May 24 2023
Josh Goodbaum: Hi, Amanda.
Amanda DeMatteis: Hi, Josh. What are we going to talk about today?
Goodbaum: I want to talk about an employment law client that I have met – I know you have met – and it’s a really practical person. They come to you, and they say, “I’ve got this difficult employment law situation.” They explain the facts of this situation – it’s very compelling – and then they say, “So what’s it worth?”
They want to know what their employment law case is worth. What do you say to the employment law client who just explained their situation and said, “Tell me what my case is worth”?
DeMatteis: I don’t know if I’ve met a potential client that hasn’t asked me that question. And obviously, it’s a critical question that people want to know at the outset, and there’s a nice long answer. But it’s good for people to know, so let’s break it down.
Most of our laws that protect employees in Connecticut, and federally, have three areas of damages: economic damages, non-economic damages, and a lot of them are fee-shifting, which means if you win, the other side – the employer – would pay for your attorney’s fees. So you have these three buckets of potential damages in most employment cases, not every single one. But let’s talk about kind of your run-of-the-mill discrimination case or retaliation case.
So first, we have economic damages. Well, what are economic damages? It’s a math equation. Say you were earning $100,000 at a particular job. If you weren’t working for that job for one year, because that employer broke one of the state or federal laws that protects employees, your economic damages are $100,000, right? $100,000 worth of earnings.
But from that amount, we need to subtract any in-term earnings — think unemployment benefits, think interim earnings from a subsequent job. So, say you got $10,000 in unemployment benefits and you got $40,000 in interim earnings from a job that you received after your termination or whatever qualifying event that led to your lawsuit. Now you have $100,000 in damages which is reduced by $50,000 of interim earnings, so your economic loss after that one year is $50,000. Simple math, right?
So people will say, “Well then Amanda, I’m just not gonna get another job because if I don’t work for two years, then my damages are gonna be $200,000.” No, you can’t do that either. You have what’s called a “duty to mitigate your damages,” which means you have to go out and you have to look for comparable employment. That doesn’t mean any employment; that doesn’t mean you take the very first job that anybody on the street offers you. It means comparable employment. If you’re a doctor, it’s another job in your chosen profession. If you are working in a restaurant, maybe it’s a job working in another restaurant. If you’re a nurse, maybe it’s another nursing job. It’s comparable employment.
But you can’t just sit around and wait for that economic damage to just tick up, tick up, tick up. Why? Because a judge way down the road, if you get a verdict in your favor, will say, “Hey, wait a minute, you didn’t meet your obligation to mitigate your damages – to go out and find subsequent employment. Therefore, we’re gonna have to knock that number down from X to Y.” Okay?
So economic damages, your first bucket. Duty to mitigate your damages. Simple math equation: “I would have made X, I instead made Y, my economic damages are blank.”
Non-economic damages, bucket number two, much harder. There’s no mathematical equation. So, how do we possibly value non-economic damages? Well, it’s like emotional distress, right? Think pain and suffering in the personal injury context. Only in the employment context, it’s all taxable income.
So how do we substantiate non-economic damages? Typically, through medical records. So think about it like this. If you break your foot, you’re gonna go to the doctor. Everyone thinks, “Jeez, if you have a broken foot, you shouldn’t walk around on it. You should go out and you should get yourself some help.”
It’s the same exact thing when it comes to non-economic damages. If something is bothering you so significantly — maybe you were subjected to sexual harassment, race discrimination, pregnancy discrimination, terrible retaliation, whatever it may be — if we are alleging that that conduct was terrible and caused anxiety, sleeplessness, depression, whatever it may be, if it’s bad enough, a jury of your peers is going to expect that you went out and you sought treatment for it. So what helps us substantiate a non-economic damage amount is medical treatment. Do what is best for your life. What is ultimately best for your life is going to have the added benefit of being what’s best for your case.
Not a mathematical equation. When we get in front of a jury, we ask them to award “fair, just, and reasonable compensation,” right? So, it’s not as simple as that, “I was earning X and then I earned Y, and here’s my damages.” It’s much more difficult; very, very fact specific; depends upon the egregiousness of the conduct that we are alleging the employer participated in.
Harder, bucket three, attorney’s fees. If you win and it’s a fee-shifting statute that we can find your employer was responsible for violating, then maybe, and only maybe, if you go all the way to a verdict and you win that case and you are awarded a judgment in your favor, then we could apply to try to recover your attorney’s fees that you’ve incurred as a result of the harm that your employer has caused for violating one of our state or federal laws or a number of them that protect employees.
Lots of information. As always super, super fact-specific. It is not a one-size-fits-all question, but that’s a quick overview on the damages that you may in fact be entitled to if you have an employment case in Connecticut.
Goodbaum: And of course, that assumes that you’re gonna win your case, that it’s a strong case. And often in that first conversation, we don’t know that yet. We know your version of events, but we’ve been doing this long enough to know that your employer is likely to have a different perspective. And we don’t presume that a jury is gonna agree with them and not with you or vice versa.
So there’s a question of understanding the facts and understanding the evidence. And even if your home run looks like X, what’s the actual value of your case? Well, it’s some percentage of X. It’s never 100% of X. And so it’s very difficult to answer that question right off the bat of “what’s your case worth?” So, please have patience with us.
DeMatteis: It’s nearly impossible and remember – Josh, it’s a great point – we never get to damages until we prove, it is our burden to prove liability. So no matter what your damages are — they could be $10 million — if you don’t prove liability first, you’re not entitled to anything.
Goodbaum: Thanks so much, Amanda.
DeMatteis: See you next time.