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Do I Have a Case Against My Employer?

Hi, my name is Atty. Robert Vaksman, and today I’m going to help you think about whether or not you have a claim or a case against your employer.

At our firm, we handle a lot of employment claims. We get a lot of phone calls. We have to go through a lot of phone calls to actually find some good claims that we can help folks with when it comes to claims against their employer. Some of these could be regarding overtime wages. It could be wage claims, so whether it’s for overtime or final pay or meal breaks, those are considered wage claims.

Then there’s also discrimination claims. Those could be sexual discrimination, gender discrimination, racial discrimination. Those could be classified as discrimination claims. Then there could be retaliatory claims. There’s all sorts of different things that we look at when it comes to a case. Sometimes it could be based on, for example, wage claims could be that your employer classified you as a contractor when in fact you should have been classified as an employee. These are all things that we would consider.

One thing that I want that we always try to have our clients and prospective clients understand is how we start to actually analyze these cases when we first hear about them during an intake call. We’re very honest in that our first look at these facts and at these cases is through the lens of damages. What do I mean by that? Well, when you have any kind of a case that we’re trying to prove up, we are looking at a lot of different things. We’re looking at, well, did that wage issue actually happen? Was the employer actually wrong? That’s one thing to certainly look at.

What we’re usually going to do at the top of a case, at the very beginning during the intake phase so we’re going to take your word for it. We’re going to take your word that you were underpaid, that you weren’t paid enough overtime, that you weren’t paid your final wages, that you were an employee and not a contractor, that you were discriminated against, that you were wrongfully terminated. We’re going to take your word for it.

The second thing that we’re going to do is we’re going to say, “Even if you’re right, what are your damages?” because it’s not going to be worth it for us or for the client to pursue a claim if there are no damages. That’s a really important thing to understand is to look at the damages. Let’s take a wrongful termination claim.

During the downturn in 2008, our firm got flooded with phone calls and knocks on the door about wrongful terminations and folks saying, “I was wrongfully terminated because of gender, because of race, because of whatever the case was, because my employer didn’t like me. Whatever it was, the prospective client was claiming wrongful termination.

In every single one of those phone calls, we said, “Sure, you were wrongfully terminated but what are your damages?”

In a lot of those cases, in a lot of those phone calls, if they’re calling as the day after they were supposedly wrongfully terminated, there really may not be a lot in terms of damages because at that point, on day two, they still haven’t gone to look for another job or maybe they did and they got another job. If they got another job on day two, their potential damages might only be that one day of back pay or front pay or however we’re going to assess damages.

Now, again, please don’t interpret this to mean that there are no other type of damages that might be involved. There might be statutory damages, and what that means is damages that just for doing this specific thing, the employer is at fault and owes a specific sum just for doing it, as opposed to there needing to be some lapse of time or something else that that occurs in order to get to that.

My point is that we look at it through the lens of damages. Why? Because and the other reason is a lot of these employment claims, most employment claims, we actually take on and work on a contingency basis. What that means, and by the way, most firms that handle employment cases are going to do the same thing, we don’t get paid unless the client gets paid.

I’m also specifically talking about plaintiff side cases. We do assist companies as well when the company is potentially in a defensive posture and they’ve been sued by an employee. In those cases, we’re handling those generally on an hourly basis.

This analysis is helpful both for the employer and the employee or the staff person to understand that plaintiff’s attorneys are going to generally take cases on a contingency basis, which means that they are going to be very careful about choosing cases. They’re not going to take a case unless they’re pretty certain that there’s going to be a positive outcome. It’s not a guaranteed outcome. We can never guarantee results to clients.

However, if we’re taking a case, that means we’ve given it a lot of thought. We’ve really analyzed the facts as much as possible to that point, not thoroughly because that’s something we’ll do as we get into the case but we’ve looked at it, thought about it and we think that there’s a pretty good chance that our clients would prevail here in which case, we can get paid and the clients can get paid.

Looking at damages is a very important aspect here when thinking about, “Do I have a claim against my employer?” In general, other things to think about is were you underpaid? Should you have gotten overtime? Well, when you look at these questions, they’re state-specific. California may have a specific set of rules, Nevada may have a different set of rules with regard to overtime laws.

In other words, California has an 8 and 40 rule which is you need to be– The employer needs to pay overtime to a wage employee unless they’re exempt, which is a whole different video on exempt status, but if you, as an employee, work over 8 hours a day or 40 hours a week, you need to be paid at time and a half. If that didn’t happen, you have a wage claim.

Interestingly, in these wage claim situations, a lot of times, not always– again, when I’m speaking in these videos, you need to understand that you still should call an attorney and talk to an attorney about your specific situation because it might be different based on state laws. It might be different just in your specific situation. The point that I want to address here is that even if there’s one hour of a wage claim that you have, the plaintiff’s attorney still might be interested in your case even if the “damages” are not that large because attorney fees may be implicated.

What that means is that in these wage claim situations, even if you’re technically the employees only owed maybe an additional $100, well, the attorney knows that they can actually go and get attorney fees attached to that $100. Every hour of time that they have on this case even if it’s a contingency case, they don’t get paid until the client gets paid. They’re actually counting their time, counting their hours and then they’re going to add it to the wage claim. They’re going to add it to the actual damages that their client sustained so you need to be really careful.

If you’re an employer, you need to be very careful about making sure who’s an employee, who’s a contractor, not misclassifying anyone, making sure that you’re keeping good records of time. If you’re an employee, same thing. Make sure that you’re getting your overtime when you need to be, that you’re taking meal breaks and that you’re given meal breaks as needed.

My real recommendation when thinking about, “Do I have a claim against my employers,” call an attorney. A lot of times, the attorney is not going to charge you to have an intake, to have a consult, to see if you have a claim so that’s really what you should do. A lot of times people think that they don’t have a claim when in fact they do. Consult an attorney, talk to them.

If you’re an employer and you’ve been hit with some kind of a claim, take it seriously because if it’s through the state and there is a wage claim made through the state, they can just deduct money from you potentially. They have some very strict and harsh ways, draconian ways really of extracting funds from the employer and potentially causing all kinds of turmoil in your business. Be very careful as an employer and be very aware as an employee.

As always, if you have any questions, please feel free to give us a call.

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"You will not be disappointed" John M.R. - Harrison, NY
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