[This is Part I of an excerpt from Janice Harper’s new book, Mobbed! A Survival Guide to Adult Bullying and Mobbing. Harper advises against suing — but if you find yourself in that situation she offers advice that may well help you understand what’s happening to you. Part II will continue with how to prepare. These are just excerpts, her book goes into much greater detail on internal & external investigations, coping tactics, new ways to understand what’s happening to you and much much more. Let us know if it helped you… ]

Lawyers and Lawsuits

The minute you file a lawsuit against an employer, you’ve already lost.  It’s that bad.  But before it even gets to that point, you have to find a lawyer.  And before you start looking, know this: your employer will not be intimidated by your lawyer.  Your employer will lawyer up and let their lawyers take over.  And that means war.

Once a lawyer contacts your employer on your behalf, all employees will immediately be alerted not to speak about your case to you or anybody.  And that means that they are not to talk to you about acting as your witness or providing any statements.  It means if they haven’t already shunned you, they will start doing so.  And it means that your employer will begin talking with your coworkers about the testimony they have against you—this is the time when all employees are expected to team up with the boss and demonstrate that they are team players, loyal to the organization.  Those “small betrayals” that came earlier in the casual meetings with your boss and coworkers, will now blossom into full-scale attacks against you.

Your coworkers will also be alerted that they are to turn over any and all emails to you, from you, or about you, as well as any other correspondence you have shared.  And as I’ve said previously, not only is that very inconvenient, but it exposes their own gossip and badmouthing to their bosses.  They will be furious with you—and the more what they have to turn over to the bosses will embarrass them, the greater their aggression against you will be—to not only punish you but to mitigate any damage they might suffer from whatever the contents of those emails reveal.  The fastest way to mend a damaged relationship with the boss you once called a fascist asshole in an email, is to help that boss gun down the person that you sent it to—the one now suing your employer.

So it’s usually not a good idea to hire a lawyer just to scare the employer into behaving.  That’s likely to backfire.  But there are still good reasons to consult an attorney.  An attorney can tell you whether you have a case against your employer or not.  In many instances, employees who have been wronged and treated badly are stunned to discover they have no legal cause of action against their employer.  It’s not against the law for your employer to treat you like crap, scream at you, insult you publicly, and heap a ton of work on you at the last minute.  Just as long as your employer treats everybody badly, they’re protected.

They’re also protected if they treat only people with red hair badly, or only people who dress in polyester.  Just as long as they do not discriminate based on membership in a protected class, they’re protected.

But they may still be sued if they breach your contract or otherwise violate civil or federal laws.  There are a number of civil causes of action which may pertain to your case, and they include not just breach of contract, but slander, libel, civil conspiracy and others.  The only effective way you can know if you have a civil claim against your employer, is to consult one or more attorneys—which means finding an attorney, presenting your case to the attorney, and considering what steps you would like the attorney to take.

First, be sure you look for an employment lawyer who specializes in representing plaintiffs.  Check your local (county and state) bar associations for lawyer referrals, and/or Google “employment lawyers.”  Then review the website.  Read the “About Us” section.  If they say they do defense work, it means they represent the employers.  They defend against cases like yours.  While they might sometimes take a plaintiff’s case, chances are they won’t be interested in yours because it won’t be as lucrative as those hourly fees, and if they take your case, they can never represent your employer because they’d have a conflict of interest.  An employment lawyer specializing in defense does not want to burn bridges with any employers in the community.  So find an employment lawyer who represents plaintiffs.

Second, read over the attorney bio’s.  Where did they go to law school?  What types of cases have they tried?  What kinds of settlements have they received (if posted).  Do they take pro bono work?  That means service for free, and many attorneys devote a certain number of hours each year to pro bono work.  Unless you are utterly broke and you have a compelling case, however, chances are you’ll have to tap the savings account, pull out your credit card, or take out a home equity loan to pay for legal advice.

Do not assume your lawyer will take your case for a contingency fee.  Attorneys only take cases on contingency if they are willing to go to court.  No attorney worth a damn is going to agree to a contingency fee on an out-of-court settlement that does not involve a formal lawsuit.  To get to the point of a hefty settlement, they will have to file a lawsuit, and as you’ll learn in a few minutes, once filed, what follows is pretty much out of your control and drags on for ages.  So just know, if you consult an attorney about a workplace issue, you are going to have to pay some money up front, at least in the early stages.

Third, go to the county and state bar association websites and check if there have been any professional actions taken against the attorney, such as a suspension, rebuke, or disbarment.  It’s not likely that there have been, but it’s always possible.  Google the attorneys name and see what comes up.  Avoid attorneys who have been sued multiple times, faced ethics inquiries, or are notorious ambulance chasers.

Finally, many attorneys now request that you submit your queries via their website.  They tell you to concisely state the facts of your case and an attorney will get back to you.  Be careful!  At this point, you do not know whether they have a conflict of interest or not.  The bigger your employer and/or the smaller your town, the greater the chances that someone in their firm has worked for the employer, is married to someone who works for them, or has represented some of their employees who are now witnesses against you.  Until you know for certain that there is no conflict of interest, anything you tell a potential attorney, however “confidential” it should be, can potentially get back to them.

So just write, “I work for Company X and have a potential discrimination action against them.  I do not want to discuss the facts of the case over the internet.  Do you have a conflict of interest that would prevent you from representing me?  If not, may I consult with you by phone or in person about my case?”  If you call the law office, present your case in the same basic way—don’t reveal the facts of your case or the strategies you are contemplating over the telephone, until you are confident there is no conflict of interest.

If the attorneys do have a potential conflict of interest, you have revealed very little.  If they don’t, the attorney(s) will know that you are rational, cautious, and have a potential case.  They will probably agree to meet with you—but before you do, be sure you are clear on whether or not the consultation is free (it usually is, though the meeting will be from ½ to 1 hour and no more), or if there is a fee.

When you meet with the attorney, do not bring all your evidence.  Do not ramble.  Do not rage.  Even if doing all three is what comes naturally—you are most likely devastated, furious and scared if you’ve gotten that far, and if you are being mobbed, you’re all the more scared and mad and wounded.  But you must be prepared. [End of Part I]

Related articles

• Bullying, Mobbing, & The Role Of Shame (huffingtonpost.com)
• Animal Rites: What Animal Behavior Teaches Us About Bullying (psychologytoday.com)
• Bullied or Mobbed at Work? Read The New Survival Guide (bullyinworkplace.com)