Top 5 Tips: So You Want to Sue Your Boss?

So you want to sue your employer for racial discrimination, sexual harassment, whistleblower retaliation, failure to pay you your last paycheck, what have you. Now what? Here are five tips all clients should keep in mind before they pick up the phone to call a lawyer.
Tip 1: Write it, don’t say it. People think it’s enough to complain, request or report things orally to their employer. They complain about discrimination to HR over the phone. Or they tell their supervisor about a health and safety code violation. Well, what are you going to do when HR or the supervisor denies you ever talked with them? Don’t believe it? Happens all the time. Avoid the “he said, she said” by communicating with your employer by emails or send letters (certified mail, return receipt requested). By doing this, you create a record.
Tip 2: Keep a journal. Don’t rely on memory, write everything down. The names of witnesses, dates, times, places, what was said, documents involved – the more detailed the better. And be professional about it. Don’t write that your boss is a %*&@! in the journal, because the journal could become evidence. Another thing, don’t leave the journal on your desk or in your desk drawer at work where your boss can find it. You might end up fired and your lawsuit dead.
Tip 3: Get witnesses. Emails, memos and letters are one form of key evidence in a lawsuit. Witnesses are the other. When your boss calls you a racial slur, pats you on the rear, or threatens to fire you because you reported him for illegal activity, talk to whoever witnessed it. Confirm whether they saw it. Try to get them on your side. Do this carefully and your case will have just gotten a lot stronger.
Tip 4: Don’t play lawyer. So you went to the internet and learned that “retaliation”, “hostile work environment” and “whistleblowing” are magic words. That doesn’t mean you should go waving those terms around in your emails and conversations at the workplace like your sword and shield. Don’t play lawyer. Chances are, your employer’s lawyer will be better at it than you are and if, as is likely, you get it all wrong, you’re the one who could come off looking like the bully, not the employer. Get a lawyer instead.
Tip 5: Don’t get mad, get even (or turn the other cheek). You’re being treated outrageously by your co-workers, your supervisors or the owners of your company, or maybe all of them. You’re depressed, scared and . . . spitting mad! To quote Al Pacino in Scent of a Woman, you want to take a flamethrower to the place! That’s fine if you want to end up in jail and without a lawsuit. Otherwise, take a deep breath, follow tips 1 to 4, and call an attorney. That momentary lapse where you curse your boss out like a sailor in front of your entire office could mean you no longer have a case.
More tips to come, but if you follow these five, you will be way ahead of the game. And your lawyer will thank you for it.


California presumes that the employment relationship is “at will” which in effect means that unless you have a contract that states otherwise (e.g. belong to a union with a Collective Bargaining Agreement) your employment may be terminated for any lawful reason, or for no reason, by your employer.  See Cal. Labor Code section 2922.  The “at will” presumption is not accidental.  It reflects a deliberate and quite Victorian view of the world.  The theory goes that society a whole prospers when labor markets are flexible.  Therefore, employers must be free to shed workers in downturns and hire them in upturns.  The increasing gap between the very rich and everyone else seems to make this notion suspect.  At the very least, however, one would think that there must be dozens of academic studies that have empirically validated the premise that “at will” employment leads to greater job creation and a more efficient labor force.  Surprisingly, there are no academic studies of any kind that show “at will” employment leads to greater economic growth and/or efficiency than employment with job protection.

Many of the EU countries have employment policies in which an employee cannot be fired after a given period of employment without a showing of “good cause” in a full round of trial like hearings.  (In the U.S. the closest example may be unionized teachers or other Civil Service employees who enjoy much greater protections than the rest of us.)  Britain’s coalition Government recently sought to reduce the job protections that apply in that country.  Before acting, Parliament commissioned an exhaustive study, called the “Beechcroft Review” whose goal was to collect and collate academic studies from around the world.  The Report would show conclusively the effect that “at will” employment had on economic activity and job creation when compared to the more regulated economies of the Continent.

Everybody expected a definitive, massive report detailing the negative effects of job protections on market economies.  Instead, the report, weighing in at 15 pages, meekly concluded that there is no data available that shows any benefit at all to an “at will” employment policy.  The BBC put up a great pod on the issue at: http://www.bbc.co.uk/programmes/b01hxtmp.  The hosts interviewed leading academics from around the world for their view on the benefits of “at will” employment.  The conclusion?  There is likely no benefit at all given the corresponding cost of sudden and severe unemployment.  Simply put, there is no proven benefit to “at will” employment and every reason to believe that it does more harm than good to a society as a whole.