Today's post is by our associate, Jay Kucia.
So you’re thinking of suing an employer? No matter the merits of your case, there is something you should know before you file the complaint. In a lawsuit, you may have to share private information. You need to know what may have to be disclosed, and how it can be protected. There are things your lawyer can do to control public access to that information - especially the most private information.
Let me take a step back and explain how we get here. When you file a civil lawsuit in our court system there is a process called discovery. This is the part of the case where the attorneys for both parties try to find all the information they will need to pursue their arguments. Since employers will usually know the facts of the case, they will spend a lot of their time in discovery trying to dig up anything they can to discredit the workers that sue them or protect themselves from paying all that they might be liable for. This can be almost anything, but let’s break down a few of the most common things that catch workers off guard.
- Your name and what happened - Your name is usually part of the public record of your case, and your case will potentially show up in internet searches.
- Work history - It might make sense that your employer would need to know your work and disciplinary history with them, but this is rarely the extent of what they get to know. The defendant may ask for your entire work history.
- Income - Courts regularly allow employers to discover any and all income the worker makes. The idea here is that the employer shouldn’t have to pay as much if the worker did not look for other employment, and interim earnings are often subtracted from damages. This means that your employer will seek to learn about your subsequent employment and employment searches.
- Legal history - Your employer can also learn about your legal history including past lawsuits that you’ve filed and any criminal history you may have. To me, personally, this is one of the most ridiculous parts of discovery. After all, what does your fifteen-year-old DUI have to do with whether your employer fired you because of your race? But, as my Momma says, my opinion and $0.25 won’t even get you a Coke anymore. The fact is that the courts will let your employer know this information.
- Medical history - This is the one that most frequently throws workers for a loop. If you bring an action for physical or mental pain and suffering, your employer will be allowed to learn about your medical history. To illustrate how far this can go, in one case, we had a client who’s unlawful termination caused her serious anxiety and depression. Because we wanted to win her compensation for that pain, her former employer was allowed to obtain her psychological records going back almost twenty years.
If you’re reading this and doubting your decision to sue your employer, don’t be afraid. I am only telling you this so that you’ll know what to expect. There are two more facts that should give you confidence if you believe in your case.
First, not all the information that is found in discovery can be used in the litigation. For example, that fifteen-year-old DUI would almost certainly not be admissible at trial or into the public record because it is an old conviction that has nothing to do with the employee’s honesty or integrity. A lot of the information obtained in discovery will never go any further than the opposing attorney’s eyes.
Second, an experienced employment law attorney can help you through this process and help keep your private information private. Whether it's filing a "John Doe" motion to keep your identity secret, filing motions to seal medical records, or objecting to the production of inappropriate discovery, there are a variety of tools available to protect your confidential information. Most civil attorneys (including us at Joel F. Dillard, P.A.) spend a great deal of their time doing just that.
I hope this rundown has helped you understand what to expect during a lawsuit. My goal here is not to discourage anyone but to make sure that workers who have been wronged are not surprised by their employer’s maneuvers. If you think you may have an employment law case, please give our firm a call. We’d be honored to help you through discovery and the entire litigation process.
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