RETALIATORY DISCHARGE DAMAGES

Have been hotly prosecuting a retaliatory discharge case over the last several months, and was pleased when the case settled on Friday, July 9, 2005 for a healthy amount. When litigating retaliatory cases[i.e where employee fired for filing a Workers Comp claim] it is important that your understand your compensatory damages at the outset. The law provides that the discharged employee is entitled to those wages he would have earned if he had not been terminated. Couple of comments about that - first, have a firm understanding of what your client would have earned if he hadn't been fired. For example, let's assume the client gets hurt at work and files a Workers' Comp claim. Injury is pretty serious - there is no real dispute that your client won't be able to do what he had been doing before the injury. Assume also that he isn't qualified for any other position with employer. Shortly after he files the Comp claim, he gets fired. Your first reaction - "I'll sue them for retaliatory discharge!" Be careful - if your client wasn't physically capable of returning to that job[and no other positions available]you will be hard pressed to convince a trial judge that you should be allowed to submit evidence of those lost wages.

Change the scenario a bit: assume your client could have returned to that job, but employer fires him anyway. Don't let your client sit around at home waiting for that big verdict. Have your client keep a job log showing what potential employers he contacted and spoke with about a job. Juries are going to respond better when they can see that your client is out there making an effort, trying to get a job. That same jury won't embrace a former employee who sits at home watching Springer reruns waiting for his ship to come in.