Every situation is unique. These are general answers - they are not a replacement for a true, individualized
consultation with an attorney. To have your specific questions answered, please schedule a consultation.
ABOUT THE PROCESS
What is a Contingency Fee?
A contingency fee is just what it sounds like - a fee that is paid contingent upon money being awarded. If no money is obtained by the lawyer in the case, then the client does not have to pay an attorney's fee. If a monetary award is obtained, either through settlement or verdict, the lawyer gets a percentage of the total recovery.
In most employment cases, the contingency fee is 50% of the total amount recovered. In some cases, it may be less expensive for you to pay your attorney by-the-hour. You should discuss all of payment options with your attorney before signing up for representation.
Oklahoma is a "Right to Work" state - what does that mean?
This is a commonly misunderstood phrase. In the vast majority of employment disputes, it has no application at all. A "right-to-work" law prohibits agreements between labor unions and employers that require employees' membership, payment of union dues, or fees as a condition of employment. Right-to-work laws do not provide a general guarantee of employment to people seeking work. Rather, they prevent employers from excluding non-union workers. Right-to-work laws exist in 24 U.S. states, mostly in the southern and western United States. Business interests have lobbied extensively to pass right-to-work legislation, since it tends to result in smaller levels of union representation for employees.
Do you give free consultations?
No. We charge $50-$150 for our new case evaluations. For more in-depth consultations that include strategy planning and document review (ex: a severance or noncompete agreement), we charge $250-$350. This is because we take the time to give you a truly well-rounded evaluation. At Schwenn Law, we won't just tell you whether a law has been broken, or rush you into a lawsuit. We give you all the information and tools you need to make an informed decision for yourself - no pressure or sales pitches. We'll discuss the costs and benefits associated with pursuing legal action, what approach is in your best interest, and what you can expect if you choose to pursue a claim. We devote the utmost attention and care to our existing clients, and we want to do the same for you. If you don't have a case, we'll make sure you understand why, and discuss what other options might be available to you.
Oklahoma is a "Right to Work" state - what does that mean?
Employment that is "at-will" can be terminated at any time, for any legal reason. Most employment relationships are "at will" - the arrangement gives employees and employers flexibility to end the relationship without contractual limitations. A small number of employees have contracts stating that they can only be fired "for cause" - these are generally the only individuals who are not employed "at will." Even "at will" employment, however, cannot be terminated for an illegal reason. If an employer fires someone because of his or her protected traits (race, age, disability, gender, religion, etc), or in retaliation for protected conduct, it is still illegal - even if the employment was "at will."
Do I have a right to see my personnel file?
How much does it cost to file a lawsuit?
It costs $232.14 plus service to file a lawsuit in the state courts in Oklahoma County. It costs $400 to file a lawsuit in federal court. You should also expect to pay $75-$100 per defendant for formal service of the lawsuit. Formal service is required, although in some cases the defendant may agree to waive it. In addition to these court fees, you may also be responsible for deposition costs, mediation fees, and other fixed costs. These costs are paid directly to the vendor (the court, the process server, the court reporter, or the mediator). They are separate and apart from the "attorney fee," which is the amount you agree to pay your attorney for his or her time, efforts, and skill. In some cases, you will be billed for your attorneys' time by-the-hour. In most cases, however, you will not pay your attorney directly. Instead, his or her fee will be taken as a percentage of the total recovery. This is called a "contingency fee." Schwenn Law offers hourly fee, contingency fee, and hybrid arrangements, as well as flat fees for certain services. Be sure to discuss your options with your attorney before signing up for representation.
How much can I recover if I win my case?
This varies greatly depending on the type of case, and how strong of a case you have. In general, the maximum that you can recover in an employment case is a combination of: (1) lost wages - i.e., the amount that you would have earned had you not been fired or disciplined, from the date of the loss until the date of trial, minus the benefits and wages you've earned during that time period; (2) in rare cases, front pay - i.e., lost wages that you will continue to incur past the date of trial; and (3) in some cases, a jury may award an extra amount (known as "compensatory" and "punitive" damages). This extra amount is capped, depending on how many employees the company has: $50,000 if fewer than 100 employees, $100,000 if 100-200 employees, $200,000 if 201-500 employees, and $300,000 if more than 500 employees.
How long does it take to pursue an employment case?
This also varies greatly depending on the type of case. In most cases, you will need to file with the EEOC before you can file a lawsuit. The EEOC keeps your file for up to 6 months (sometimes longer, if we agree - which is rare). After the EEOC releases your file, they will give you a "Notice of Right to Sue," which allows you to move forward in court. Once you file in court, it will be 1 to 2 years before you get to trial. Employment litigation is a long process. From the date of termination or other wrongful act, until the date of trial, it's often over 2 years. Most cases, however, are resolved before the trial date. At Schwenn Law, we aim to resolve all cases as quickly as possible - often before a lawsuit is ever filed - so that you can move on with your life.
Unless you are a government/public employee, the answer is "no." Oklahoma law does not require an employer to allow an employee to access his or her personnel file. Furthermore, there are very few requirements as to what must be included in a personnel file. So even if you have access, there's no requirement that write-ups, complaints, or other documents must be included. Public employees may request copies of their personnel file documents under the Public Information Act or FOIA.
What makes a termination "wrongful"?
Employers are allowed to make bad, unfair, and illogical decisions. Even if you are fired for something you didn't do, the termination is not necessarily "wrongful" under the law. Employment actions recognized as "wrongful" under the law are very limited. What makes an action "wrongful" or illegal is the motivation behind it - i.e., the reason WHY an employer fires, disciplines, or otherwise treats an employee differently. Some reasons are perfectly legal (ex: preference for family members, personality differences, financial concerns). Other reasons are not legal (ex: race, national origin, color, age, gender, disability, or religion, complaints about unlawful acts, use of health insurance benefits, etc). If you want to know whether your termination was illegal, please contact us.
Doesn't my employer have to tell me why I'm being fired?
No. There is no rule or law that requires employers to disclose this information. Most employers do disclose it, because it raises a red flag when no reason is given. They are not, however, required to do so.
What kind of evidence do I need to support a claim?
Remember that employment actions are only illegal if they were made because of someone's protected traits or acts. We have to prove that the employer's motivation was wrongful - that's often a very difficult task. People do not typically come right out and admit their wrongful motivations. Instead, they will assert an alternative, neutral reason for the employment action. You will need a good amount of "circumstantial evidence" that suggests the asserted, neutral reason is false, and that the employer was really motivated by a different, illegal factor. Witnesses besides yourself are important, as are documents that back up your version of the facts. When it's just your word (or your suspicions) against the employer's, you are unlikely to prevail.
I was fired over a false accusation - do I have a case?
Not necessarily. Employers are allowed to make bad decisions, and even to be wrong about the reasons they fire someone. It's not illegal unless the false accusation was made to cover up a different, illegal reason (such as retaliation, age discrimination, or the like).
Will my lawsuit show up on the internet?
Usually, yes - the lawsuit will show up somewhere on the internet, and will also show up in employer background checks.
I won my unemployment hearing - will I also win my lawsuit?
Not necessarily. To win an unemployment hearing, you only need to show that you were fired for "reasons other than misconduct." In a lawsuit, you have to prove much more. You must show that you were fired for an illegal reason. For example - if you were laid off as part of a reduction in force, or because the company was losing money, you would probably prevail on your unemployment hearing. This is because you were let go "for reasons other than misconduct." Those reasons, however, are perfectly legal reasons to fire someone, and would not give you a good claim for wrongful termination.
Aren't non-competes unenforceable?
Many of our clients believe this to be true. It's not. A properly drafted non-compete is enforceable. For many years, courts adhered to a strict view that resulted in many noncompetes being rejected. This approach has softened, however, and courts are now more willing to consider and enforce noncompetes. The law in this area has become more friendly to employers in recent years, so don't make any assumptions. Click the "Schedule Now" tab, and put (in the message) "Non-Compete Review and Strategy."
What can my old employer do if I violate my non-compete?
The enforcement tools available to employers are vast. They can obtain a "temporary restraining order" that prevents you from working at your current or prospective new job, or even an award of money damages against you. They often sue, or threaten to sue, your new employer as well - often resulting in the loss of your new job. Do not assume that you can get away with even a minor violation. Click the "Schedule Now" tab, and put (in the message) "Non-Compete Review and Strategy."
How can I fight a non-compete?
Fortunately, there are options available - but you need to contact an attorney quickly. Employers can obtain a "temporary restraining order," or "TRO" (see above) almost immediately, and sometimes without you even being present at the court hearing. We can fight TRO's, but only if we've been retained in time. We can argue that the non-compete is unenforceable, or that it's overbroad and should be reduced in scope. Often, the best result for employees and employers is to negotiate a less restrictive agreement. For example, an employee may agree to stay away from certain clients in exchance for being permitted to work for a competitor. Prospectively, you should always make new or potential employers aware of the fact that you have a non-compete agreement. We are experienced in this area, and can help you understand your options. Click the "Schedule Now" tab.
What is the deadline for me to pursue my claim?
There are different legal deadlines set by various State and Federal laws for each type of claim that you might pursue.
If you agreed to arbitrate claims with your employer, however, you cannot rely on these legal deadlines and need to check your employer’s arbitration policies and arbitration agreement carefully for your deadline to file a demand for arbitration.
Some of the most common legal deadlines to be aware of are:
- Discrimination, Harassment, Accommodation, and Related Retaliation Claims Under Oklahoma State Law = 180 days after the discriminatory, retaliatory, or harassing event(s) to file a Charge of Discrimination with the Oklahoma (See https://www.oag.ok.gov/civil-rights-enforcement ) and a lawsuit must be filed either within 90 days after the issues a right-to-sue notice or years of the discriminatory, retaliatory, or harassing events, whichever is earlier.
- Discrimination, Harassment, Accommodation, and Related Claims Under Federal Law = 300 days after the discriminatory, retaliatory, or harassing event(s) to file a Charge of Discrimination with the Equal Employment Opportunity Commission (See www.eeoc.gov/field/dallas/charge.cfm) and a lawsuit must be filed 90 days after the EEOC issues a right-to-sue notice.
- Family Medical Leave Act (“FMLA”) Violations = 2 Years, and, in some cases up to 3 years if the violation was “willful”
- Overtime and Minimum Wage (“FLSA”) Violations = 2 Years, and, in some cases up to 3 years if the violation was “willful”
- Federal Equal Pay Act Claims = 2 Years, and, in some cases up to 3 years if the violation was “willful”
**Note: there are many other State and Federal laws and deadlines that might apply to your specific situation, and exceptions to some of the deadlines listed above. You will need to consult with an attorney to determine your exact deadline, and should always work as quickly as possible to find an attorney to represent you.
If you would like one of our attorneys to provide you an assessment of the laws and deadlines applicable in your particular case, you can schedule a low-cost telephone or in-person “Case Evaluation” consultation to obtain a case-specific assessment of your deadlines.
I never signed a non-compete, so I have nothing to worry about, right?
Not necessarily. Even without a physical signature, an employer might be able to enforce a non-compete if you indicated your assent otherwise. This would include, for example, electronic assent, through check-boxes or typing in your initials. Furthermore, many employees have other restrictions, such as non-disclosure and non-solicitation, and all employees have a duty not to unfairly compete or use an employer's trade secrets. Not sure what you can and can't do? Contact Us.