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Wrongful Termination: How to Respond Appropriately to Your Employer and Secure a Severance Payment

Our employment litigation practice receives inquiries from employees seeking representation or consultation from locations across New York City, Long Island and New Jersey.   There is no real pattern to where our clients come from.  There is one notable exception; a significant number of our employment discrimination cases involving wrongful terminations – really all wrongful termination matters – come from local Brooklyn neighborhoods such as Park Slope, Cobble Hill, Carroll Gardens, Brooklyn Heights, Fort Greene, Bedford Stuyvesant, and Gowanus.  This trend could be because of our strong local reputation, but I suspect it is for reasons that relate to the nature of discriminatory and wrongful termination claims.  More often than not, and unlike employees suffering from other forms of unlawful workplace conduct, wrongfully terminated employees go home and immediately call the nearest lawyer.  Hence the above-mentioned trend.

I am happy to handle these sad calls, but my experience suggests that doing a few things before calling a lawyer can greatly increase your chances of walking away with a guarantee of severance and other benefits.  First, gather every piece of paper your employer provided to you and organize them before you call the lawyer.  The documents you unwittingly carried out of your office, or that you have stashed in your house, are evidence.  Often, their is information in them which you can use to your advantage in the event of litigation and which can be leveraged in a severance negotiation.  One of the first things an employment lawyer will ask you is, “Do you have any documents to support what you are telling me?”  If you are not organized and if you do not have the documents ready to go, there’s no way for the lawyer to determine whether or not your claim is strong, weak or somewhere in between.  Second, you should organize yourself – write down a list of those employees and witnesses who are likely to support what you have to day, as well as the names and addresses of medical professionals, etc. who can corroborate the distress you have suffered.  If you are alleging disparate (unequal) treatment based on your protected class, you should identify comparators in the non-protected majority who were treated better than you were, or paid better than you, for no good reason.  Having this information at the tip of your tongue will prevent the smack-in-the-head moment faced by employment lawyers when clients belatedly disclose vital evidence and facts.

Finally, understand that wrongful termination based on unfair treatment, but not motivated by your employer’s dislike of your identity as a member of protected class of minorities, is not illegal.  However, if you call an employment lawyer to discuss wrongful termination, and if you are prepared with the information needed for the lawyer to assess your claims, there is a decent chance the lawyer will identify other illegal conduct your employer has engaged in which you can use to leverage a severance negotiation.  Remember, as a victim of unlawful termination, your new job is vindicating yourself and making sure you are compensated fairly for the harm done.  It requires work, but like working for a fair employer, the system will often reward organization and diligence.

Christopher Davis is an experienced employment litigator specializing in class actions, overtime wage recovery, discrimination, whistleblower retaliation, and Wall Street bonus disputes. Before entering private practice, Mr. Davis served as an Assistant District Attorney in the Manhattan District Attorney's Office where he prosecuted violent crimes as a member of the Sex Crimes Unit.

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