I believe that the American doctrine of employment-at-will, although it is tempered by several exceptions favoring employees, exposes working people to massive unfairness and often to the whims of unprincipled supervisors. Many employees who know of the doctrine believe that they have no rights. It is true that, absent membership in a class protected by discrimination law, an employee may have no legal claim against her employer. Employee handbooks often set forth policies that have no legal import. But it is my job to find a claim that fits the unfair treatment - if possible under existing law and its reasonable extension.

I analyze the facts presented to me by a potential client in the following way. First, I ask to see all documents relating to the job including any handwritten notes. I establish a detailed chronology. The initial significance of the chronology is the statute of limitations of the potential claims and the deadlines for filing complaints to discrimination and other agencies. I ask for witnesses, what they witnessed and whether they would agree to be interviewed. The focus of the interview depends primarily on what the potential claims appear to be. For example, if an employee moved his residence to take a new job and was then laid off or fired, the potential claims would be fraud, breach of contract and promissory estoppel requiring emphasis on the offer letter or the oral promise of employment. If the claim is discrimination the focus would be on the substantive ways in which employees not in the protected class (such as males, whites, or younger employees) have been given preferential treatment. If there is a potential defamation claim the precise words used and the context are the focus as well as whether the statements were false and whether the employer is protected by privilege.

In my experience there are two situations described in client interviews that recur again and again. Most frequently I hear of a serious illness or a workplace injury followed by a termination. Here the analysis can be very complex, requiring application of the Family and Medical Leave Act, the Americans with Disabilities Act and the possibility of a public policy wrongful discharge claim where the employee has been injured on the job, filed a worker's compensation claim or both. The second type of recurring situation is the new supervisor who demotes the employee or otherwise mistreats her. Employees often describe this situation as "harassment" or as a "hostile environment", but a hostile, harassing supervisor is not necessarily acting illegally. At its extreme, such conduct may be outrageous under common law or sexual harassment under discrimination law, but there is a wide range of supervisory conduct that is not sanctioned under current employment law standards.

The decision to litigate requires a careful evaluation not only of the strength of the potential claims but also of the resources, financial and emotional, likely to be called upon during the litigation. Some claims are appropriately settled before litigation, but many employers will not seriously negotiate until the employee demonstrates his determination by filing suit. Occasionally an employer will agree immediately to a mediation and settlement is reached in a matter of weeks. It is almost always wise for a terminated employee to apply for unemployment insurance benefits, not only to obtain income but also to test the employer?s resolve and version of the facts. Discrimination cases require filing to an agency specializing in such claims. Public employers have special complaint procedures, and private employers may also establish grievance processes. Collective bargaining agreements formalize the grievance process for union members who are entitled to fair representation by the union when the employer violates the agreement. Courts almost always require employees to use every available process prior to filing suit.

In the hundreds of lawsuits I have filed on behalf of employees, settlement has usually been reached between six and twelve months after the date of filing. Approximately forty have gone to trial, primarily in federal court. Most of these have been discrimination cases, and in my experience age discrimination is the claim most appealing to juries. Recently, claims of retaliation - when an employer retaliates against an employee who claims discrimination - have been unusually successful. I have myself litigated every kind of discrimination prohibited by statute, retaliation, breach of contract, public policy wrongful discharger, breach of the covenant of good faith and fair dealing, promissory estoppel, quantum meruit, fraud, defamation, false imprisonment, malicious prosecution, outrageous conduct (or intentional infliction of emotional distress), tortious interference, wage claims, and several federal statutory claims.