• Marc Kroop

Maximizing The Settlement Value Of Your Wrongful Termination Claim

Even in the most egregious wrongful termination and discrimination cases, employers still have a significant opportunity to reduce liability and avoid paying a large settlement amount to an aggrieved employee. This is true, even when it is clear that the employee is going to prevail in their claim of wrongful termination or discrimination.

In an egregious case, where the employer's liability is clear, the employer can make what is known as an "unconditional offer of reinstatement" to the employee. Such an offer, places an employee, who has suffered egregious discrimination, harassment, abuse or illegal working conditions, in a very difficult situation.

If the employee accepts the unconditional offer of reinstatement, the employee is free to return to work and still pursue their employment claim against the employer. However, the fact that the employee is now gainfully employed, reduces, significantly, the economic value of the employee's claim. In addition, it places the employee in the unbearably difficult position of having to pursue claims against a current employer, while still working with co-workers and supervisors that are not supportive of the employee's claims. This can create even more animosity and tension at work.

The outlook is not much better for an employee who rejects an unconditional offer of reinstatement. In that case, the employee may still pursue their claim, but will be doing so, while losing income on a daily basis and facing an employer in a lawsuit that can now argue successfully that damages are severely limited. The employer can assert that any economic losses suffered by the employee, going forward, are the fault of the employee, who refused to return to work. Once an employee's economic damages are cut off, due to a rejected unconditional offer of reinstatement (usually at a time very early in the case), the economic risk of going forward with the case is substantially increased for the employee.

In many cases, we have been successful in maximizing our clients' recoveries even after an unconditional offer of reinstatement is made. In some cases, our clients may immediately find alternative work or they may receive a note from their physician allowing for time off work on disability that alleviates the immediate need to deal with the employer's unconditional offer of reinstatement.

However, where our client has not found a new job or is not disabled from working, but is instead, stressed, anxious, depressed or afraid to return to work, we have, in those cases, utilized other means to determine the legitimacy of the employer's unconditional offer of reinstatement. In those cases, we have still be able to maximize a negotiated result for our employee client.

For example, in a recent case we handled, our client was fired due to her request for a medical leave of absence. The termination was in writing and falsely stated that our client had no right to the medical leave. It was a simple case, until we received an unconditional offer of reinstatement, within 30 days of our client's termination.

At that time, rather than risk damaging her case by rejecting the offer outright, we encouraged our client to let us explore her return to work with the employer and find out if it was in fact a legitimate offer. Our client accepted our advice and allowed us to proceed, even though she had no actual intention of returning to work in a job where she was mistreated.

We wrote the employer's counsel and requested a meeting to discuss a number of accommodations for our client including (1) additional time off work on an intermittent basis; (2) modified start times to allow our client to adjust to her new medication; (3) assurances regarding no further discrimination; (4) complete separation from the supervisor who had been harassing her on the basis of her disability.

By sending those requests for accommodation, we were able to determine that the offer of reinstatement made by the employer was not a real offer. The employer had not provided our client with the initial accommodation she requested and had even less interest in providing the future accommodations for her that we were requesting.

In this case, the employer immediately agreed to mediate the case, prior to our client's potential return to work. We were able to resolve the case for $175,000.00 within a a few short months. The settlement was an excellent result considering that our failure to resolve the case may have necessitated our client damaging her case by rejecting an offer to return to work or her actual return to her former position, in a very hostile work environment, in order to continue to pursue her claims.

Had we simply rejected the unconditional offer of reinstatement, as was our client's initial desire, it is doubtful we could have even achieved a $50,000.00 result. There would have been no damages to speak of based upon the three and a half weeks she had been out of work prior to the employer's unconditional offer of reinstatement. In mediation, that fact would have significantly undercut any claim our client had for damages and limited her recovery. Our strategy effectively delayed the employer's reinstatement offer until after we could determine if the case was resolvable. Once we resolved the case, reinstatement was no longer an issue.

When you are seeking to maximize the value of a settlement, it is helpful to have experienced counsel who can help you navigate your employer's defenses. Kroop Labor Law's managing attorney, Marc G. Kroop, has successfully resolved over 500 employment cases in his legal career. Kroop Labor Law provides you with a direct line to speak with Mr. Kroop (925) 989-8264. Alternatively you may email us at info@krooplaborlaw.com We will immediately respond to your employment concerns in writing.


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