Category Archives: SLAPP

An Emotional Distress Claim Should Not Be Undertaken Lightly

Wrongful Termination Attorney Emotional DistressThe case of Mallard v. Progressive Choice Ins. Co. beautifully illustrates a point I discuss with all clients who want to make an emotional distress claim, and provides a good stepping-off point to discuss the reality of damages in a wrongful termination case.

Sometimes I will get a call from a potential client within minutes after they were fired by their employer. They want to sue for wrongful termination and they want to sue NOW!

But what is the employee going to sue for? Union workers and government employees will sometimes sue to get their jobs back, but 99% of the time when someone calls me wanting to sue for wrongful termination, they want to sue for damages. They understand that even if they could sue to get their job back, it would not be a very pleasant environment to work. They want money.

So let’s look at that. Fifteen minutes after an employee has been fired, what damages have they suffered? When I ask the caller that question, they answer, “I was fired!” Yes, but what are your damages? “I was fired!”

Rather than to go on all day in this fashion, I explain. Damages are something you can put a dollar sign in front of. Being fired is not a damage, although obviously it can CAUSE damages. But 15 minutes after a termination, an ethical attorney should explain that there are no real damages at that point.

Let’s do the math. If the employee was making, say, $25 an hour, and they were fired two hours before their shift ended, then the damages at that moment they are calling me are $50, at least in terms of lost wages. But let’s carry it out a little. Let’s assume for our hypothetical that the employee had seen the writing on the wall and had already sent out some feelers for a new job before the axe fell. She makes a few calls, and a week later she starts a new job with the same title that pays $30 per hour with better benefits. What are her damages then?

Well, she went a week without being paid, so she lost $1,000 in wages. If the termination was wrongful, her old employer should at least cut her a check for $1,000 to reimburse her for the lost wages, right? But wait a second. Because of the termination, she will make $10,000 more for the year than if she hadn’t been fired, because now she is making $5 per hour more. Fair’s fair. If you thought her employer should pay her for what she lost as a result of the termination, then it is only fair that she should pay to the employer the money she gained as a result of the termination, right?

I’m speaking tongue in cheek of course, but I want you to think in terms of the real damage to our terminated employee. Last week I discussed all the damages that flow from a wrongful termination, and if you look at that list, assuming our employee did not suffer any setback to her career track, then there are no significant damages a week after termination.

“But what about emotional distress damages?”, the caller asks. That’s a valid question. If your employer wrongfully terminated you, you might have suffered some emotional distress damages, and those are recoverable on a wrongful termination claim. But an ethical attorney then needs to explain what you open yourself up to when you claim emotional distress.

Which leads us to today’s case review. Continue reading