By: Odell Law, PLC September 23, 2020

How Does An Employment Attorney Decide Whether To Take My Case?

Step 1: Initial Consultation And Review

Most employment law firms start the intake process with a free initial consultation. This can be done in-person, or over the phone. During this conversation, you’ll be asked a number of questions about your specific situation. You should not expect the attorney or a staff member to comment about the facts or to provide legal advice until they are officially retained to work on your case. This is mainly because attorneys are not allowed to give legal advice absent a formal attorney-client relationship.

Once the law firm has collected sufficient information, an attorney will review the facts of your case, using their knowledge of California and federal law. They will examine these facts from multiple angles to determine if there is a legal basis for filing a claim. Remember: just because your employer has treated you unfairly does not mean that you have a valid claim or can sue them. It is only when your employer has violated the law that you can file a lawsuit.

For Example:

Mary works as a sales representative at a high end store. She decides to dye her hair bright pink. Her boss tells her that her hair color doesn’t fit with the store’s image, and demotes her to working in the back of the store after she refuses to change it. She can’t earn a commission working in the back of the store, so this means that she is getting a drastic pay cut. In this situation, Mary’s boss may be acting like a jerk — but what he did probably was not illegal. Hair color is not protected under Title VII of the Civil Rights Act of 1964 or California’s Fair Employment and Housing Act (FEHA). Mary probably does not have a legal claim against her employer.

However, if the facts are changed slightly, Mary may be able to file a lawsuit against the company.

Consider This Scenario:

John also works as a sales representative at the same store. He dyes his hair bright green and gets a facial piercing — and his boss doesn’t say a word. In this situation, two employees, one male and one female, are acting in similar ways, yet only one was penalized for their conduct. Mary may have a claim for sex or gender discrimination under both Title VII and FEHA if she can show that the store is giving preferential treatment (or more leniency) to male employees.

This is where the experience and knowledge of an employment lawyer comes into play. While many employers treat their employees unfairly, their conduct isn’t necessarily illegal. A consultation with an employment law firm can help you understand the distinction between the two.

Step 2: Intake Form & Timeline

If the attorney decides to investigate your case on a deeper level, they will usually ask you to complete an intake form and/or complete a written timeline of events. These forms serve several purposes. They allow you to tell you story, nail down important dates, and ask questions that are designed to identify other possible legal issues.

Most people are not familiar with employment laws, or the specific laws that apply to their workplace. The intake form and timeline of events helps to draw out the kind of facts that will identify potential legal claims. As illustrated in the example above, a slight change of facts can mean a whole different analysis of a situation. That is why it is important to fully describe what happened both during the initial consultation and on any intake forms.

These forms also ask a lot of questions about timing, or when things happened. This is critical, because employment law cases — like most legal claims — are subject to a statute of limitations, which is a time limit for filing a complaint. If a particular event happened too long ago, then you won’t be able to move forward with the case.

You may think that some questions on the intake form are not applicable to your situation. For example, the form may ask you to list how and when you were paid. You may think that you can skip that question, because your issue is with being wrongfully terminated — not with your paycheck. But you may not realize that your employer has committed a wage and hour violation or failed to comply with California laws on when you are entitled to your last payment. Even if you don’t think that a question is relevant, make sure to answer it so your attorney can determine if there are any claims that you may not be aware of yet.

Similarly, there may be questions on the form that you think are too personal, such as your salary or whether you have gone to therapy. This information is necessary to determine the potential value of your case and/or what type of evidence might be discoverable during a future lawsuit. Damages in an employment law case are often based on the wages and benefits you have lost and those you will continue lose in the future. Additionally, if you have received therapy or treatment for distress arising from your termination, that may lead to an increased settlement or award for emotional distress. For these reasons, it is important to answer every question as best as you can, even if you believe that it isn’t relevant or that the information is too sensitive.

With respect to a “Timeline of Events” it is important to include all facts you can remember about each event leading up to your termination. This serves two purposes. First, it will better educate your employment lawyer to understand the complex dynamics of your case, which might lead to him or her spotting additional claims to assert. Second, this timeline (which is privileged since you are drafting it for your attorney) will serve as an excellent “refresher” for your brain if and when the employer’s attorneys take your deposition as part of your case. At a deposition, you will be asked detailed questions about the facts and events leading up to your termination. This deposition, however, might no take place until well over a year after your termination, which is why your Timeline will come in handy to refresh your memory with regard to dates, names of witnesses and other critical facts.

Step 3: Sign A Retainer Agreement

If the attorney believes that you have a viable claim, then they will likely ask you to sign a retainer agreement (also known as a “contingency fee” agreement) that sets-out the details of their representation. You should review the agreement carefully, looking for items like the fee arrangement, who is responsible for costs, and the scope of the engagement.

Most all employment attorneys represent their clients on a “pure contingency fee” basis, meaning the attorney does not recover his or her attorneys fees unless and until they can obtain a recovery for your case. As such, the attorney’s fees are “contingent” on the outcome of your case and will usually be a percentage of the gross recovery. Attorneys can charge different percentages depending on their geographic area, experience, past results and the specific type of case or claim you might have.

If the attorney decides not to take you on as a client, you may understandably be upset. Keep in mind that there are many factors that go into this type of decision, some of which include:

Whether a violation of federal or state law has occurred and the type of claim involved;
If the statute of limitations has passed;
Whether you have signed an arbitration agreement;
If you were able to get a new job right away after being fired (i.e. mitigation of your damages);
The size of your employer and amount of resources they have to fight or settle a claim;
If a live jury would find you credible as a witness;
The venue (location) where your lawsuit must be filed;
If you have worked with another attorney on the same claim; etc.

These issues all go to the heart of whether a claim is viable. Remember that even though it can be difficult to learn that you don’t have a case, it is better to get this response early on in the process, before you have invested time, resources, and energy into a claim that probably won’t go anywhere.