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I Know I’m Suing The Company, But I’d Like My Job Back Please

 

This week, something unprecedented happened which reminded me of why I’m no longer the true believer employment attorney that I used to be: a terminated employee who was suing his employer wanted his job back. In all of my years doing plaintiffs' work, there has been only one time that a client wanted his job back. In that case, the employee was truly fired in error. He was terminated for an impermissible reason (taking an emergency leave for his sick mother), and he was a model employee who had years and years of rave performance reviews with his employer. I got him his job back, and some attorneys’ fees to boot, as the opposing counsel felt so badly about what happened. That case was a rare breath of fresh air in plaintiffs’ employment cases where clients are often so angry and so polarized in their perspective that the last thing they want to do is return to the employer who wronged them.

So I guess I should’ve been happy about this latest development, right? Well, I wasn't. Mostly, I was perplexed as to why my client, who had been complaining about his employer 24/7, would want to be reemployed. His reasoning was that a settlement was a single and insignificant one-time payment, whereas re-employment would mean years of being able to support his family in the lifestyle to which they’d grown accustomed. Lost on him was my argument that he was trying to have his cake and eat it too.

Frankly, the client was right. So many plaintiffs these days think they’ll get rich by filing an employment lawsuit when they are wrongfully terminated, only to come face-to-face with the inadequacies of the legal system. Not only do they not get the money they seek, but they also don’t feel justice has been served. I often say to my employee-side clients that the law is supposed to make you whole “more or less,” and mostly it’s less. Getting your job back not only means you’d lose far less economically, but it also means you might work through all the anger, resentment, and lack of self-identity you face when you lose it in the first place.

Yet being re-employed after suing your employer is a bit crazy, isn't it? Most employers would never agree to allow a litigating employee to seek re-employment, and most employees can’t think of anything they’d like less than to work for the “SOB”s that fired them.

The coup de grace in all these events, however, was the sympathetic feeling I had for the employer, who was put off by the former employee’s unwillingness to relinquish his job. These days, everyone has it tough, and virtually no company is skating by. Paying an employee a litigation settlement with one hand, and doling out a salary with the other, did seem a tad unfair to me. I’m not sure what happened to my liberalista agenda since I left the public defender’s office, but I do at times find Corporate America to get the short end of the stick. I guess this explains why I’m one of the few employment lawyers I know who represents both plaintiffs and defendants. As I explained at a talk last night, at times the corporation is actually the underdog, and sometimes the employee has a righteous grievance.

I think it also explains why the employment work that generates the most fire in my belly is preventative. Work that keeps lawsuits from becoming necessary in the first place is my true passion. This includes the work I do auditing the workplace, drafting handbooks, conducting sexual harassment trainings, and, perhaps most importantly, conducting workplace investigations. These things keep the workforce running more smoothly and help root out problems before they escalate into legal conflict. I’m just not the bra-burning true believer that I used to be. I’ll take a prophylactic truce to a war based on ideals any day.