Sometimes, there's more to a layoff than meets the eye. Even if your employer claimed you lost your job because the company needed to cut costs or trim staff, that may not be the end of the story. In some cases, what the employer calls a "layoff" is actually a cover that hides the true and illegal reason for getting rid of an employee.
If you lose your job in a questionable layoff, does it make sense to hire a lawyer? An initial consultation with an experienced employment attorney can answer that question and help you decide what to do next.
You may suspect that your employer’s decision to lay you off or let you go in a reduction-in-force (“RIF”) was unfair or wrong, but that doesn't necessarily mean it was illegal. How can you assess whether it is worth challenging in court? That’s where an employment lawyer comes in. A lawyer can walk you through the facts of your situation, the laws that may apply, the strategies available to you, and your chances of success.
An employment lawyer will examine the details of your layoff. For example, if a large number of the employees selected for a RIF all belonged to the same legally protected group (such as people over 40) and you are in the protected group as well, the employer may have targeted you for an illegal reason (age discrimination, in this example). (For more information about wrongful termination claims, seeWrongful Termination: Was Your Firing Illegal?)
Even if the overall layoff was legal, you might have been included in the layoff group illegally. For example, perhaps your position was not initially selected for layoff, but your manager put your name on the layoff list after you complained of sexual harassment or dangerous working conditions. A lawyer will ask you questions about your work history, performance, and more to figure out whether your employer included you in the layoff to mask a wrongful termination.
The lawyer will also ask you questions to find out whether the employer fulfilled its obligations for even a legal layoff or RIF. For example, an employer must pay you a final paycheck with all of the wages you have earned within the time required by state law. And, if the lay-off was part of a plant closure or a mass lay-off, the employer must give employees 60-days’ notice of lay-off. (For a discussion of plant closings, see Layoffs and Plant Closings: Know Your Rights.)
The lawyer can lay out all of the legal and other options available to you. For example, the lawyer can identify resources, such as:
The lawyer will also tell you what services he or she can offer. These may include assisting you with filings at the agencies mentioned above, sending a letter to your employer seeking severance pay or settlement of claims, or filing a lawsuit.
The lawyer may tell you that your only option is to file for unemployment and move on. Keep in mind that good advice is not always welcome advice: The lawyer’s job is tell you candidly what your legal options are.
One of the main services an employment lawyer provides to you after you’ve been lost your job is to listen and give you an objective, professional evaluation of your potential case. The lawyer may not tell you what you want to hear (“you have a slam-dunk case!”), but you should leave the meeting satisfied that you have explored your legal options rather than just accepting your fate. The lawyer's advice and counsel will give you the information you need to make informed decisions about your future.
One of the main things you need to do before you can make a decision about how to move forward is to weigh the costs of taking legal action against the possible benefit of doing so. If the lawyer tells you that your layoff or RIF selection violated the law in some way (for example, because the employer laid off all of the employees over 40), the lawyer will also tell you in general what you could possibly recover in monetary damages by suing your employer or attempting to settle your claims before litigation. (For a discussion of damages, see Damages in a Wrongful Termination Case.)
All lawsuits are risky. They can be thrown out by the judge, witnesses may lie or just fail to persuade the jury, and juries can be unpredictable. The risk of losing is yet another factor that the lawyer will help you assess when you are doing the cost/benefit analysis.
Ask the lawyer to explain the fees to represent you. Attorney fee amounts will differ based on the action you and the lawyer decide to take; some actions take longer or are more difficult than others. For example, the lawyer may offer to write a letter to your ex-employer to find out if it is possible to settle your claims without having to file a lawsuit. This will take a few to several hours of attorney time, while a full-blown lawsuit will take hundreds of attorney hours.
The lawyer will also explain the fee structures available. The lawyer may ask for a retainer fee (an amount paid up front to secure the attorney’s services) and/or an hourly fee. Or, the lawyer may offer to represent you on a contingent fee basis, which means that the lawyer receives a portion of whatever money is paid by the employer (either through settlement or after a jury award).
Lawsuits are expensive, and costs are a big part of the reason. Costs are expenses other than attorney’s fees and include filing fees, photocopy costs, deposition fees, expert witness fees, and the like. If you're considering a lawsuit, ask the lawyer for a ballpark figure for costs.
Once you have gone over all of these factors with an employment lawyer, you can make an informed decision about whether or not to hire the lawyer to challenge your layoff or RIF selection. If the lawyer explains that you don't have strong legal claims, you can move on, secure in the knowledge that you've considered your options. If the lawyer thinks you may have a good case, you can decide on a strategy for pursuing your claims.