What happens when your employer harasses you, discriminates against you, fires you for speaking up, fires you for no good reason, or steals money you’ve worked for? While the impact on your paycheck is obvious, the negative effects of this type of abuse reach far beyond just the loss of income. These actions affect your confidence in yourself, your relationships within your family, and your perception of fairness.
The difficult part is figuring out what to do now. Both Texas and federal law provide you with protections; simply knowing these protections exist does not mean you will be able to enforce them.
Jay Murray Law has been representing people for nearly four decades who have been abused by their employers. We want to help you understand the process of calculating damages in an employment lawsuit; the items that influence the amount of your settlement, and what the entire process involves.
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(214) 855-1420Understanding Your Legal Rights Under Texas and Federal Law
Protection Provided by Federal Statutes
Several federal statutes protect employees from various forms of abuse committed by their employers:
Title VII of the Civil Rights Act forbids discrimination and harassment on the basis of a person’s race, color, religion, sex, or national origin. Title VII also protects employees who report discrimination from being fired or punished for reporting that discrimination.
Americans with Disabilities Act (ADA) forbids discrimination against qualified persons with disabilities, and employers must make reasonable accommodations to allow disabled employees to perform their jobs.
The Age Discrimination in Employment Act (ADEA) protects employees aged 40 and above from discrimination based on age during the hiring process, termination, promotion, and other aspects of employment.
The Family and Medical Leave Act (FMLA) allows eligible employees to receive unpaid leave to address serious health issues or to take care of family members. Employees are also protected from retaliation from employers for filing a request for leave under FMLA.
The Fair Labor Standards Act (FLSA) establishes federal minimums for wages and overtime paid to employees, and provides employees with the opportunity to collect unpaid wages.
State Protection in Texas
Texas has its own protections for employees, which often exceed the protections provided by federal law. The Texas Commission on Human Rights Act (TCHRA), similar to the federal anti-discrimination statutes, is enforced by the Texas Workforce Commission Civil Rights Division (TWC-CRD).
In addition to anti-discrimination protections, Texas also has its own specific wage and hour laws, as well as a whistleblower protection statute for public employees. One key difference between Texas and federal law is that Texas is an “at-will” employment state. This means that an employee can usually be fired at any time by his/her employer, with or without cause. However, while an employee can be fired at any time, he/she cannot be fired due to an illegal reason, such as discrimination, retaliation, or exercising a protected right. The distinction between these two concepts is extremely important in employment disputes.
Statute of Limitation
Timing really counts. Under Title VII, the ADA, and the ADEA, prior to bringing a lawsuit alleging these statutory violations, an individual must first bring a complaint with the Equal Employment Opportunity Commission (EEOC) or the Texas Workforce Commission Civil Rights Division (TWC-CRD). In general, Texas employees have 300 days from the date of the alleged discriminatory event to submit a complaint with either agency. When pursuing claims under FMLA or FLSA, employees generally have two years (three years if the violation was “willful”) to file suit in court. If an employee fails to meet these time limits, he/she may lose all possibility of recovering any monies whatsoever. Please contact a lawyer prior to the expiration of the applicable statute of limitations.
Workplace Injustice Leading to Recoverable Damages
Not every poor boss decision leads to a viable legal claim. Some do. Listed below are examples of the most common types of employment cases resulting in recoverable damages:
Discrimination arises when an employer treats an employee unfairly or less favorably than others based upon a protected class characteristic(s), e.g., race, gender, age, disability, religious affiliation/national origin. Discrimination can occur in many contexts of employment, including hiring/firing/promotions/pay/assignments, etc.
Harassment refers to unwanted conduct toward an employee based upon a protected class characteristic(s) that creates a hostile working environment. Examples of harassment include sexual harassment as well as harassment related to an employee’s age/race/disability/religion, etc. Harassment can result in severe physical/emotional suffering.
Wrongful termination relates to an employee being discharged for an unlawful reason, i.e., due to discrimination/retaliation/exercising a legal right to take FMLA leave.
Misclassified Employees/Wage/Hour Violations include employees who are denied proper payment for hours worked, i.e., unpaid overtime,/misclassifying as an independent contractor/wrongfully deducted amounts from their check; they may have valid wage/hour claims.
Retaliation against whistleblowers refers to adverse actions taken against employees who report illegal acts or violations of safety regulations or other protected conduct.
The economic and emotional costs associated with experiencing wrongful terminations/harassment/discrimination/retaliation, etc., are significant. Lost wages/income/health insurance/career advancement opportunities/self-esteem can all suffer adverse consequences. The law attempts to restore victims of employment abuse.
Damages Available in Employment Lawsuits
When an employee prevails in an employment dispute/lawsuit, there are several categories of monetary awards available via judgment/settlement. Understanding each category will enable you to understand what you are seeking compensation for.
Economic Damages – Back Pay/Front Pay
Back pay is perhaps the simplest category of damages. Back pay represents wages/overtime/benefits/etc that would have been paid had your employer not engaged in illegal behavior leading to your discharge. For example, let us assume that you were earning $60,000 annually, and that you were illegally terminated by your employer. Further assuming it takes you 18 months to locate another position that pays approximately the same salary as your former position ($60K), then your back pay award would begin at approximately $90K prior to considering lost benefits and other potential losses.
Front pay addresses lost income when rehiring/reinstatement to your previous job is not feasible, i.e., if your job has ceased to exist/a hostile work environment exists/other reasons make it unreasonable/unwise for you to attempt to return to your previous place of employment. To determine front pay, courts assess the difference between what you would have earned and what you are likely to earn for a reasonable duration into the future.
Keep in mind: Mitigation. As mentioned previously, Texas courts expect you to seek reasonably comparable employment post-loss-of-job. If you fail to engage in efforts to find comparable employment during the relevant time frame (e.g., one year), your award of back pay could be diminished proportionally. Maintain records regarding all job applications submitted.
Compensatory Damages
Compensatory damages compensate employees for harm incurred personally due to their employer’s actions. Compensatory damages cover emotional distress/mental anguish/damage to professional reputation/medical or psychological expenses incurred as a direct consequence of their employer’s actions.
Courts examine evidence relative to emotional distress claims. Types of documentation reviewed by courts include:
- Therapy records
- Documentation demonstrating medical treatment for anxiety/depression, etc.
- Testimony from witnesses who have observed how your experiences with discrimination or harassment impacted you
- Your own detailed description of what occurred
- The quality of documentation directly correlates with the strength of your claim.
Federal law places caps on compensatory damages according to the number of employees employed by the defendant employer:
|
Employer Size |
Compensatory Damage Cap |
|
15–100 employees |
$50,000 |
|
101–200 employees |
$100,000 |
|
201–500 employees |
$200,000 |
|
500+ employees |
$300,000 |
Caps listed above apply only to claims brought pursuant to Title VII and ADA. Caps on compensatory damages vary for ADEA claims, and for Texas state law claims, caps may vary or may not exist at all, depending upon the statute at issue.
These amounts are not guarantees. All cases are unique, and the results depend entirely upon the facts of your case.
Punitive Damages
Punitive damages are meant as a punishment for employers that showed malice or reckless disregard for your rights under federal law. They are not awarded in every case. The standard for getting punitive damages is higher than the standard for compensatory damages. You have to show that the employer knew it was violating the law and didn’t care, or acted with hostility towards your rights when it violated the law.
When they are awarded, punitive damage awards can be significant. Federal law has a cap on punitive damage awards at the same levels as compensatory damage awards. There is also a combined cap across both categories. Some of the largest employment verdicts in Texas history included large punitive damage awards where employers engaged in egregious misconduct.
Liquidated Damages and Statutory Enhancements
Some federal statutes have built-in multipliers.
Under the ADEA, if an employee’s employer willfully violated the ADEA by terminating or failing to promote the employee based on age, the employee may be entitled to Liquidated Damages equal to back pay plus interest. This effectively doubles the amount of money you could recover from your employer through back pay.
Under the FMLA, willful violations trigger Liquidated Damages equal to wages and benefits lost due to the employer’s failure to allow the employee time off for family and medical leave.
Under the FLSA, unpaid wage claims can be doubled through Liquidated Damages if the employer acted in bad faith. Texas also has its own laws about how employees must be paid, which provide treble damages and attorney fees for certain types of Wage-theft cases.
Attorney’s Fees and Litigation Costs
Most employment attorneys, including Jay Murray Law, represent clients on a contingency basis. Clients never pay anything up front for representation. Attorney’s fees come directly out of any recovery made for you. In the event that you do not prevail in your case, you will not owe attorneys’ fees. Contingent fees in employment cases typically range from 33% to 40%, based on the complexity of your case and whether your case goes to trial.
In addition to paying attorney’s fees, successful plaintiffs in many employment cases are entitled to reimbursement for court costs, filing fees, and other litigation costs incurred during the course of litigation from the defendant under federal fee-shifting statutes such as Title VII and the FMLA.
There are additional costs associated with pursuing an employment claim:
- expert witness fees;
- deposition costs; and
- mediation fees.
Your attorney should advise you regarding these types of costs before your lawsuit is filed so that you know what to expect.
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Factors That Affect Your Potential Recovery
Every employment case is different. And while there are factors that may affect the value of your case, they are all combinable.
Strength of the Evidence. Claims that are supported by strong documentation tend to be stronger than claims that are solely dependent upon memories. Documentation can take many forms, including emails, texts, performance evaluations, internal complaints to human resources, and disciplinary documents. Witness corroboration can also greatly strengthen your claim.
Severity of Conduct. While one-off comments made by coworkers may constitute unacceptable behavior, repeated racially derogatory comments from supervisors or systemic attempts to eliminate an older worker create far greater liability issues for employers. Courts and juries are sensitive to severity and repetition.
Size/Resource Status of Employer. Generally speaking, larger employers present a higher statutory cap for potential liability than smaller employers, and often possess greater financial resources to expend on litigation. However, because they are more likely to suffer reputational consequences for their actions, larger employers may also be more willing to negotiate settlements.
Length of Time Employee Experienced Harm. For example, while a wrongful termination that resulted in six months lost wages presents a smaller claim than a wrongful termination that harmed your career over a three-year period, the duration of your experience impacts both your compensation for past lost wages as well as your compensation for non-economic harms experienced due to the discriminatory action(s).
Mitigation Efforts. As previously discussed, you must make reasonable efforts to mitigate your loss. Employers and courts will scrutinize whether you were actively seeking new opportunities equivalent to those you had prior to losing your job.
Emotional Distress Claim. Both medical records documenting the impact of the discrimination on your daily functioning, as well as records demonstrating the impact of the discrimination on your personal relationships and overall mental health, support your entitlement to non-economic damages.
Local Jurisdiction Specifics. Texas courts and juries are unpredictable and may behave differently from courts/juries in other jurisdictions. Familiarity with local practices in courts/juries located within Dallas County and/or other areas within Texas may assist in predicting how your case will proceed.
General Guidelines on Settlement Ranges and Examples of Cases
Settlement amounts vary greatly depending on the type of claim, the strength of the evidence in support of that claim, and how aggressively a client pursuing those claims is able to advocate for themself/that client in court/law. That said, here are general references drawn from EEOC data and other public reports on cases:
|
Claim Type |
Approximate Settlement Range |
|
Discrimination (race, sex, age, disability) |
$30,000 – $300,000+ |
|
Sexual harassment |
$30,000 – $500,000+ |
|
Wrongful termination |
$30,000 – $500,000+ |
|
FMLA retaliation |
$25,000 – $250,000+ |
|
Wage and hour violations |
$5,000 – $100,000+ (varies by size of unpaid wages) |
|
Whistleblower retaliation |
$50,000 – $500,000+ |
According to EEOC data, the average out-of-court settlement for discrimination claims is approximately $40k. However, this number hides a wide range. Strong cases with clear evidence of wrongdoing, significant lost wages due to wrongful termination, and well-documented emotional distress can settle for much more than $40k. Cases that go to trial and result in verdicts can result in awards substantially greater than $40k.
The above figures are not guarantees. Each case is unique, and outcomes are based solely on specific facts involved in each individual case.
The Steps to Sue Your Employer
Understand the steps to help you make better decisions and establish reasonable expectations regarding your case.
Step 1: Consult with an Attorney
Prior to doing anything else, consult with an employment lawyer. There is no cost for consultation with an attorney at Jay Murray Law. A consultation provides you with an honest opinion of whether you have a valid claim, an estimate of what your claim may be worth, and what you may expect the process to entail. Not seeking legal guidance prior to taking action is one of the most common mistakes people make in these types of cases.
Step 2: Collect Documents and Evidence
Collect documents now. Save all emails, texts, and voicemail recordings. Store your paycheck stubs, your offer letters, your performance evaluations, and any correspondence (written) that relates to your termination or the alleged discriminatory conduct. Document everything that occurs as soon as it happens. Note the names of all individuals who observed any aspect of the conduct or incidents that you believe were discriminatory or harassing.
Step 3: File a Complaint with the EEOC or TWC-CRD
In order to bring a federal employment discrimination claim, you must first file a Charge of Discrimination with either the EEOC or the TWC-CRD. In Texas, you have 300 days from the date of the alleged discriminatory act to file. Upon receipt of your complaint, the agency will commence an investigation and may attempt to facilitate a mediation. When the investigation concludes, and the matter has not been settled, the agency will issue a “right to sue” letter, permitting you to file a Lawsuit in federal court or state court.
Step 4: Negotiations and Mediation
As noted above, most employment matters are settled before Trial. Following the filing of a Charge with the EEOC or TWC-CRD, or the commencement of a Lawsuit, negotiation and mediation typically occur. A competent attorney will negotiate aggressively to secure a settlement amount that represents full, fair compensation for the damages you have sustained. Do not let rushing into a bad deal cause you financial harm.
Step 5: File Suit.
When settlement negotiations fail, your attorney will file a complaint with the court. From this point forward, your case will move into the discovery phase, wherein each party will exchange documents, take depositions, and collect other Evidence. Additionally, some employers include mandatory arbitration agreements in their employment contracts. Depending on the terms of such an agreement, arbitration may provide a quicker alternative to litigation in resolving your case. However, arbitration may limit your rights to discover information relating to the defendant’s liability and may also cap the amount of damages you are entitled to receive.
Step 6: Trial and/or Settlement.
Most employment cases settle during or after discovery. When a settlement is not reached, the parties proceed to Trial. At Trial, either a jury or a judge will determine both liability and damages. Either party may appeal a Verdict.
Typical Timeframe for Resolution.
Employment cases normally take between six months and three years from the time you file an initial Charge until resolution, based on various factors including the complexity of the case, the defendant’s willingness to settle, and the court schedule. Those cases that are able to be resolved within the EEOC process can be resolved more quickly than those that proceed to Trial.
Ways to Increase the Value of Your Settlement/Verdict.
The value of your case is not fixed. The actions you take from day one can either enhance or decrease the value of your recovery.
Document everything. Keep as much contemporaneous evidence as possible. The more Evidence you have available, the more difficult it is for the defendant to create an alternate version of events. Keep copies of all materials in a location where they can not be accessed by your employer.
Obtain legal advice early. Consulting with an attorney early on in the process enables you to protect evidence, meet deadlines, and avoid errors that may negatively impact your claim later.
Pursue medical/mental health treatment. If you suffered emotional distress due to harassment/discrimination/wrongful termination, treatment is beneficial for your own well-being; documentation of your treatment is valuable Evidence in support of your emotional distress claim.
Use experts. In cases where you have incurred significant lost wages/career interruption, consider retaining an economist/vocational expert to quantify losses in a manner that will carry weight with the jury/judge/opposing counsel.
Avoid social media posts regarding the case. Employers and their attorneys will seek out any posts on social media that contradict your claims. Avoid posting about your case, your emotional well-being, or anything else that may serve as adverse Evidence against you.
Meet mitigation obligations. Search for work similar in nature to what you previously did; document all aspects of your job search. Meeting your obligations regarding mitigation protects your back pay claim and demonstrates good faith efforts to mitigate your damages.
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Costs & Risks of Suing Your Employer
Although litigation is not without its negative consequences, you deserve honest information.
Financial costs. As previously stated, most employment attorneys practice contingency fees. Nevertheless, litigation is not free. Expert witnesses/court reporters/filing fees/etc. Can add up quickly. Be aware of how your attorney handles such expenses and whether they will come out of your recovery amount.
Time/energy/emotional toll. Employment cases require ongoing participation on your part: depositions/hearings/documents/communication with your lawyer. Retelling the experience through litigation may be difficult for you, especially when the basis of the case was due to harassment or discrimination.
Possible results. When you file a lawsuit, you could receive a favorable judgment, you might lose completely, or you might wind up somewhere in between. If you lose, you generally won’t have to pay your attorney’s fees since most employment attorneys use contingency arrangements. However, you may be liable for some costs associated with the lawsuit. In addition, some employers may seek reimbursement of their costs from successful plaintiff(s) in limited instances.
Alternative dispute resolution. In nearly all cases, mediation is something to consider either before or while pursuing litigation. Mediation allows parties to reach a resolution more quickly than traditional litigation, maintain more privacy than litigation provides, and sometimes achieve a more desirable outcome than a jury verdict. Arbitration can be quicker than litigation and is often contractually required, but it limits the extent to which each party has access to information about the opposing party (discovery) and limits the amount of money available as part of an award.
Frequently Asked Questions
Can I sue my employer if I signed an arbitration agreement?
Arbitration agreements are common in employment contracts, but they’re not always enforceable, and even if you signed one, some claims can still be pursued through court. Recently passed federal legislation known as the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act” prohibits mandatory arbitration of all sexual harassment and assault claims. An attorney will need to review your agreement and determine what rights you may still possess.
Can I sue my former employer?
Yes. Many employment lawsuits involve conduct that occurred before an employee left their company. As long as you meet any applicable filing deadlines, you can pursue a claim against a former employer.
What happens if my employer offers me a settlement before I file a suit?
Get a lawyer involved before signing anything. Settlement offers made by employers prior to litigation are often significantly lower than the value of the case. Once you sign a release after receiving such an offer, generally speaking, you give up your right to seek further legal action regarding the alleged misconduct at issue. Have an attorney evaluate the offer before accepting it.
Can I handle my own case without hiring a lawyer?
Technically yes. Practically, it is rarely recommended. Employment law is extremely complex. There are strict timeframes for submitting claims. Additionally, employers typically have experienced teams of lawyers working on behalf of the company. Plaintiffs who represent themselves typically recover less money and risk making serious errors, which could potentially harm their ability to obtain compensation. Most employment attorneys work on contingency, so there shouldn’t be any financial reason for you to try to go it alone.
What happens if I lose my case?
If your case goes to trial and you lose, under a contingency arrangement, you generally won’t owe attorney’s fees. You may, however, be responsible for certain costs associated with litigation depending on your agreement with your attorney and the specific outcome of your case. Discuss potential outcomes with your attorney early on. Don’t wait until the end.
If you’ve been treated unfairly at work in Texas and want more information about options available to you, contact Jay Murray Law today at (214) 382-0479 for a free consultation. We’ll listen to what happened, give you an honest assessment, and if you have a valid case, we’ll fight harder than anyone else to get every penny due to you.
Each case is unique. Previous results do not guarantee similar results.
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