if there’s an actual win in binding arbitration or trial, and if that happens and we’re awarded attorney fees, we’re not going to be collecting on a contingency and charging a percent like most of my clients, unless for some reason, or getting a very small amount of attorney fees because most of the cases, is not about say a labor code violation for overtime which by the way all those wage and hour things make them pay attorney fees. If that’s the case, then we would go with what we’re awarded, but like I said, if we have a verdict where they’re owed obtain(?) $12,000, let’s say, of overtime, and they win on another theory that doesn’t allow for attorney fees, the judge gives a very small amount of money attorney fees, a situation like that, we would take a percent on the other part of the case, let’s say, invasion of privacy, or something like that.
The other thing that employees need to understand about attorney fees in employment cases is a lot of times you have a case where the employee does not have huge damages. There may be sexual harassment in which the employee is harassed but maybe their emotional distress is only worth $30,000. If they win that case at trial or binding arbitration, then the employer has to pay attorney fees. If I’m representing the employee, I make a motion for attorney fees, it could be hundreds of thousands of dollars in attorney time. Now, employers think about that when there’s going to be a settlement. They think about that when I’m representing the employee because I have a track record of judges awarding me $475 an hour for my time because I’ve done a lot of employment cases, 20 years of them, I’ve won them, I’ve done appeals, and I know my stuff, so those employers are represented by lawyers that I’ve probably had cases with, and they know that if this case that is worth $30,000 in sexual harassment damage to the employee is won, they know that yes, the employee may get $30,000, but yes, I may make a motion for $300,000 in attorney fees, and that gets factored into the settlement, and guess what, the settlement is not $30,000, it’s $70,000 or $100,000 or $150,000, so there are a lot of ways those attorney fees get paid on these cases, and it’s something you need to talk to lawyers about.
GERBER: Yes, they can sue if they are still employed. I have represented many women who are still employed by the company we are suing. I am more likely to recommend that if it is a large company with hundreds if not thousands or tens of thousands of employees where the risk of retaliation is less. I also would be able to recommend that if I don’t feel that the sexually harassed the client is at risk of physical danger or mental distress by continuing to work for the company where they were harassed.
GERBER: I think the issue central to most people who are suing for sexual harassment is, is it going to be ok? If I go to the workplace, and I’m suing them for sexual harassment, and, again, I think that depends on the size of the company, whether the harasser really has been removed from their work environment? Is the harasser in the same building still? Are they likely to run into them? If they work on a different shift, are they likely to see them during shift overlap? Was the harassment of a physical nature versus an obnoxious verbal nature? Was the harasser an immature person who made ridiculous comments of a sexual nature or are they truly a sick individual who was likely to retaliate or do things like that? These are questions that need to be discussed with a lawyer and the client. The client needs to have a comfort level with their attorney to be able to openly discuss these issues, because a decision needs to be made about what’s best for the employee’s mental health if they’re going to be working in an environment where they were sexually harassed, and there are times, and I’ve been involved in many of them, where the employee has to quit because they were sexually harassed, and it’s not appropriate for them to return to the place of employment. A therapist, a mental health professional, a psychologist, a psychiatrist may recommend that. I had a case right now where the therapist said the employee will never return to that place of employment as long as the harasser was there, and that becomes something that you really do need a labor lawyer working on your behalf.
GERBER: Thank you for your questions.
Karl Gerber has represented more than 1,500 different employees in employment disputes in binding arbitration and court since 1993. He is licensed in four states and maintains multiple offices in California, and Boston, Massachusetts.