How hard is it to sue and win an employer wrongful termination or other suit A person was hired for computer programming work. He was hired on salary. It was expected to be a full-time, 40 hours per week thing. The company has traditionally, when asking people to work a little overtime, has allowed comp time later to make up for it. Soon after being hired, the employee discovered the group he was hired into to be on a 'death-march' Within a few week of the hire date, the company then required the employee to work late every night, often until 10 or 11pm. They still required the employee to be in at the normal time of 9am and no later. They then required mandatory Saturday, Sunday AND holiday work with the same hours. The employee averaged 70, 80 and often 90 hours of work per week. The company kept saying that the project should be finished soon and after that they could offer return to normal work ours and with comp time. This went on and on with excuse after excuse being given to the employee as to why the project kept going on and on. After 6 months of this much work, the project was finished. The employer terminated the employee as soon as it was finished with no explanation. Even if the position was classified as 'exempt' couldn't this be classified as so egregious as to be negligent or even abuse of the employee. What would the chances be of being able to sue for some form of back make-up pay? The company terminated 5 people on that day, all over the age of 40. They hired several others near the same time, all in their 20s. Could that be a reason for suing as well?
In Texas, as in most of the US, the law is "Employment at Will". This means that an employer is free to fire people at any time, for any reason, or none, as long as it is not for one of the few reason forbidden by law, such as racial or age discrimination. Hourly employees are entitled to overtime pay in such cases, but "exempt" employees are not. Nor are they entitled to comp-time as a matter of law, that is at the option of the employer. (The question seems to imply that the employee in question was "exempt" but does not actually say so.) The only really effective recourse against that sort of "death march" is to quit and find a better job, or to threaten to do so while they still need you, unless the conditions return to acceptable ones. I have heard of people in such a situation who "get sick" every day at 5:30pm, because local law forbid requiring ill employees to work. But that is pretty much inviting an arduous and possibly expensive administrative and/or legal battle, and will depend on the specifics of the state/local law. In any case, it is too late for the person in question to try that. On the facts as stated, there might be a valid claim of age discrimination. But additional facts would be needed to establish this, and it would be in my view unwise to try it without consulting a good employment lawyer. Such a lawyer could advise exactly what must be proved and how, and what the probable chances of any recovery would be.
There seems to be one national law about leave, the Factories Act, 1948 §79, which grants an adult employee 20 days of paid leave after a year of employment, assuming the person has worked the required number of days within the year. Sub-section 3 addresses accrued leave at the end of employment (for whatever reason), that he: shall be entitled to wages in lieu of the quantum of leave to which he was entitled immediately before his discharge, dismissal, quitting of employment, superannuation or death, calculated at the rates specified in sub-section (1), even if he had not worked for the entire period specified in sub-section(1) or sub-section (2) making him eligible to avail of such leave In the case of a person quitting, the law continues and such payment shall be made (i) where the worker is discharged or dismissed or quits employments before the expiry of the second working day from the date of such discharge, dismissal or quitting As for accumulation of leave, sub-section (5) says If a worker does not in any one calendar year takes the whole of the leave allowed to him under sub-section (1) or sub-section (2), as the case may be, any leave not taken by him shall be added to the leave to be allowed to him in the succeeding calendar year: Provided that the total number of days of leave that may be carried forward to a succeeding year shall not exceed thirty in the case of an adult or forty in the case of a child So there is a statutory "use it or lose it" element. That said, the question is whether you are a "worker" as defined by that act. The definitions say: "worker" means a person employed directly or by or through any agency (including a contractor) with or without the knowledge of the principal employer whether for remuneration or not in any manufacturing process, or in cleaning any part of the machinery or premises used for a manufacturing process, or in any other kind of work incidental to, or connected with the manufacturing process, or the subject of the manufacturing process but does not include any member of the armed forces of the Union Tech work is typically not considered to be "factory work" and is not obviously part of manufacturing, but writing software might be work "connected with the manufacturing process". There is an act implemented at the state level (Maharashtra version here), the Shops and Establishment Act. Ch VII of the act governs leave: the terms are similar to the above act in terms of accrual, number of days, prior service. However the payout on termination wording is different: If an employee entitled to leave under sub-section (1) [or (1-A)] is discharged by his employer before he has been allowed the leave, or if, having applied for and having been refused the leave, he quits his employment before he has been allowed the leave, the employer shall pay him the amount payable under section 36 in respect of the leave The important difference is that the payout condition is conditioned on either being fired, or having applied for the leave and being refused (after which point you may resign). If you don't make a claim for leave and you resign, then the conditions of that law don't appear to apply. But, in another state, the wording could be different, so it depends on your state. The definition of "commercial establishment" includes "legal practitioner, medical practitioner, architect, engineer, accountant, tax consultant or any other technical or professional consultant". It is possible that a different state's version of the act includes a payout requirement.
How should I proceed? I am asking law friends to recommend some employment lawyers, but other than this, can I do anything else? You definitely don't need an employment lawyer for this. From a legal standpoint, the matter is very simple: If you grant their request (whether by signing or otherwise expressing your acceptance), you would be waiving any remedies currently available to you for their breach of contract. The company's attempt to override its contract with you is quite naive, but the company can always (and evidently does) try to get away with its liability nonetheless. I would not be surprised if the company subsequently tries harder to intimidate you, but that does not change your legal position &amp; merits unless you sign the waiver the company is pursuing. Asking for your post-termination availability reinforces the notion of company's poor planning and subpar management.
Termination is a matter of fact That is, it has either happened, or it hasn’t. Whether it has or hasn’t depends on a multitude of factors including the terms of the contract, the actions of the parties, and communication between them. These factors are so case specific that it is impossible to generalise. Further, within a given case, reasonable parties may differ on if a contract has been terminated, which party initiated the termination, and if that termination was lawful. Usually, these cases involve mutual allegations of repudiation by the other party and rightful termination in response by our side. These issues are likely to be the major ones that the court or tribunal will have to determine. A claim for damages would need to be pursued as part of the overall case but the deadline for raising them is a procedural matter for the court or tribunal. Failing to raise them as an issue in pre-litigation correspondence would not be a bar to raising them in a claim or counter-claim. However, failing to raise them at the earliest opportunity denies the offending party the opportunity to mitigate the damage and, if they can show that there were actions they could have reasonably taken to mitigate but couldn’t because they weren’t informed, then that may reduce or eliminate the damages payable.
Unless you are a salaried worker, all hours worked must be paid, and that could include paying overtime if the actual hours that you work is over 40 hrs. a week. You may file a complaint with the US Dept. of Labor, and the boss may not fire you for complaining. Your state DoL may have even stiffer rules and penalties.
If you sue a person for a tort X, one of the things you have to prove is that the defendant did do X. A baseless belief that it must have been so-and-so will do you no good. You do not have to have iron-clad evidence of your allegations, for a civil suit, but you have to show with a preponderance of evidence that the claim is true. A combination of "hates me" and "provably did this a number of times in the past" could well suffice. As for damages, it depends on what harm you actually suffered. If you get fired and you show that it was because of a false allegation, you would probably have to take this to the big court, since small claims court handles amounts in the $5,000 range (jurisdiction-specific).
As soon as you start working in your second job, you will be violating your first contract. If you refuse to start working in your second job, you will be violating the second contract. You were very careless. Not much of a legal question, but the question is how to get out of the mess you created at the lowest possible cost. I would suggest that you go as soon as possible to the second company (the one with the part time contract), tell them that you are very sorry but you didn't read your first contract properly, and that you cannot start working for them. If you seem suitably sorry there's a chance that they will tear up your contract and send you home, with no more damage than a big red "DO NOT HIRE" in you records. If things don't go nicely (and you don't have any legal right to expect them to be nice about it), you go and get a lawyer.
Let's say that the mediation doesn't succeed to achieve voluntary compliance satisfactory to both sides. What happens next? Under Sec 706(e) it appears that the complainant has to litigate himself in a civil court, and potentially be exempt from any fees and have an appointed attorney. Not really. The EEOC at that point (within a certain time period) either decides to litigate the case itself, or if it chooses not to litigate itself, authorizes the employee to litigate the case at his or her own expense, and if the employee prevails, the remedy awarded by the Court includes what the court determines to be the employees reasonable attorneys' fees. The details of the process and the relevant deadlines are available at the EEOC's website. Basically, if the case isn't resolved in mediation, the employer makes a position statement, the employee responds, the EEOC investigates (using its subpoena power, if necessary) on average for ten months, and the EEOC either prosecutes the case itself, or it issues a "Notice-Of-Right-To-Sue" which allows the private employee to hire a lawyer and sue the employer. How often does it actually happen? The EEOC handles about 90,000 charges per year and wins about $525 million a year in judgments and settlement awards (parallel agencies at the state level handle additional cases in a similar manner). The vast majority of the cases are settled or result in a Notice of Right To Sue letter, with only 100 to 400 lawsuits per year actually filed by the agency resulting in $22 million to $168 million a year of awards in court cases. About 25% of these cases go to trial. The rest settle before trial or are resolved in motion practice before trial (including default judgments, when the employer simply doesn't respond to the lawsuit). Once the EEOC brings a lawsuit, settlement is the most common resolution. So, there are a lot of cases, although there is only about one EEOC claim per 1,000 employees in the workforce subject to EEOC jurisdiction per year. Whether this is a lot of complaints or not many, is really a matter of opinion. Only about one in twenty-five people will ever file an EEOC claim in his or her entire life, although this will vary considerably based upon a person's race, national origin, religion and sex. A non-Hispanic white Christian male of European descent is much less likely to file an EEOC claim during his lifetime than someone who does not fit that description. Realistically, a majority of cases that aren't abandoned by the employee in the administrative process (which is a significant share of the total) or found to have no factual basis (a small but significant percentage) are settled for fairly modest dollar amounts (an average of about $10,000 to $20,000 per claim). The bigger dollar cases for a single employee usually end up being brought in a private lawsuit rather than by the EEOC itself. About 14,000 of those charges each year result in a Notice of Right to Sue letter followed by a civil lawsuit filed by a lawyer for the employee. It isn't terribly easy to determine from official statistics what proportion of cases resulting in a Notice of Right to Sue letter rather than an EEOC lawsuit ultimately do not result in a lawsuit being filed by the employee. About 250 of these cases (not quite 2%) go to trial each year. The rest settled or are resolved in motion practice before trial (including default judgments, when the employer simply doesn't respond to the lawsuit). Once an employee brings a lawsuit, settlement is the most common resolution. Folk wisdom in the employment litigation field is that the average settlement of a case of ordinary strength on the merits that is settled fairly early on in the process is about six months of wages. An estimate that the employees in private lawsuits secured more than $200 million a year in settlements and money judgments is probably a gross underestimate. It could easily be $500 million to $1 billion per year. But, there are no good statistics available since settlement amounts are overwhelmingly confidential. The EEOC sues on behalf of the employee in cases it chooses to litigate itself on a weekly basis, and likewise declines to prosecute and certifies the case to allow the individual to prosecute the case with a private attorney all the time. Is there any relevant case law? Yes. Pretty much every relevant detail of the process has been litigated in case law that has produced reported decisions because there have been many thousands of employment discrimination cases litigated under the Act. There are probably at least two dozen to four dozen new published appellate decisions in the federal circuit courts each year on these kinds of cases, if not more, and those decisions have come at a pretty steady rate for the past half century. There are hundreds of published decisions interpreting these statutes in almost every one of the federal circuits. On quite a few issues, there are splits of authority between different circuits regarding how to interpret the law that will ultimately be resolved by the U.S. Supreme Court, or by Congress, or that may remain unresolved forever. How will the civil court try the case? Will the judge reference the Civil Rights Directly? It is a little unclear what you are asking here, but I will do my best. Regardless of whether the EEOC or the individual employee brings the case, it is filed as a Complaint in federal court like any other federal lawsuit, litigated according to the Federal Rules of Civil Procedure, and resolved in the vast majority of cases either by a judge in a pre-trial motion, by a settlement between the parties, or by a jury trial presided over by a judge. In a jury trial, the judge tells the jury what the applicable law says and the jury decides if the employee has proved a case against the employer when applying that law after hearing the evidence presented at trial and then decides what damages award to make, on a very short jury verdict form. In a bench trial (i.e before a judge without a jury), the judge makes those determinations in a lengthy written ruling setting forth the factual and legal basis for the judge's determination on the merits. Jury trials are much more common than bench trials in these kinds of cases, partially because plaintiffs want juries to make a damages determination, and partially out of a perception (not entirely inaccurate) that judges tend to be pro-employer on average. What is a likely punishment? Punishment is mostly the wrong term. It is a lawsuit for money damages to compensate the employee for harm actually suffered. The jury (or the judge if the case can be decided before trial in a motion for summary judgment or if a jury trial has been waived) determines the amount of compensation, if any, which should be awarded for lost wages, non-economic compensatory damages, etc. and the judge then awards attorneys' fees and court costs based upon the submissions of the parties after the trial is over based upon a determination of what is allowed by law and what is reasonable. To some extent, an employer's obligation to pay attorneys' fees and costs acts as a proportionate punishment for not immediately settling a case where the employer is found to be in the wrong. To some extent, non-economic damages can constitute a punishment. But, when an employer is found to have discriminated intentionally, which is most of the time, punitive damages can also be awarded, although they must be proportionate to the amount of actual compensatory damages awarded, typical one or two times the compensatory damage award unless that award is very small. Statutory liquidated damages are sometimes awarded in lieu of certain kinds of punitive and compensatory damages awards in age and sex discrimination cases under the Equal Pay Act. There are also dollar limits on awards based upon the size of the employer. Why is the process convoluted by adding an extra step in form of the commission? Mediation is allowed as a compromise to encourage negotiated resolutions that avoid litigation costs before everyone has spent a lot of money on lawyers. In practice, a surprisingly large number of cases result in pre-trial mediation resolutions, often in cases where an outcome if the case had gone forward to a trial would have been uncertain. The involvement of the Commission is a compromise between having a system where all cases are prosecuted at state expenses and one in which all cases are brought privately with an opportunity to win attorneys' fees if one prevails. The EEOC has usually used its authority to bring cases that are clearly cases of improper employer conduct where due to the small dollar amounts involved or the number of employees affected, an individual lawsuit would not provide an adequate remedy since private lawsuits would not be brought otherwise. It is very hard for a private attorney to justify bringing an employment discrimination lawsuit over a case where the damages are likely to be in the $5,000 to $25,000 range because the employee doesn't make much money unless liability is 100% clear (e.g. there is an admission on videotape from the employer), despite the fact that a prevailing party can get non-economic damages, punitive damages, attorneys' fees and costs. So, it is particularly hard to bring employment discrimination cases on behalf of employees who don't earn much even when they aren't discriminated against. The availability of EEOC enforcement prevents employers of low wage workers and workers in temporary employment whose damages are small from ignoring the Civil Rights laws with impunity. A private lawyer does something on the order of $30,000 to $150,000 of billable work to bring an employment discrimination case involving a single employee-client to trial, and a lawyer defending such a case for an employer will typically incur more legal fees for their employer client than the employee's lawyers do, while the employer's lawyer defends the case all of the way through a trial, even before considering any amounts actually awarded to a prevailing employee in a case where the employee wins. Each side's legal fees, individually, will usually exceed the amount of compensatory and punitive damages awarded combined in a fairly small dollar case for an employee who wasn't paid very much, or at least didn't lose a huge amount of money economically due to illegal discrimination (for example, because the employee wasn't promoted while a less qualified candidate was promoted). This is an important reason why lots of cases settle and why the EEOC is necessary. The EEOC process also provides a means by which arbitration agreements with individual employees can be circumvented because the EEOC is not a party to those agreements and is not bound by them. Why isn't discrimination simply prosecuted by the state's attorney? After all racial discrimination very much fits the definition of a public wrong. Government agency resources aren't unlimited, so the government can't prosecute every credible complaint, so the EEOC has to pick and choose how to get the most bang for its available resources. In practice, the EEOC can only afford to pursue about one in ten of the employment discrimination cases subject to its jurisdiction that go to trial with its own lawyers. The cases it can't afford to bring, it delegates to the private sector rather than simply leaving those cases unprosecuted as would happen in the criminal justice system. This also provides a way for an employee who has a lazy or unenthusiastic government lawyer assigned to their case at the EEOC who doesn't take what the employee sees as a strong case seriously a way to get relief for employment discrimination despite the fact that the EEOC isn't willing to back them up. Private lawsuits are a check and balance against bad EEOC decisions about how strong cases are as well as a way for the EEOC to avoid financing the legal fees of people who can afford to sue on their own. Is the enforcement any good? Lots of employees over the years have gotten lots of money, although probably not 100% of the amount of the economic harm they suffered (and, of course, employee and employer attorneys have gotten paid a lot of money in the process as well, which is good if you are a lawyer, but is dead weight loss from an economist's point of view). But, more importantly, the behavior of employers has changed greatly as a result. In practice, most lawsuits, and almost all lawsuits not brought by the EEOC itself, involve either wrongful termination or failure to promote someone, rather than discriminatory hiring, since it is hard to show an individual right to be hired for which an individual is entitled to compensation. Even in EEOC cases, most are brought for discriminatory advertising or openly admitted discrimination in hiring, rather than covert discrimination by an employer in hiring on a non-permitted basis. The EEOC brings a handful of cases alleging covert discrimination in hiring against medium or large employers each year, in part, just to provide a credible threat to anyone considering doing so, often with a combination of tips from insiders (particularly those from hiring officials who are fired in retaliation for not following a discriminatory hiring policy) and with undercover "test applicants" who submit functionally identical resumes for the same job when many job openings are available. But, this is usually a tiny share of the total volume of employment litigation brought under the Civil Rights Acts. There is a certain irony in this, because employers who are willing to hire someone who belongs to a "protected class" in the first place, who hence, are probably not the most discriminatory employers in the market, are more exposed to a realistic risk of a discrimination lawsuit, than employers who refuse to hire anyone in a "protected class" in the first place, so long as the employer keeps its mouth shut about this practice and is willing to lie and come up with false pretexts for its actions. Dishonest gross racists and clear misogynists are under punished, while less culpable employers who are more honest but still a little bit discriminatory in the cases of a few well paid employees are over punished relative to more culpable employers. Also, employment discrimination laws provide the most monetary compensation to the most competent and well paid employees who probably have the greatest capacity to mitigate their damages by seeking other employment from less discriminatory employers, while providing the least compensation to the marginal employees for whom discrimination in employment most impacts their quality of life. Indeed, often the most marginal employees aren't even willing to risk filing a complaint with the EEOC for fear of being blacklisted in the future in a manner that is impossible to prove. Still, at a minimum, by making it illegal to publicly state a discriminatory reason or to state a discriminatory reason to someone who could testify against you in court, the laws in question have changed the internal normative standards that managers of medium and large sized business apply on a day to day business such that at least lip service and public commitment is given to the requirements of the civil rights laws. This change in corporate culture has probably had more of a real world effect than actual suits for damages have in regard to discrimination in hiring. The benefits of the voluntarily discontinuation of discrimination in employment as employers internalized the norms established by the civil rights laws for the most part has provided far more benefit to employees who were previously discriminated against than litigation and settlements resulting from the EEOC process. For example, when Sandra Day O'Connor (future Supreme Court justice) was a young lawyer, fewer than 5% of attorneys were women and she was often mistaken for a secretary or receptionist by clients. Now, about half of all young associate lawyers (even at very large firms who graduated from very prestigious law schools) are women. Almost all of this change was due to a change in professional norms that were a direct result of the Civil Rights Act of 1964 (women had legally been allowed to be lawyers since the 1920s almost everywhere and earlier in some places), rather than through case by case litigation. The Civil Right Act opened up a huge new lucrative profession to women and minorities, and the experience of the legal profession was the norm and not the exception. Before the act, women were pretty much limited to school teaching, being librarians, nursing, secretary work, food service, day care, piece work sewing and laundry work. After the Civil Rights Act, their employment opportunities dramatically increased. The Civil Rights Act of 1964 is likewise, more or less single handedly, responsible for today's black middle class which would have been an order of magnitude smaller otherwise. There are economic arguments that discrimination laws do or do not do much good, but those arguments rarely consider the fact that the law, when it was first enacted, dramatically changed corporate culture and the moral viewpoints and norms of the middle and upper middle class who act as employers making hiring decisions across the nation. Until the Civil Rights Act was enacted, tradition and prejudice kept a huge share of the population out of most of the marketplace in a manner completely contrary to what a naive Economics 101 analysis would predict.