Author: Daniel A. Lublin
Employers have skeletons in their closets as well
With unemployment rates at a generational high, many employees are asking “how do you win an employment law case?” Here are four tips for the recently departed. If nothing else, following my advice ought to ensure an appropriate severance package, if not more.
Always negotiate. Recently dismissed employees have a tendency to surrender to impulse and sign an inferior severance package only to realize afterwards that more money and protection was available had they just asked. A termination package is a contract, and like any agreement, it is negotiable. In my experience, companies are inclined to negotiate better terms of severance once legal counsel is visible. Leverage is found in the threat of litigation and the associated costs of defending a claim. Therefore, a lawyer’s letter, formulated appropriately, can encourage a better deal. If you have obtained proper advice and your former employer is both knowledgeable and reasonable, there is a stronger chance of resolving your situation at an early stage and with a more favourable outcome.
Strategy: Dismissal cases are not only about money. They are about psychological stability and strategy. Since the preponderance of lawsuits settle well before trial, the key for dismissed employees is to appreciate when they have great facts on their side — and also when they don’t. As the costs associated with litigation act as a deterrent for employees, employers understand that most will accept a reduced settlement at the outset rather than waiting for a trial in order to obtain more. Their early settlement offers often exploit this fear. But if the case is properly advanced, legal costs will follow the result. In other words, assuming you are successful, a majority of your legal costs will be recovered. So, if you have a good case, be prepared to wait; otherwise, you may never collect nearly one hundred cents on your dollar.
Similarly, time is not always of the essence — I’ve seen many recently dismissed employees jump at the first offer of severance they are given simply because they either cannot afford to wait or are afraid they will receive nothing else unless they accept the deal immediately. Timing is rarely the main issue, and generally your right to compensation is not relinquished simply because you have attempted to negotiate better terms.
Select your lawyer wisely. The guidance of experienced counsel is imperative to ensure that your case is properly advanced and persuasively argued, and that critical mistakes are avoided. A lawyer’s Google rankings have nothing do with his or her legal skill. Similarly, there are no rules limiting lawyers without much experience in employment law from professing that they practise it, on their websites and in the media — and they do. Avoid legal practitioners who merely dabble in employment law, since they may not keep abreast of the recent developments — and worse, employers’ counsel often knows who they are.
Understand an employer’s apprehensions. They have skeletons in their closets as well. Former employees in a position to divert important customers to a competitor or disclose information that, while not confidential, may be particularly damning, for example, almost always hold the cards in negotiations.