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Employment Litigation Remedies Toolkit
Practical Law Toolkit w-003-4894 (Approx. 17 pages)
Employment Litigation Remedies Toolkit
by Practical Law Labor & Employment
| Maintained • USA (National/Federal) |
Resources to help counsel evaluate, prove, and defend against damage claims in employment litigation cases, including claims under Title VII of the Civil Rights Act of 1964 (Title VII), the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), and the Fair Labor Standards Act (FLSA), and restrictive covenant, health and safety, and whistleblower claims. This Toolkit includes resources addressing potential remedies, such as back pay, front pay, compensatory damages, punitive damages, liquidated damages, and injunctive relief, and remedies issues arising at all stages of litigation, including early case evaluation, discovery, motion practice, trial, and settlement. For state-specific resources, see State Employment Litigation and Arbitration Toolkit.
Understanding the available remedies in any employment-related claim is crucial both to employers' and employees' counsel at every stage of litigation. The potential amount and likelihood of an employer's liability for damages and penalties inevitably guides counsel's decisions about:
- Client intake and fee agreements (see Engagement (Retainer) Letter: Practical Considerations Checklist).
- Early case evaluation (see Employment Litigation: Case Assessment Checklist).
- Initial and responsive pleadings (see Responding to a Complaint Toolkit).
- Determining the scope and appropriate means of discovery (see Employment Litigation Discovery Toolkit).
- Motion practice, including motions for summary judgment (see, for example, Drafting an Employer's Summary Judgment Brief in a Title VII Single Plaintiff Employment Discrimination Case Checklist and Summary Judgment in Federal Court Toolkit.
- Trial preparation and strategy (see Trial Toolkit (Federal)).
- Mediation and settlement (see Settling Employment Disputes Toolkit).
The remedies available to a plaintiff vary based on the specific allegations in the case. For example, depending on the claims alleged, remedies in employment discrimination and wage and hour cases may include:
- Other injunctive and equitable relief, such as reinstatement.
- Compensatory and punitive damages (for intentional discrimination) under certain statutes, with statutory caps for claims under:
- Title VII of the Civil Rights Act of 1964 (Title VII);
- the Americans with Disabilities Act (ADA); and
- Title II of the Genetic Information Nondiscrimination Act (GINA).
- Liquidated damages (but generally not punitive damages) under:
- the Age Discrimination in Employment Act (ADEA);
- the Fair Labor Standards Act (FLSA);
- the Equal Pay Act (EPA);
- the Family and Medical Leave Act (FMLA); and
- Attorneys' fees and costs.
- Interest.
In restrictive covenant cases, plaintiffs may seek a combination of federal and state law remedies, such as:
- Compensatory damages (both under common law and statutory claims).
- Remedies available under the federal Defend Trade Secrets Act (DTSA), including:
- exemplary damages;
- attorneys' fees; and
- seizure orders.
- Related tort remedies, such as punitive damages, based on state law claims for:
- misappropriation of trade secrets;
- breach of fiduciary duty or duty of loyalty;
- unfair competition; and
- interference with contractual relations.
Employers may be liable for substantial administrative penalties for violations of the Occupational Safety and Health Act (OSH Act).
Successful whistleblowers also have various remedies available under federal and state law. For example, employers face substantial exposure retaliating against employees who engage in protected conduct under:
- The Sarbanes-Oxley Act (SOX).
- The Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank).
- The OSH Act.
- Section 7623 of the Internal Revenue Code and the Taxpayer First Act.
- Applicable state law.
This Toolkit provides practitioners with many resources to assist with analyzing and defending against a variety of damage claims in employment litigation cases.
For recent case law and other legal developments, see the latest trackers in the Labor, Employment, and Immigration Trackers Toolkit.
State Q&A Tools
For other state-specific resources, see State Employment Litigation and Arbitration Toolkit.
Legal Updates
For recent developments, see Labor, Employment, and Immigration Trackers Toolkit.
Related Toolkits
For state-specific resources, see State Employment Litigation and Arbitration Toolkit.