Silver Spring MD Wrongful Termination Law Blog

Clients are always interested in the value of their case. Why are some cases worth more than others? How do I as a client maximize my recovery at trial or mediation? There are a number of critical points you can do as a client to have the greatest opportunity to maximize your recover in an employment case.

First, you should be aware of all damages that you may be entitled to upon a successful verdict for a wrongful termination case. The major categories are: a) back pay; b) compensatory damages for pain and suffering; and c) punitive damages. Understanding the legal elements to each of these categories can go along way in obtaining a large verdict or settlement.

Back Pay

The basic structure for back pay works as follows. The wrongfully terminated employee is entitled to back pay from his termination date until he or she obtains a job that had the same pay and pay structure as the company from which that employee was wrongfully terminated. For example, let's say that an employee earning $50,000.00 a year was wrongfully terminated on January 1, 2006; was totally unemployed for six months, then obtained a job making $25,000.00. That employee would be entitled to back pay of $25,000 for the first six months of unemployment in which there was no income, then another $12,500 for the following six months of 2006: the difference in what the employee would have been making during that time period less what he or she actually earned. Assuming the employee kept that job, he or she would be entitled to $25,000 a year in back pay until the settlement or trial.

It's important to realize that upon a successful verdict, one of the remedies typically sought is reinstatement into the terminated position. If that remedy is awarded, back pay stops as of the reinstatement date. Many clients are reluctant to return to their former position and it's certainly understandable, given the usual circumstances. As such, the law provides that if circumstances are so adverse for the employee to return to the position, then the court can award, "front pay," meaning it can award the future difference in pay from the terminated position to the position now held by the employee. If that difference in pay is significant enough, it may be well worth it to obtain the services of both a vocational expert and an economist to establish a future sizable front pay claim. However, it is rare that federal courts will allow front pay in lieu of reinstatement.

Don't forget about value of benefits, such as health insurance, retirement plans and the value stock option awards, which many companies offer as employment incentives. That should be included in any back pay analysis.

There are several critical factors which companies are legally entitled to use to offset back pay and clients need to be aware of them. When the company offers unconditional reinstatement as part of a settlement to the claim, back pay stops as of that date.

Also, if the employee engaged in misconduct, for example, he downloaded computer files from the company's server; the defendant can argue that it would have fired the employee for that reason. As such, even if the company became aware of the misconduct following the termination, courts allow the Defendant to use the employee's misconduct as an offset to back pay.

The most common defense to offset back pay is that the terminated employee failed to mitigate his or her damages, by not looking hard enough for a new job. In addition, employees should be careful in passing up new career opportunities even if such opportunities do not have a near identical salary and benefit structure as their prior company.

The best thing clients can do for their cases following a wrongful termination is to create a diary of all attempts made to secure other employment. Be sure the diary includes the name, contact information and dates of contact you made to seek employment at that company. Also, find out everything you can about the companies at which you interview in order to compare salaries and benefits of companies within the same industry. Don't act improperly when leaving a company. Keep in mind of all relevant emails, memos and other documents that your attorney may need in litigating the case, but don't take property to which you're not permitted to have access.

In short, a high back pay award is a result of a client with a high paid position, actively seeking employment and demonstrating to a jury or mediator that the wrongful termination detrimentally affected his or her career. The longer the unemployment or the employment at a lower salary continues, the greater the award.

Compensatory Damages

The second most common category of damages is for pain and suffering, compensatory damages, which are broken down into two categories. First, pecuniary damages involve damages for medical bills to doctors, nurses, psychologists and other health care providers. The costs of prescription medication can be substantial and clients need to keep track of them. Also included in this category are consequential damages such as transportation to the physician and over the counter medication.

Non-pecuniary damages are for pain and suffering for which there is no doctor bill or hard cost to show, caused by the wrongful termination. Physical pain and suffering which can be demonstrated by evidence of physical damages such as unusual weight gain or loss, hives, blood pressure changes and other symptoms of depression and these are the types of injuries that impress jurors and mediators alike. Moreover, jurors need to understand why certain circumstances will render some kind of permanent pain and injury to the client. Perhaps the wrongful termination impacted upon the client's ability to work in a particular field or business permanently.

My best advice for someone who has suffered a wrongful termination is to see his or her family physician. Studies have shown that losing a job can be one of the most stressful situations people go through. It's perfectly natural to have suffered depressive symptoms through the episode and beyond. People who don't get the medical attention and therapy they need, not only don't do their health any favors, but they can detrimentally harm their case as well.

Punitive Damages

Non-governmental entities can be sued for punitive damages, which are damages to punish the employer and to set an example to other employers for wrongfully terminating an employee. People hear about these awards in the news all the time, usually for millions of dollars. What makes the employer's actions subject to a large punitive damage award?

There are several critical factors for this kind of award, which is not usual. The employer has to have acted maliciously. Jurors look for outrageous behavior; reprehensible behavior; and a badly injured Plaintiff. They also look to whether the employer gave untruthful trial testimony. Any evidence presented of actions committed by an employer that would anger a juror would increase the likelihood of a large punitive damage award. Also, many courts will only allow a punitive damage award that in some way relates to the compensatory damages award. For example, if a jury finds $750,000.00 in compensatory damages for a Plaintiff, it is more likely that the Court would uphold a punitive damage award of at least that amount or a small multiple of that award. If the jury awarded $25,000 in compensatory damages, there are few courts in America that would uphold a million dollar punitive damage award in that case.

The Bottom Line

Large trial verdicts and six figure settlements are a product of a showing of strong liability against the employer, coupled with a badly injured Plaintiff, who had a high paying job. The client will have to show that he or she made strong efforts to find another job, couldn't and that the wrongful termination was a major factor in the inability to find a comparable job. In addition, the client needs to demonstrate that he or she treated with a medical provider and that his or her career was on some level, permanently damaged by the wrongful termination. The attorney's job is to gather as much evidence during the litigation that would not only win the case, but would encourage jurors to award a large punitive damage award.

This article is not meant to provide legal advice for any given situation. Readers must retain qualified attorneys to protect their legal rights after carefully reviewing the facts of specific cases.