According to the article:

• The median award for all types of employment claims rose a whopping 60% in the past year, from $204,000 to $326,640.
• Employers won only 39% of discrimination lawsuits in the past year, tied for the worst win rate in the past decade.  The lowest win rate (33%) was in age discrimination cases and the highest (52%) was in disability discrimination cases.
• Age discrimination cases had the largest verdicts, followed by disability, sex and race.
• Manufacturing/industrial had the biggest verdicts, followed by government, service/retail and then transportation.
• Employers are better off in federal court, where they won 43% of the cases, versus only 37% in state court.  In addition, the median federal award was 39% lower than the median state award ($164,925 versus $270,000).
• The median settlement amount was the highest in the past decade at $90,000 — a 20% jump over the previous year.

As with any data set, I am always curious to review the details.  I plan on getting a copy of the study and will share whatever summaries and insight I can.  These numbers seem to rebut some rumors I have been hearing about employment law cases losing value in a down economy.

Another interesting observation is that the summary of this data fails to mention retaliation, whistleblowing, and sexual harassment cases.

Of respondents who experienced a serious injury on the job, only 8 percent filed a workers’ compensation claim. When workers did tell their employer about the injury, 50 percent experienced an illegal employer reaction—including firing the worker, calling immigration authorities, or instructing the worker not to file for workers’ compensation.

There are a couple interesting things to note.  My first observation: this study suggests an answer to a common question  – “how could an employer be stupid enough to retaliate against me for filing a workers’ comp claim?”  If retaliation for filing a workers’ compensation claim (actual or perceived) can prevent 96 percent of serious injury comp claims, then instilling fear in injured workers may well enhance an employer’s bottom line.  That’s a scary thought.

My second observation:  vigorous enforcement of workers’ compensation retaliation claims among low-wage earners is VERY important.  I don’t have any data to back up my hypothesis, but I’d be willing to bet that serious work-related injuries are most common among low-wage earners (manual labor, repetitive work, factories, farms, etc.).  If 96% of injured workers are not filing claims, then the workers’ compensation system is broken.

Finally, I have some questions about this study.  I would love to know more about method and details of this study.  I would enjoy seeing how the respondents were selected and how the survey questions were drafted.  Like any report of survey results, I would encourage readers to think critically about what these numbers really mean.

My office routinely reviews EEOC and BOLI files.  In most cases, I suggest having an attorney review the status of an administrative investigation before any findings are issued.  There are some cases where it is advantageous to close the administrative investigation before the agency has a chance to finalize its findings.  This is a rather complex analysis and is something that needs to be considered on a case-by-case basis.

Contrary to the wisdom of the bumper sticker, it is not enough these days to simply ‘QUESTION AUTHORITY.’  You gotta speak with it too.

A friend shared this video with me last night and I wanted to pass it along.  There are many great nuggets of wisdom in this brief performance.  While the presentation is not directly related to employment or employment law, I think there are a number of applicable points – especially for younger employees and younger attorneys.

Let me guess:

I’m sure you’ve come across some good employment law information in your cyber-travels.  But, I imagine you are no closer to knowing the actual value of your employment law case.  There are so many media reports of seven and even eight-figure employment law verdicts.  But, you understand that those cases are the outliers that do not represent what your case might be worth.  So you’ve continued looking for the real useful information.  You’ve probably run into some great articles out there (like this one) that warn you of the consequences of being unreasonable in employment law cases.  You want to be rational and reasonable.  But, you are still in the dark about the value of your case.  This article is for you.  The text below may not be what you want to hear, but you should read it all the same.  I think I might be able to save you a headache or two.

I don’t typically give out advice on my blog.  Today I will unashamedly break that rule.  If you are trying to Google the settlement value of an employment case,  I advise you to call an employment lawyer immediately! It doesn’t need to be me — I’m not trying to sell you anything.  Just contact a good employment attorney.  If you already have an employment attorney, I advise you to call him or her right now. I am giving you this advice to save you from yourself.  If you don’t at least call a lawyer, you are hurting yourself and other employees who are dealing with similar problems.  You are giving corporations and insurance companies exactly what they want.

Allow me put this in perspective.  Let’s pretend that a magical “Employment Case Settlement Value Calculator” existed somewhere on the web.  It’s exactly what you were hoping to find!  To use this calculator, you would type in a bunch of data (salary, type of case, etc.).  Then, using that data, the calculator would compare your case to thousands of others and pop out a reasonable settlement value.  It goes without saying that you would immediately plug in your information and press the submit button.  I’d do the same thing.  Next, let’s pretend the calculator tells you your case is worth $98,153.23.  Then what?  Ah yes, you would open up MS Word and draft a letter. “Dear Employer, You owe me $98,153.23. Respectfully, John Doe.”  Each night thereafter, as you drifted to sleep, you would think of how you would spend the settlement check.  You’d receive the check in the mail the next week and live out your dreams.  Exactly what you wanted, right?  Wrong.

My example is admittedly facetious, but it illustrates a few important lessons.  First, employment case value presupposes two things: (1) you can “win” your case; and (2) someone is willing to pay reasonable value without contest.  In reality, even if you have a strong basis for a lawsuit, unless you seek assistance from a professional, neither of the above-listed conditions are likely to occur.  The fact that you do not have counsel will drive down settlement value and you most likely get nowhere.  Likewise, the chances of you doing something wrong and messing up your case are very high, simply because you are inexperienced and ill-equipped to handle the intricacies of an employment case.

Second, being able to “calculate” employment case value assumes that complete and accurate information is available.  Not surprisingly, comprehensive information does not exist. The facts in one case are very rarely identical to those in another case.  People, situations, and ability to prove a case vary widely.  Cases often settle with confidentiality clauses.  Even when non-confidential settlements are recorded somewhere, it is always in a very sporadic manner.  In fact, there is no central identifiable place where courts and lawyers “report” verdicts and settlements.  This restricts access to data associated with case value.  Some cases are dismissed.  Some are never filed.  Sometimes employees are reinstated into their jobs, which might reduce an otherwise high verdict or settlement.  Case values change depending on geographic location.  Some plaintiffs are more likable than others. There are an almost infinite number of factors that contribute to verdict and settlement amounts in employment law cases.  I cannot even scratch the surface.  Even if you think you’ve found a verdict or settlement on Google that is similar to your case, chances are it is not.  Your case, if you even have one, could be worth substantially more or less.

Finally and perhaps most importantly, if employment case value were ascertainable via Google search, that would undermine the very system that gives value to your case in the first place.  The reason the courts work so well is because they operate on a case-by-case basis.  12 of your peers sit down, consider the evidence in your case and apply the law.  The court recognizes you as an individual.  The reason defendants settle cases is because they acknowledge the costs and risks associated with trying a case to a jury.  If settlements were reduced to mere calculations, large companies and insurance companies would run the show and you would never get the justice you deserve. Neither with anyone else – you’d all be slaves to the calculator.  And that calculator would eventually fall under control of the corporations and insurance companies.  So, when you get frustrated by the uncertainty involved with the law, try to remember that uncertainty can benefit you when it comes to settlement.

Wrapping things up, if you are questioning the value of a potential employment law case, the bottom line is that you need competent counsel.  And I mean “counsel” as the term is used in “counseling.”  You need someone who can spend time with you to get to understand the facts, get to the bottom of things, prepare your case properly and assert your legal rights vigorously.  If you do not do things correctly from the beginning, I can confidently say that the settlement value of your Oregon employment law case is zero or close to it.

In the lawsuit I mentioned above, which was filed against a Kansas-based staffing agency called Spencer Reed Group, a 55-year-old Caucasian female employee was subjected to differential treatment by her younger male African American supervisor.  The employee submitted a complaint and was fired one day later.

There is not enough information to remark on the strength of the employee’s actual discrimination claims.  However, it appears that retaliation is a real problem for the employer in this case.  Even if the employee cannot prove she was subject to discrimination, there is no getting around the fact that the employer fired the employee within 24 hours of receiving a complaint.  The timing of the discharge is very problematic and is likely to overshadow whatever legitimate, non-discriminatory ground for termination the employer will allege.

This case is also a great example of why the new Oregon whistleblowing law is so important.  H.B. 3162, which was signed by the governor on June 24, 2009, prohibits retaliation against employees for good faith reports of information an employees believes to be evidence of unlawful activity.  (Read bill here).  The law applies to actions filed on or after January 1, 2010, which means that retaliatory conduct occurring any time after January 1, 2009 could theoretically be subject to this new law.   Retaliation has been prohibited in various forms under the Oregon common-law for some time.  See e.g., Galenbeck v. Newman & Newman, Inc., 2004 US Dist LEXIS 9249 at **21-25 (D. Or. May 14, 2004); McGanty v. Staudenraus, 321 Or. 532 (1995); Goodlette v. LTM, Inc., 128 Or. App. 62,65 (1994).  However, the new law will alleviate the need for employees to navigate the nuances of a wrongful discharge claim.

On August 7, 2009, the EEOC sued Decker Transport for pregnancy discrimination.  According to the complaint (download here), Decker discriminated against a 30-year-old Detroit woman based on her sex and pregnancy.  After she informed her employer of her pregnancy after a trip to a hospital emer­gency room the employer.  The company allegedly put her on temporary leave and told her not to return to work until after she “got rid of the problem.” When the female worker refused, the company terminated her employment.  (See EEOC press release here).  I will be keeping up with this case and hopefully posting updates here when they are available.

The EEOC also announced on August 14, 2009 that it has reached a resolution of a Texas pregnancy discrimination lawsuit.  (See press release here) Austin-based Time Insurance Agency (TIA) refused to hire a pregnant female applicant for an administrative assistant position because she was pregnant.  Apparently this woman was selected for an interview and then invited back for a follow-up meeting with a manager of “the department where she would be working.”  At this follow-up meeting, the woman disclosed that she was pregnant.  The company thanked her for being honest and immediately rejected her for hire.  The case settled for $30,000.00 plus a two-year consent decree, which requires the company to institute a new policy and undergo EEO training.

There are many approaches on what it means to be a trial lawyer and how one becomes a trial lawyer.  I could go on and on, but I really think the best summary written on the topic comes from John Day, a Tennessee trial lawyer.  Here is a link to Day’s articles. I’ve condensed his articles to a list below.  I smile when I read this.

• Knows the substantive  law applicable to the cases and evaluates, accepts, settles and tries.
• Has a solid knowledge of the laws of civil procedure
• Has a solid knowledge of the law of evidence
• Takes time to think
• Maintains a reasonable caseload
• Does NOT cheat
• Learns the facts
• Understands the importance of depositions
• Has the ability to pull the trigger
• Is willing to be one’s self
• Is able to organize
• Has the courage to tell the client the truth
• Has an ability and willingness to undertake (and share with the client) a cost-benefit analyis throughout the litigation.
• Has a passion for the work
• Has a healthy respect for the judicial system
• Has an understanding of the human condition and what it takes to motivate jurors to action
• Has an appreciation for the discretion vested in the trial judge
• Is willing and able to delegate
• Has luck
• Knowledge that you are only as good as your next verdict

This list is a gem and I sincerely hope that all of the employees out there looking for a lawyer show up with this list at their initial consultation asking whether their potential lawyer possesses these traits.

Laws do not exist in a vacuum.  Anybody can go look up a statute or research precedent.  Laws are useless without facts.  If I tell you that Oregon law requires employers to provide a 10-minute rest break for every four hours worked, I am telling you what a particular law requires.  That statement of the law is pretty useless on its own.  Now, what if I tell you that Susie works for ABC Corp. every day from 8 a.m. until 5 p.m. and ABC Corp. refuses to let Susie take a 10-minute break until 2 p.m. each day?  Now the law is useful because we know ABC Corp. is violating it (even though Susie won’t be able to personally sue ABC Corp. in Oregon at the time this post was drafted – read here). “The law” is far more than just rules, regulations and theories.  In the end, it is about being able to prove facts and being able to present those facts to a judge or jury in a manner that invokes or avoids application of certain rules, regulations and legal theories. The law is an interactive process, not a mandate.

How does this relate to investigation?  In law, facts are things that can be established by the required burden using admissible evidence.  It’s one thing to say “ABC refuses to let Susie take a 10-minute break until 2 p.m. each day.”  It’s something completely different to be able to prove that.  In most of the Oregon employment law cases I handle, the employee needs to prove that something is more likely than not using evidence.  If Susie takes the stand and says, “I have not had a single rest break in the last 3 months of work at ABC Corp.” and ABC Corp. has 2 employees who each say that Susie took her 10-minute breaks each day during the same period, Susie runs a serious risk of losing her case.  That’s why investigation is so important.  If Susie had investigated and found: (1) a written ABC Corp. policy prohibiting rest breaks in effect during her employment; (2) video surveillance footage showing Susie working without breaks; (3) handwritten notes and email messages from her supervisor reprimanding her for taking rest breaks before 2 p.m.; and (4) testimony from 4 co-workers supporting her claim, then things would look better for Susie.

Regardless of which lawyer or law firm you choose to represent you, be sure that you are confident in your attorney’s ability to investigate the evidence and put that evidence to work for you. 

There is no doubt that surviving cancer is a difficult and life changing experience.  Employment issues are one of many hurdles a person faces when dealing with a serious illness.  As a lawyer, I see these issues unfold first hand. I can say with certainty that many employers who face employment lawsuits related to cancer survivors could have been prevented with better communication and collaborative efforts.

What employment-related legal protections are there for people who are diagnosed with cancer, undergoing cancer treatment, or living after cancer treatment?  The protections vary, but as a general point, employers should not and in most cases cannot treat you differently because of cancer.  The bulk of protections come in the form of medical leave laws (Oregon Family Leave Act and the Family Medical Leave Act) and disability laws.  There are also various insurance and benefits-related laws that may impact your situation.

For example, just last week, the EEOC announced a $125,000.00 settlement reached for a woman fired after she attempted to return following medical leave for breast cancer.  (Read press release here)

Because employment circumstances and medical conditions vary drastically on a case-by-case basis, it is almost always important that you contact an experienced employment attorney to discuss how to minimize the impact your illness has on your work situation.  When parties work together to address  illness and its effects at work, many issues can be resolved and lawsuits can be avoided.