Finding a Lawyer
There are three points we have to make before guiding you through the process of selecting a lawyer. Let’s be clear. We are not attorneys nor do we purport to be giving legal advice. Only licensed legal professionals — paralegals and attorneys — may do this.
- There is no law in any U.S. state specifically against workplace bullying. Lawyers must use existing laws. Therefore, no lawyers specialize in workplace bullying. There are few laws against cruelty toward workers in general. At work, nearly anything goes. There are stronger protections in place against abuse of animals in this country! America is an aggressive country and the legal attitude is that only “disadvantaged” people deserve protection.
- Filing a lawsuit leads to predictable retaliation, tremendous financial expense, and the risk of worsening the emotional damage caused by bullying. Despite some laws that prohibit retaliation for filing formal complaints, nearly all employers ignore the rule and retaliate. They hate being exposed. Attorneys are expensive. Chances are high that you will have to pay a significant retainer. Many bullied targets also report that being deposed is akin to “intellectual” rape. The anxieties triggered are strong and repeat the worst feelings experienced during the original bullying. If you were traumatized at work, and become involved in a lawsuit that requires you to repeat your story, frequently and to the opposing legal team, you risk being re-traumatized.
- The justice you seek to reverse the unfairness experienced in your bullying workplace can rarely be achieved in a courtroom. We know targets who have won more than $1 million dollars in a settlement and were still not satisfied. The bully still had his job and was telling lies years after the lawsuit. Fairness comes in small, unexpected ways — the bully is caught committing criminal activity and goes to jail, the bully is finally fired and you get to wave goodbye from the front office door.
- Do not be offended by a callous lawyer who has too little “bedside manner.” Lawyers, just like humans, differ in their style of telling you bad news. Knowing that there is no law should help you accept the judgment coming from attorneys. They may have to let you down. It’s just that some are better than others at doing this.
Types of Lawyers to Hire and to Avoid
Plaintiffs vs. Defense Attorneys
Most attorneys specializing in employment law represent employers. So, when calling attorneys’ offices, ask if the person represents primarily plaintiffs (the little guy or gal fighting the corporation) or mostly defends corporations and employers. There is an organization of attorneys who are primarily plaintiffs’ attorneys: NELA (National Employment Lawyers Association). NELA members must have 51% of their clients be individual plaintiffs. Consult the NELA website for members in your area.
Employment Law Specialists
You want a specialist in employment law — consult NELA or your local bar association for a list. The most popular area of employment law is civil rights. There are state and federal laws that make harassment and discrimination illegal. In 1/5 of bullying incidents, discrimination plays a role. Employment attorneys listen carefully to prospective clients for evidence of illegal discrimination. They want to hear that discrimination is present.
Discrimination can be based on gender, race, ethnicity, age, religion, veteran status, or disability. You must be a member of a “protected status group” to claim damages. But if your harasser is similarly protected, you could be out of luck. Same-gender or same-race bullying rarely qualifies as a violation of existing civil rights laws. Without discrimination, it is hard to get an attorney to take your case.
Bullying and the Law
The bad news is that bullying is much more prevalent than illegal forms of mistreatment. And most attorneys are deaf to cases that don’t have discrimination as part of the mistreatment. It’s not just their fault; blame the law.
Furthermore, if you claim discrimination in some states, you have to get permission from the federal EEOC before you can hire a private attorney. Sometimes it is mere formality, but it can delay your taking action. You have to tell the federal government that you have a discrimination complaint against the employer first, then get a “right to sue” letter. The EEOC has little interest in pursuing cases on behalf of individuals. You can expect to try mediation to resolve your claim. Furthermore, their cases may take years. Consult an attorney to find out if the EEOC requirement applies in your state.
Another type of bullying-related case that could be illegal is when the conduct is so outrageous, and the impact on you so severe, that you could claim “intentional infliction of emotional distress.” U.S. courts have nearly impossible standards to reach to win emotional distress claims. And your entire medical record for a lifetime can be reviewed by your employer when you sue for emotional distress.
There are some other, equally unsuccessful, legal avenues to pursue. Read related legal research by law professor David Yamada.
In short, U.S. employment law — either federal or state — is weak. Employers have the upper hand. If you have a union, you have more rights and can slow down the employer’s drive to fire you (if the union is supportive). Without a union, the doctrine of “employment at-will” prevails in the U.S. All rights belong to the employer, except in rare instances.
Conflict of Interest Avoidance
Whenever you call a legal office to schedule a preliminary appointment (sometimes complimentary) ask if anyone there represents the employer you are considering suing. When there is conflict of interest in the office, your side of the case will get scant attention.
On the other hand, you want to inquire if any attorney in a given office has experience fighting your bullying employer (search public court records to identify which attorneys have fought them in other cases — they will be more effective than a rookie who never dealt with that employer and its defense counsel before).
First of all, the best use of an attorney’s time is to rent them to write a demand letter to your bullying employer on your behalf. Only an attorney could or should threaten legal action. You should not threaten; you will scare no one and it will backfire. Attorneys are also ideal to help you negotiate favorable separation agreement terms. In all other matters, you are probably looking at a longer-term relationship with an attorney.
There are three payment methods:
- Contingency – in cases where the attorney accepts the case and does not charge her or his fee until a victory is won and a percentage of those winnings go to the attorney (you may have to pay the much smaller court costs as they are incurred.)
- Retainer – a large chunk of money is advanced and regular payments are expected as the case progresses
- Pay As You Go – hourly rates vary from $250 to $600 per hour.
It always makes sense to volunteer to help your case by doing as many small things as you can to keep costs low. For instance, you should not give your attorney voluminous documentation about your case. Shorten descriptions to save reading time. He or she can always ask for elaboration when it’s time.
Attorneys Who Pay Attention
This case is probably your first, and will hopefully be your only, case. Attorneys are fond of saying that they have many cases that need their attention. Therefore, recognize the following tradeoffs.
In a small firm (a solo private practice is the smallest possible), you will get attention, but that person may not have the resources/money to fight a big employer with many defense lawyers. Large firms may have the resources to fight the big employers, but their caseload is so high they will take weeks to return your phone calls or respond to e-mail questions.
When you are screening attorneys, ask about their caseload during the period anticipated to work on your case. Also, ask how they prefer to be contacted — phone, e-mail — and stick to what they request.
Remember that you are a consumer of a very expensive service. You have the right to shop around and to ask tough questions. Attorneys offended by your assertiveness will not be good legal partners for you. Demand experience, ask for their success rate, and ask for referrals from satisfied clients. Call the referrals before signing contracts.
Eventually, when there is an anti-bullying law in your state, certain attorneys will emerge as experts. After a law is in place, we can begin to train attorneys to better understand the phenomenon of bullying and the special type of clients who are bullied targets.
Until then, the above advice is the best we can offer.
Whether or not you eventually file a lawsuit can only be determined in concert with a licensed legal expert in your state or city.