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FAQ's
Options For Hiring Our Firm
Cases that we take on contingency have the following characteristics: • Clear liability – for instance, an email or writing demonstrating discrimination, or other liability. • Jaw-dropping conduct by the employer or school – something well beyond the difficulties, even serious difficulties that people face. For an employment case, this might include significant sexual molestation, or a boss that says, “I generally don’t like pregnant women, so, you’re fired.” • Clean work history – though not a requirement, most employment clients that we take on contingency have no prior history of problems at work. • Significant damages – this means that you have lost your job, and you made a significant wage. And/or you suffer significant emotional distress as documented by health-care professional Even if your case meets some or all of the above descriptions doesn’t guarantee we will offer contingency, as it also depends on the firm’s availability and current caseload.
The contingency fee arrangement is one in which attorneys are paid a percentage of what you recover. Usually it’s 35-40% of the total recovery, but this can vary. Employment and civil rights cases offer another possibility – fee shifting contingency. In these cases, the attorneys are paid by the employer at the end of the case. The reason that this exists in employment cases is that sometimes the amount owed to you would not support the filing of a lawsuit. For instance, if you are a store clerk and have an overtime claim worth $10,000, it doesn’t make sense to file a lawsuit that will cost $40,000, or more. But these can still be important cases. So Congress provided that an employer must pay those costs if it breaks the law and loses in court. Thankfully, the reverse is not true; you will not be required to pay your employer’s attorney fees. The Spiggle Law Firm contingency fee arrangement allows us to recover the larger of the two amounts – either 40% of the total recover or our attorney fees as paid by the defendant – but not both. The benefit here is obvious, you only get paid if you recover something. The downside is that you may end up paying more – much more – than you would if paying an hourly or flat rate. Still, some clients prefer it, or that is their only option.
A flat-fee rate is pretty much what it sounds like – you pay a flat rate for the service, no matter how long or short the representation takes. This allows you to control the risk. It is guaranteed that you will only pay a certain amount for the service, no matter how much work it takes us. Of course, you may end up paying more per hour worked if your case wraps up quickly. But if that happens, it means you got a quick win. It’s actually not quite so simple (of course not). At least, for once, this complication benefits you! You don’t actually pay one fee. You deposit one fee and the firm withdraws as attorneys complete certain phases. For instance, the firm will withdraw a portion when it completes the demand letter, another if you file with the EEOC, and so on. That way you only pay for a particular phase – or if you resolve your case.
We don’t take cases unless, in our estimation, you will get a settlement that will more than compensate you for the fees that you pay us. Indeed, under many employment laws, your employer is required to pay most, if not all, of your expense if you win at trial. (The “fee shifting” in employment and civil rights cases is different from almost all other forms of litigation. Win your contract dispute or divorce, and you still have to pay your own lawyer.) Still, it does happen that people end up underwater. They spend a lot in attorney fees and lose, or they end up ahead, but not enough to make the whole ordeal worth it. Where that line is – what is valuable to you – varies from person to person. For some, it’s a straight cost-benefit exercise. You spend some to get some. If you spend a lot, and get a little, it’s a loss. For others, intangibles are more important. It’s worth it to see their weasel of a boss be forced to sit and answer questions for hours in a deposition. Where you fall in that spectrum is something only you can know.
To retain the firm at an hourly rate, you are required to pay a retainer of $6,000—$3,000 upfront, and $3,000 to be paid 30 days after executing the retainer. The firm will put these funds into a trust account, where it will remain yours until work is performed. Attorneys will bill against this at an hourly rate. Mr. Spiggle’s hourly rate is $750. Other attorneys at the firm will charge between $325 and $560. Once the retainer drops below $500, you will be required to replenish the retainer until the representation ends. If there is money remaining in the trust account at the end of the representation, the firm will return it to you. You can end the representation at any time and for any reason. You will be provided monthly invoices detailing work performed and any funds withdrawn.
An hourly retainer is the traditional model for legal services. Attorneys do the work and you pay for it with an hourly rate. The advantage of this model is that you only pay for the work performed. The disadvantage is that the amount of work needed may vary. If it takes us a letter and a few phone calls to get your matter resolved, you win under an hourly rate because the work will be minimal, and so will your bill. But it’s equally likely that it will take more work than that to get you to the finish line. We might even have to file a lawsuit. If that’s the case, your bills will be higher, and irregular. One month there may be little work done, so you’ll get a small bill. The next month, however, it may take the work of two attorneys to handle your case. Then the invoice for that month will be large.
Hostile Work Environments
Generally, failing to report such harassment may seriously impair an employee’s ability to pursue legal action against an employer. The U.S. Supreme Court has ruled that a defendant can have an affirmative defense against a harassment claim if an employee “unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise.” Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S. Ct. 2257 (1998) The Ellerth ruling encouraged employers to put in place policies forbidding harassment and procedures for filing complaints, investigating complaints and discipline for those found to have harassed others. Depending on the facts of the situation, failing to report harassment may not necessarily be fatal to a legal claim against the employer, but it is something that ideally should be done.
Many employees who fail to report harassment fear they will lose their job, they won’t be taken seriously, they will be blamed, or some form of retaliation. Harassment victims need to choose to either continue to tolerate the situation or take steps to end it, which may result in negative consequences. It’s illegal to retaliate against an employee for complaining of illegal harassment. If harassment is reported, and the employee suffers consequences as a result, that employee not only may have a legal claim for harassment but retaliation as well. An employer should not tolerate harassment of its employees. By reporting harassment, the employee should not only help him or herself by ending the problem, but also help the organization comply with the law, enforce its own policies, and hopefully prevent others from being subjected to similar behavior.
It depends on your employer. If you feel you are being harassed, one way to try to resolve the problem is to tell the harasser to stop. If you are uncomfortable confronting the harasser, you should not endure harassment or try to resolve the matter yourself. Your employer should have other ways for you to report the harassing conduct. You may be able to report the incidents to your employer’s human resources department, your manager’s manager, or a manager of a different department. If employees suffering through harassment don’t complain, the harasser may interpret this as a sign the behavior is not a problem or that the victim is not offended.
Anti-discrimination laws are not a civility code. These laws do not prohibit simple teasing, offhand comments or isolated incidents that are not serious. Instead, the conduct must be so objectively offensive as to change the conditions of the person’s employment whether as a result of a tangible employment action or is sufficiently severe or pervasive enough to create a hostile work environment.
Harassment need not committed by an employee’s supervisor or a member of management to be illegal. In addition to actions and conduct by management, a co-worker or non-employee (such as a contractor, vendor or guest) could potentially create a hostile work environment for an employee. A person making a claim of hostile work environment harassment need only be affected by the harassing conduct, not necessarily the employee to whom the conduct is directed.
Actions and words that may create sexual hostile environment harassment are only limited by the sick imagination of the harasser, including:
- Staring in a sexually suggestive manner,
- Making offensive remarks about looks, clothing or the employee’s body,
- Inappropriate physical touching that make an employee feel uncomfortable, such as patting, pinching or intentional brushing against another’s body,
- Sexual or lewd jokes, inappropriate pictures, posters and gestures, and
- Sending, forwarding or soliciting sexually suggestive letters, notes, emails or images.
Other actions which may result in hostile environment harassment, not based on sex, include:
- Use of derogatory words, phrases, epithets,
- Use of emails, gestures, pictures or drawings which would offend a particular group,
- Comments about an individual’s skin color or other characteristics,
- Making disparaging remarks about an individual,
- Negative comments about an employee’s religious beliefs (or absence of religious beliefs),
- Negative, stereotyping comments regarding an employee’s protected basis, and
- Derogatory or intimidating references to an employee’s mental or physical impairment.
The unlawful harassing conduct must be unwelcome and based on the victim’s protected basis. The conduct must be:
- Subjectively abusive to the person affected, and
- Objectively severe and pervasive enough to create a work environment that a reasonable person would find hostile or abusive.
Whether the harassing conduct is severe or pervasive is determined on a case-by-case basis in light of,
- How often it happens,
- The severity,
- Whether the conduct was physically threatening or humiliating, not just an offensive comment,
- Whether the conduct unreasonably interfered with work performance,
- The impact on the employee’s psychological well-being, and
- If the harasser was a superior within the organization.
No, the harassment protections include unwelcome verbal or physical conduct based on the employee’s protected basis, such as the person’s,
- Race,
- Color,
- Religion,
- Sex,
- Whether or not the harassment is of a sexual nature, and
- It can involve people of the same sex.
- National origin,
- Age (40 and over under federal law, any age under Virginia law),
- Disability, or
- Retaliation
- If an employee complains about, opposes or cooperates in the investigation or litigation of an illegal practice, those actions result in the person being legally protected from negative consequences due to those actions.
Hostile work environment harassment refers to an unstable or dangerous workplace created when an employee suffers repeated workplace harassment. The harassing conduct unreasonably interferes with the victim’s work performance or creates what a reasonable person would find an objectively hostile or offensive work environment. If the conduct adversely affects the performance or well-being of the targeted employee, or any reasonable person in the workplace, the conduct may be illegal.
- The harassment may not directly result in discipline or lost opportunities but does make it difficult for the victim to work because of constant ridicule, belittling comments, teasing or sexual come-ons.
- The harassment becomes so debilitating that the victim fears going to work because of the oppressive, hostile or intimidating atmosphere created by the aggressors.
- It may reach the point where the victim is suffering psychologically and manifests stress related physical problems.
Severance Agreement
Consider having an attorney familiar with employment law review the document. Your employer almost certainly had its attorney draft this to be favorable to the company. Most severance agreements require you to waive almost any rights you have to bring an action against the company, even if you learn later of wrongdoing. Employment law is complicated. It is entirely possible for you to have been wronged without realizing it. It will cost you between $300 and $500 to have an attorney spend an hour with you to review the document and discuss options. This can be money well spent, and save you a costly mistake.
Most reputable employers won’t do that. In fact, they may recommend that you see an attorney. Regardless, do not let them pressure you into signing. Ask for at least a couple of days to review it.
Trials
A lawsuit is started once a formal legal document called a “complaint” is filed in court and then served, usually by hand, on the defendant. Writing letters to your employer or negotiating a severance agreement does not involve litigation and does not create a public record.
No. Although we are trained trial attorneys, many of our cases are resolved simply by contacting the employer.
Spiggle Law attorneys handle matters in all courts in Virginia (primarily Northern Virginia), Washington, D.C., and North Carolina. For North Carolina cases, we often partner with the firm Harris, Sarratt & Hodges, which is located in Raleigh.
Yes. Tom Spiggle is an experienced trial lawyer who is not afraid to take your case to trial if necessary. From day one junior attorneys at the firm are trained to litigate and take cases to trial.
Yes. You can talk to an intake specialist or submit information online to be reviewed by an attorney free of charge. After this review you will receive an email from the firm indicating whether yours is an issue we can potentially help with. If yours is an issue we can potentially help with, you will receive an invitation for an in-depth Strategy Conference for $195, which includes an hour with an attorney and review of key documents. The Spiggle Law Firm invites you to review the no-cost written material provided by the firm. The Employment Law Guide for Women, (much of it applies to men, too!) which you can obtain by visiting the Tools and Resources section of our website. Other resources available include:
- The firm’s employment law blog
- Tom Spiggle’s Podcast “I Got Fired”
- Mr. Spiggle’s book, “You’re Pregnant? You’re Fired!” which you can learn about here.
That depends on the nature of your cases. It could take from $2,000 to $100,000, or more.
For cases that will involve significant legal work, such as, those going to trial, we will make every effort to work out a payment arrangement that works for you.
Again, it depends. Negotiating a severance can take as little as a few weeks. Cases that go all the way to trial can take a year or more.
Unless it is a criminal case, you will rarely have to go to court. In some instances, you will only have to go to court if there is a trial. Of course, you can choose to go to court for any matter involving your case.
Unless it is a criminal trial, you will usually only talk to the judge in open court if there is a trial.
Wrongful Termination
A victim of wrongful discharge in Virginia can take legal action against:
- A company/employer that fires him in violation of public policy.
- An employee with managerial or supervisory responsibility if he was the one who violated the public policy and if he also participated in firing the worker.
The rules in Virginia say that an employee can sue for wrongful discharge if:
- The employee exercises a right to do something (or not do something) that a statute specifically entitled the employee to do, and because of that, the employee is fired.
- The employee acts pursuant to a public policy clearly announced by a statute, the employee is a member of the class of people the statute is designed to protect, and then, the employer terminates the employee for acting in accordance with that public policy.
- The employee refused to commit a crime and is fired for it.
Employees in “At Will” positions can be fired or can leave their job at any time, and for almost any reason. While at will employment is the standard throughout the U.S., some states have imposed more limitations on an employer’s ability to fire employees. Some states, like Virginia, have notoriously limited exceptions to the at will rules. The Virginia Supreme Court did recognize one possible category of exceptions in an important case in 1985 called Bowman v. State Bank. In Bowman, the Court held that an employer could be legally liable for firing employees for reasons that violated public policy. This limited exception gives employees the right to sue if employers fire them for refusing to be part of criminal activities or for exercising rights protected by law. After Bowman, the courts have been reluctant to expand the situations where employees can sue for wrongful discharge although some recent cases have added additional protections for workers. Because state laws on wrongful discharge can evolve, it is often helpful to speak with an experienced attorney if you believe your employer wrongfully discharged you.
Yes. There are laws and statutes at both the state and federal level protecting against sexual harassment and assault, as well as protecting against assault and battery.
Most likely. Depending on your state and locality, you may have claims of negligent or intentional infliction of emotional distress.
Yes. Numerous laws and regulations guarantee protections for reporting wrongdoing and illegal activity on the job. These laws often also protect employees that refuse to commit illegal activity when asked by their employer.
- The False Claims Act
- Qui Tam
- Whistleblower Law
- There are over one-hundred such laws on the federal level alone. For instance, under OSHA and other individual federal laws.
- There are a number of state-level whistleblower laws
- The Whistleblower Section of this website
- Sarbanes-Oxley (SOX) – reporting improper behavior by publicly traded companies.
You may be experiencing retaliation for:
- telling HR or my boss that I thought I was being discriminated against on the basis of
- Religion
- Sex
- Race
- National Origin
- telling HR or my boss that I thought someone else at work was being discriminated against
- asking for workplace changes because I have a disability
- having a disability
- for telling my boss or HR about page or wage violations
- taking FMLA leave
- telling my boss that I was discriminated against on the basis of age
The Retaliation Section of this website has more information on your rights regarding retaliation.
You may be protected under The Employment Income Retirement Security Act. (ERISA) This act is also useful when there are issues with COBRA which cause you to lose your health insurance.
You may be protected against defamation (spoken) or libel (written) claims against you. These are state law claims, so need to search the law in your state. These are also state level common or “judge made” law, so you may have to rely on court cases rather than a statute.
Depending on the context, employees may be protected by The National Labor Relations Act. Employees of the US Government are also guaranteed protection of Freedom of Speech under the First Amendment of the Constitution.
- You may be protected if you:
Can I be fired for taking time off or asking for leave to care for myself or a family member? Taking medical leave can be protected in many circumstances. See the following:- are experiencing problems at work or have been fired because I am stressed out, sleep deprived and or am depressed.
- are experiencing problems at work because of a mental or physical disability, even if that disability is temporary
- are experiencing problems at work because I asked for workplace changes – like a modified workspace – due to a physical or mental disability, even if that disability is temporary
- *Americans with Disabilities Act (ADA) for each of these
- The Disability Section of this website
- Family Medical Leave Act (FMLA)
- U.S. Department of Labor (www.dol.gov)
- *Americans with Disabilities Act
- If the family member is disabled; search for ADA association clause
- The FMLA and Leave Discrimination Section of this website
You may be protected under these laws:
- *Title VII of the Civil Rights Act of 1964
- ADA
- FMLA
Yes. Learn your rights with these sources:
- Fair Labor Standard Act
- Equal Pay Act
- State wage-and-hour laws
- United States Department of Labor (www.dol.gov)
- The Equal Pay section of this website
In cases of pregnancy discrimination, you can learn your rights from the following sources:
- *Title VII of the Civil Rights Act of 1964
- State anti-discrimination law; try searching for “[your state or county] human rights act”
- For instance the D.C. Human Rights Act
- This Pregnancy Discrimination section of this website
- The Caregiver Discrimination section of this website
The left column lists common employment problems, and the right column lists the applicable federal laws. It also highlights common state law employment issues, as well as federal agencies that regulate that area of the law. *A star beside a law means that you must file an administrative action – like with the EEOC – before you file in court. Note that more than one may apply to your situation. Use these to conduct your own research or to help you find the right attorney to help you. I’ve been treated differently because of my:
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Except for 1981 Action, all must be filed here first Equal Employment Opportunity Commission(www.eeoc.gov)
You have been wrongfully terminated if you were fired because:
- you are pregnant
- of your color
- of your gender
- of your religion
- you opposed illegal practices in the workplace
- you have a disability
- because you complained about working conditions
There are a number of other reasons that are illegal under federal or state law which may give you a legal case against your company, but judges generally will not call this “wrongful termination.” Instead, a judge will talk about your termination in a more specific way. Taking the examples above, the judge will say you were fired in violation of:
- The Pregnancy Discrimination Act
- Title VII of the Civil Rights Act of 1964 on the basis of race
- Title VII of the Civil Rights Act of 1964 on the basis of sex
- Title VII of the Civil Rights Act of 1964 on the basis of religion
- The False Claims Act (or any of the over 100 other whistleblower statutes)
- The Americans With Disabilities Act
These examples do not include the many state and local laws that apply to the same conduct. For instance, an employer in the District of Columbia that fires a woman because she is pregnant may be in violation of both the federal Pregnancy Discrimination Act and the District of Columbia Human Rights Act.
Unemployment
The Equal Employment Opportunity Commission (EEOC) is one of the most important governing bodies when it comes to employment law. Learn about EEOC filing requirements, deadlines, and the role the agency could play in your case.
Three Things You Can Do Right Now
- Make sure to file before your time limit runs out. Depending on where you live, you either have 180 or 300 days. Government agencies have even shorter deadlines.
- The EEOC can help you file a charge. It is free and you need not have a lawyer. You should file a charge before your deadline passes, even if you are not sure that you want to sue.
- Don’t rely exclusively on the EEOC. The agency can be slow and often denies claims. That doesn’t mean that the agency never helps, sometimes it does. And you should cooperate fully with your investigator. Just don’t rely exclusively on it for help. Continue to look for a lawyer.
A lawyer can help you prepare for the hearing and achieve a positive outcome, or pursue appeal remedies should you lose.
Three Things You Can Do Right Now
- You should apply. Unemployment hearings are not difficult and many times your employer either won’t contest your right to benefits, or, if it does, it won’t bother to send someone to the hearing.
- If you lose, appeal. In many instances you’ll get a more experienced hearing officer at the appeal level. And appealing is often as easy as writing a short letter.
- You can hire an attorney to help you or even just to help you prepare for the hearing so that you can handle it yourself.
Performance Improvement Plan
A performance improvement plan (PIP) can be the first step to losing your job. It is completely your employer’s choice to put you on a plan, so you don’t have much choice about it. If this happens to you, I highly recommend that you consult someone with employment law experience. There are things that you can do that may prevent you from being fired, or, at the very least, maximize your chance to get a good severance agreement.