Employment Litigation: Finding the Right Claim

In employment cases, on the plaintiff side, at least half the battle is identifying the right claim. I’m just going to jump right in.

The Limits of the Cookie-Cutter Approach. I know countless lawyers who take a cookie-cutter approach to everything. It doesn’t matter what area of law they practice or what side they are on. Their approach is basically a template. A checklist. Paint-by-numbers. There are several problems with that approach. I won’t address all of those problems in this article. But in the employment law context, here’s the big problem as pertains to case selection / evaluation: If a plaintiff-side employment lawyer is focused on Title VII claims (typical employment discrimination claims), then they are only looking for claims that fit that model. They are only looking for Title VII claims. They are ignoring facts, leverage, and other claims that fall outside of that model. It’s perfectly fine for lawyers to specialize or focus on one area of law or one type of claim. Especially in a field like plaintiff-side employment law, where there are no billable hours and you don’t survive unless you can get money for your clients. Given those business realities, carving out a niche makes a lot of sense. For instance, I wouldn’t touch a workers’ compensation case. That’s not my wheelhouse. But that’s not what we’re talking about. That is a conscious choice to focus on X types of cases and reject Y types of cases. Instead, what happens with the cookie cutter approach is that you are only looking for, e.g., the Title VII claim. You are not looking for, e.g., the assault claim, the negligent retention claim, the defamation per se claim, etc.

And that makes sense. Because most traditional plaintiff-side employment lawyers have spent most or all of their careers in typical employment law (whether on plaintiff-side or management-side). They are familiar with things like Title VII, FMLA, ADEA, FLSA, etc. Typical, core employment claims. Their worldview is limited to the confines of employment law. When it comes to substantive law outside of traditional employment law? Or fashioning novel claims / case theories outside of traditional employment law? Most employment lawyers on either side are completely lost.

A lengthy aside: I first started seeing this years ago when I was defending employees in non-compete cases. Prior to starting my own law firm over a decade ago, I began my career as an associate at a large law firm called Boies, Schiller & Flexner. That was back in BSF’s prime. At the time, BSF did lots of antitrust litigation. So, I had the opportunity to work on several significant antitrust matters. When I left BSF, I had a pretty solid grasp of antitrust law. Fast forward a few years, and I would be defending employees and sometimes the new company in non-compete cases. And, inevitably, the corporate plaintiff would make a settlement demand that included the two companies (old company and new company) agreeing not to compete (whether for certain clients or in certain territories). Given my background in antitrust law, I would always nix that idea right from the jump. I would say, “No way. That’s an antitrust violation.” I cannot count the number of times that some 60 or 70 year old employment lawyer told me, “Well we do that all the time. So I don’t see any problem with it.” Go talk to the DOJ. Settlement agreements among competitors are not magically immune from antitrust liability.

But I digress. The point: I haven’t just existed in the realm of traditional employment law. Instead, when I was defending employees in non-compete cases, I was always looking for whatever leverage I could get (i.e. counterclaims). Here I was. A relatively youngish lawyer, defending employees in non-compete cases in a generally pro-non-compete state that had 20+ years of terrible and completely backwards case law on the books. It was an uphill battle. Part of the success that my colleagues and I had in that line of work was being able to identify and leverage various counterclaims. Company X sued our client Joe for violating a non-compete agreement. We would basically say, “Ok. What legitimate claims does Joe have against Company X?”. Coming from that background gives me a much different perspective than the typical employment lawyer perspective. I see that play out nearly every day. These days, we have moved away from defending non-compete and trade secret cases. We still take those cases here and there. But gone are the days when we would have 30+ non-compete and trade secret cases at any given time, some of those cases with $10+ million at issue. Instead, these days, we are mostly focused on plaintiff-side employment cases. And we bring the same approach to these cases. We are not asking, “Does this PC have a Title VII claim?”. Instead, we are asking, “What claims does this PC have? What claims exist here? What is viable? What is the most valuable? What has the highest odds of success? What has the most direct route to a jury trial?”

Get All of the Relevant Facts. The typical plaintiff-side employment lawyer only wants the facts that go to a Title VII claim. They adopt the cookie-cutter approach. Their paralegal or legal assistant is just operating based on a checklist. On the flip side, the typical plaintiff in an employment case wants to write a novel or tell their entire life story. They want to explain every single perceived slight that they have endured at work over the past, e.g., 3 years. I’m just calling real shots and don’t care who gets offended by this. These two approaches (checklist vs. whole life story) often don’t mix well. The key here on the lawyer side is to train your staff to reject the vast majority of employment cases. Objectively, most complaints about, e.g., employment discrimination, wrongful termination, etc. are either (a) totally baseless or (b) maybe plausible but ultimately losers from a legal perspective. This is because modern, Western society has convinced everyone that feelings are the same things as rights. That, of course, is nonsense. So, as a lawyer, your staff should reject the vast majority of these cases/inquires during the initial screening. Cases/inquires that pass the initial screening should then go to a senior litigation attorney who actually works the cases. Why? Because nobody in the firm is better suited to quickly gather the relevant facts and make a preliminary assessment of whether or not to investigate / pursue the claim further. On the client side, you can help yourself by understanding that a lawyer who has had lots of success representing plaintiffs in employment cases probably won’t be willing to listen to your entire life story and double as a psychologist. Likewise, good lawyers cringe when employment clients throw around legal claims and terminology. About 16 million people every year think they have a “hostile work environment” claim and maybe 1% of those people actually do. You take my point.

The Universe of Potential Claims Goes Beyond Typical Employment Claims. I have seen countless employment cases that were initially framed as discrimination or sexual harassment, but where the real claim (i.e. the most valuable claim) was something else. I see this all the time in sexual harassment cases. The perpetrator actually touches / assaults the plaintiff. And so many lawyers don’t understand how that fact potentially transforms the case from a Title VII sexual harassment case to a tort case (e.g. negligent hiring, negligent retention, negligent supervision) depending on other key facts. Sometimes the real claim is a defamation per se claim. I’ve seen cases go from an insurance adjuster valuing them at $50,000 (basically nuisance value) to 6 and even 7 figures. Not because the underlying facts changed. But because the claim changed.

Pigs Get Fat, Hogs Get Slaughtered. If you haven’t ever heard this maxim, then you certainly didn’t grow up in small town Pennsylvania and you probably didn’t grow up in small town anywhere, in a small business family, working class, etc. This is one of the oldest, most widely applicable maxims to abide. Basically: There’s nothing wrong with getting paid. But don’t get greedy. Don’t ever get greedy. And that is sound guidance for both lawyers and clients alike. Any plaintiff-side lawyer who has been around for a bit and survived implicitly understands this. When you don’t get paid hourly and you have to get money (i.e. win cases) to make money, you have a different understanding and appreciation of these concepts. So any good plaintiff-side lawyer gets it. As for the client side: One of the quickest ways to get rejected by a good lawyer who could help you is by having huge dollar signs in your eyes. Are some employment cases objectively worth millions of dollars? Yes. But only some. Only a few, relatively speaking. The cases in this arena that are objectively worth 7-figures tend to be egregious sexual assault cases (and therefore tort cases), not purely Title VII / discrimination cases. When it comes to straight up Title VII / Equal Pay Act / discrimination cases? A very small percentage are objectively worth north of $1 million. The only way you can ever get beyond $1 million in damages (before attorneys’ fees) is if the underlying salary / compensation is very high. Because there are damages caps on non-economic / punitive damages in this wheelhouse.

Jonathan Pollard is a lawyer and the founder of Pollard PLLC. Over the past decade, Pollard and his colleagues have represented hundreds of employees in litigation. Pollard has appeared in or on The New York Times, The Wall Street Journal, PBS News Hour, The Guardian, Bloomberg, NPR, and more. He has 75,000+ followers on LinkedIn where he frequently posts on law, business, and life. Pollard PLLC can be reached at 954-332-2380.