If you sue a former employer for wrongful termination, you are asking the jury to award you money, called damages. Monetary damages are usually the only remedy available in a wrongful termination lawsuit.
But the jury doesn't just hand over a big pot of cash. The purpose of monetary damages is to make you whole: to compensate you for what you lost because of the employer's actions. You will have to prove not only that you suffered losses because of the employer's wrongful actions, but also the amount of those losses.
What Are Damages?
Wrongful termination cases are civil lawsuits. If you file a civil wrongful termination lawsuit, you (the plaintiff) are asking the court to order your former employer (the defendant) to pay money to compensate you for losses caused by the termination. This compensation is called damages. But, you cannot simply waltz into court and ask for “one million dollars” (to quote Dr. Evil); rather, you have to prove the amount of various types of losses you suffered at trial.
Here are the main elements of monetary damages that you may recover if you win a wrongful termination lawsuit.
What earnings have you lost because you were fired? This element of damages includes the pay you would have received if your employer had not fired you, as well as any earned and unpaid wages, overtime, or other compensation the employer has withheld.
However, this amount is reduced by any money you earned after being terminated. If you get re-hired at the same or a higher rate of pay at some point after the termination,you won't have any more lost pay as of the date of re-hire. If you get re-hired at a lower rate of pay, you will continue to have lost pay damages, equal to the difference between what your old job paid and what you are earning at your new job. For example, if you are out of work for one month, you count that full month of lost pay at the former pay rate. If you get a new job but are paid $1,000 per month less than at the former job, your lost pay damages continue to add up at the rate of $1,000 per month. Lost bonuses may also be a part of this element of damages.
The value of lost employment benefits is also an element of your damages from a wrongful termination. Because the cost and value of benefits can be difficult to quantify in dollar terms, you might need an expert to evaluate exactly how much you've lost for trial. This element includes medical and dental insurance, pension or 401k plans, stock options, and profit sharing, among other benefits.
In some wrongful termination cases, you can ask the jury to award emotional distress (also called “pain and suffering”) damages at trial. But, juries generally award emotional distress damages only if the employer has acted really badly and the employee has suffered in a way that can be verified by a mental health professional.
Often, the amount to be awarded for emotional distress is entirely up to the jury. This makes it difficult for a lawyer to evaluate how much you might receive for this part of your case.
Punitive damages are an amount the employer is ordered to pay for actions that are particularly egregious. Unlike other kinds of damages, which are intended to reimburse you for losses, punitive damages are intended to punish the employer and deter similar behavior by others in the future.
Punitive damages are not available for all wrongful termination claims and are not available in some states. In general, punitive damages are difficult to recover even where they are available, and impossible to quantify in advance. You may have to satisfy a greater burden of proof at trial in order to win punitive damages. And, even if these damages are available and you have met the burden of proof, the amount of such damages is entirely up to the jury.
Some types of employment-related claims may entitle you to an award of attorney’s fees. Most do not. In many (but not all) wrongful termination cases, your attorney will take the case on a contingent fee basis. This means the attorney will be paid a set percentage of what you win.
Anyone considering filing a lawsuit must do a cost/benefit analysis. You may have solid-gold legal claims, but a lawsuit may not be justified if you have very modest damages. Lawsuits are expensive, time-consuming, emotionally trying, and very risky. If you haven't suffered many actual losses from being fired, a lawyer may advise against litigation, simply because what you're likely to "win" in court won't be worth what it would cost to get it.