Proving you are right does not put food on the table. For employees who have been wronged by their employer, their supervisors, or co-workers, it may benefit them to speak with employment counsel as to a strategic plan to achieve both their personal short-term and long-term goals. Employment situations, such as in the well-publicized Fred Fuller case, where there is egregious behavior, but no ability to collect damages, may be approached differently than a matter with a solvent employer or one with insurance coverage for the claim. It should also be considered how filing a claim may curtail future employment opportunities for the harmed employee and whether litigation may make the employee’s emotional state worse. On the other hand, putting up with abusive behavior and not pursuing litigation within the limited time periods to make such claims in certain circumstances could substantially harm your financial future.
If an employee believes the employer is illegally discriminating against her, depending on the circumstances, it may be appropriate for the employee to seek out another job first before initiating legal action, if at all. For example, if the employer is passing over female employees for promotions, yet provides those promotion opportunities to males with less qualifications and work ethic, the female employee may at first in frustration consider quitting and suing. However, in talking this through with employment counsel, she may determine that it is in her best interest to temporarily put up with the inequitable behavior of her boss while secretly looking for other job opportunities and be hired by a competitor in that industry or go into a different industry rather than resigning and asserting the employer’s misconduct forced her to resign. If the employee is going to a competitor, she should review with employment counsel any post-employment obligations related to confidentiality, non-solicitation, and non-competition agreements. The benefit of doing that rather than quitting and filing a discrimination claim is that neither the boss nor the boss’ boss will have any input in any type of job reference to provide to a future employer. If the employee is no longer working for the company, a potential new employer would normally want to speak with someone at the employee’s former company. Even if the person they speak with does not disparage the employee, anything less than a glowing recommendation could decrease the chance of the employee getting the new job. However, the potential new employer would clearly understand that if the employee has stated “my employer does not know I’m looking”, it would be inappropriate to seek out a reference from that employer. If the job change can yield a positive career choice, it takes power away from the abusive boss in controlling the employee’s future. A litigation claim, which may be required to first be made with an appropriate government agency, can still be made, but the question is should it be done while still employed, after resigning, or after the employee is in a new job. The personal goals of the employee should not merely be how to enhance the value of a potential litigation claim.
Understandably, sometimes a career move is not appropriate, but those strategic discussions should be made with employment counsel as to what are the achievable alternatives that would best benefit the employee for both her short-term goals of keeping her cash flow consistent and her long-term goals of a career path and long-term financial stability for her and her family. Sometimes a variety of factors should be considered in this strategic planning, including the size of the company, their history in performing proper investigation claims in harassment complaints, and taking remedial measures when appropriate.
Another factor would be whether or not the employer has employment practice liability coverage. A commercial liability insurance policy usually excludes employment practices coverage and therefore there needs to be additional coverage to provide for damages in employment discrimination cases or other wrongful employment practices. For the employer, the benefit of employment practice liability coverage is that it not only provides coverage for damages, but also provides a “duty to defend” which means that the insurance company pays after an agreed-to deductible for the attorney’s fees in defending claims. Therefore even if you are an employer doing all the right things when an employee you fired for poor performance issues make a frivolous claim for discrimination, the employer’s cash flow will not be substantially diminished with defense costs in that the insurance company pays for employment counsel to defend the frivolous actions.
In summary, employees who believe they have been wronged in the workplace should discuss with employment counsel their personal short-term and long-term goals and develop a plan aimed at achieving them.
J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at [email protected].