Many victims of unfair employment actions are devastated by what has occurred, but don't know if they have a claim worth pursuing. Almost all employers now expressly identify the employment relationship as "at will," which is often described to mean that either the employee or the employer can terminate the relationship at any time, for any reason. This is only partially true, as the description of our practice areas on this website demonstrates. We often are asked to respond to the following questions in the case intake process.
If I have a claim, how much is it going to cost to retain a lawyer and how long will this process take?
Suing your current or former employer is a daunting prospect, and you need to be sure that you have the resources, emotionally and financially, to see it through to a just conclusion. This is as important as finding the right lawyer. Fortunately, our office typically offers a number of different types of fee and cost arrangements which are intended to allow prospective clients to retain our services and not have to pay our legal fees until the dispute is resolved, either through settlement or by judgment. The most typical arrangement is a "contingent fee" representation, where you pay nothing for the time invested in your representation. This time is only compensated if your case is either settled favorably or reduced to a judgment. At that point a percentage of the recovery (usually one-third) is devoted to paying legal fees. Even in that circumstance, we can often seek to have the fees paid by the defendant, and any amount awarded may reduce or eliminate your obligation to pay any legal fees out of your recovery. When we offer this kind of representation, it is because we believe your claim is worth the risk of pursuing, because if we recover nothing for you we get paid no fees.
There is typically a nominal non-refundable retainer "fee" in this arrangement, intended to compensate the firm for the time devoted to investigating the matter in order to be sure that our risk assessment going forward allows for a contingent fee prosecution. Costs incurred in this representation are the client's responsibility. Before litigation begins by the filing of a Complaint, these costs are typically very nominal (i.e. less than $250), but they can escalate into thousands of dollars in litigation. We have means of assisting our clients who are in difficult financial straits in meeting this obligation. For instance, we can set up a payment schedule over time for the non-refundable retainer or the cost obligation. We can advance these costs, to be paid out of settlement or judgment, for indigent clients. Our goal is to never let financial constraints deter a prospective client from pursuing a meritorious claim.
It is difficult to project at the outset of representation how the long the process will take before settlement or trial. Our reputation and skill in assessing your case and identifying strong legal claims, and the facts supporting these claims, often results in the company agreeing early in the process to discuss a reasonable settlement. Many times we achieve favorable results within months, or even weeks, of being retained. However, when we commit to a case, we are generally in it for the long haul. Being prepared to litigate a case to its conclusion, and having companies know that is your track record, creates a powerful incentive to discuss settlement early in the process. If these discussions do not occur and we need to litigate, it can typically take 1-3 years from intake through trial, depending on the nature of the case. We can attempt to forecast this for your case once we understand the facts and have identified the legal claims involved.
How much time do I have to bring a lawsuit if I have a claim?
The time you have to initiate a lawsuit depends on the nature of the claim. Discrimination claims brought under the Minnesota Human Rights Act, Minn. Stat. § 363A.01, are subject to a one-year statute of limitations, which means a lawsuit or administrative charge must be commenced within one year from the action you allege to be discriminatory. Similar claims under federal law must be brought within 300 days of the alleged discriminatory action, which include Title VII (prohibiting gender, race, national origin discrimination or retaliation), the Americans with Disabilities Act (prohibiting disability discrimination or retaliation), and the Age Discrimination in Employment Act (prohibiting age discrimination and retaliation).
Many employment-related claims are governed by a two year statute of limitations, including: lost overtime or unpaid wages under the Fair Labor Standards Act (3 years if the violation was "willful"); claims for pension, 401(k), vacation or severance benefits under the Employee Retirement Income Security Act; "common law" employment-related claims such as breach of contract, defamation, promissory estoppel, interference with contract; whistleblower claims under Minn. Stat. §181.932; workers compensation claims, including retaliation claims. Other laws have shorter limitations periods, such as 60 days for whistleblower claims under Sarbanes-Oxley and 180 days for claims such as breach of the duty of fair representation under the National Labor Relations Act.
These are just a few common examples, but they demonstrate that you generally need to act fairly promptly if you want your rights vindicated. Even if, however, the time has appeared to lapse on the initiation of a claim, there may be unique circumstances that could allow a victim to bring what might otherwise be considered a stale claim. For example, the employer may have actively concealed facts which, if known, would have alerted the employee to a legal violation. It is important to consult with an experienced lawyer even if your claim appears to be time-barred.
If my case doesn't involve a failure to hire or termination, but other unfair workplace treatment, is this still something you would pursue?
Illegal workplace conduct is by no means limited to hiring and termination. If you are being harassed in the workplace, you may have remedies under the law. The most common example of this type of claim is sexual harassment, where an individual is subjected to unwanted sexual advances, or to demeaning conduct due to gender, and this can often become so severe that the workplace becomes intolerable and the employee needs to quit to stop the damage and recover emotionally. Larry Schaefer was one of the lead counsel in the first class action case ever certified on a sexual harassment theory, Jenson et al. v. Eveleth Mines, which was the basis for the 2005 movie "North Country," so our depth of experience and results in this area are truly unmatched.
Other actionable conduct can include failure to pay overtime or compensate you for all hours worked, other pay discrimination (such as paying women less than men for the same work), failure to promote, adverse action done in retaliation for engaging in legally protected activity, or failure to properly manage or administer pension, 401(k) or any welfare benefit or severance plan under ERISA (which essentially includes any system or program designed to provide benefits to employees).
Whatever your employment-related issue, you can be confident that we have experience in this area and will be able to identify the potential claim and provide you with prompt, sophisticated legal advice and aggressive advocacy should you choose to retain us.
My employer has offered me a severance package that includes a requirement that I release all legal claims. Is this something I need a lawyer to review?
Absolutely, and you will often be told to do this in writing. A severance package is generally accompanied by a requirement that you release your right to sue the employer for any claim you could assert as result of your employment and termination. In order to be comfortable that you are receiving adequate compensation for this request, you need expert legal advice about what claims you are releasing, and the risk and reward involved in pursuing these claims. If there are strong claims potentially at issue, your employer is very likely to be receptive to enhancing the proposed severance in exchange for a comprehensive release, and retaining our firm in this scenario could provide a prompt and significant financial benefit to you. Furthermore, there are numerous technical requirements that must be satisfied in order to allow an employer to enforce a release, so you need legal advice on these issues as well.
How do you go about proving my case? Won't it just be my word against my employer, including all of the managers and current employees who will "toe the party line?"
Cases often boil down to issues of credibility, but experienced litigators know how to develop all of the evidence that supports your recollection about what occurred. This includes not only your testimony, but testimony of all supportive witnesses and testimony concerning the treatment of other similarly situated employees, all documents associated with your employment (including personnel records as defined by Minn. Stat. § 191.860, which you have a right to review and request a copy of at your employer's expense), statistical evidence, evidence of the "culture" of the workplace and whether it supports a finding of illegal conduct, and a sophisticated analysis of the policies and procedures at issue, whether they are "state of the art" or have defects which courts often find indicative of a desire to discriminate. Our approach to screening the numerous requests we receive for representation is extremely thorough, often covering all of these areas. The result is that when we commit to offering representation, you can be confident that we have explored, developed and analyzed all of the available avenues to prove your case, and that your credibility will be bolstered all direct and circumstantial evidence that can be uncovered.
My employer is one of the largest companies in the country. How can I possibly win a case against a company with so many resources?
We don't fear pursuing meritorious claims against any company, no matter the size. Larry Schaefer and Andrea Rubinstein have successfully litigated claims to judgment or a favorable settlement against most of the largest employers in this state and throughout the country, including WalMart, Kmart, Northwest Airlines, Cargill, American Express, Target Corporation, Control Data, First Union Bank, Wells Fargo, 3M, the University of Minnesota, Ford Motor Company, and Verizon, among many others. We have the resources to pursue your claim through to judgment, and will not be deterred by the numerous motions, delays or other "scorched earth" tactics many companies employ to deter employees from suing them. Many of our most significant results, in class action and individual cases, have come after years of intense litigation. We have the resources to "level the playing field" against any employer, no matter its size.
I am an attorney representing a few individuals in an employment case I am investigating that appears to have class action potential. Do you affiliate with other attorneys in this work, and, if so, how does this work?
We welcome the opportunity to affiliate with other lawyers doing this work, and have done so on numerous occasions with class action and individual rights lawyers all over the country. We also welcome referrals opportunities, particularly if you are unsure about the class action potential, and strategy for prosecution, on any matter. The terms of our standard "Co-Counsel" arrangement are very simple and generally involve an agreement to share in the expenses of prosecuting the case, with a fee interest in direct proportion to the time invested in case prosecution. Please feel free to contact us directly with any questions in this area.
DISCLAIMER: The above content does not and is not intended to convey legal advice, but rather is informational only, not tied to or reflecting any specific claim or claims. Should you need legal advice, please contact us promptly or contact other legal counsel.
