include “future pecuniary losses, emo- tional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life and other nonpecuniary losses.” Tort counts, such as abusive discharge and intentional infliction of emotional distress may allow for similar elements of damages, without the $300,000 cap. One under-utilized element of dam-
ages is the effect a termination may have on an employee’s pension. For example, in a recent case I settled, the plaintiff was terminated from a local law enforcement agency. She was entitled to a life-time pension upon reaching 20 years of service. When she was fired five years short of her vesting date, it became apparent that her largest economic claim was for that future lost pension. Ulti- mately, it was worth hiring an actuary who provided a report estimating that the present value of her lost pension was in excess of $400,000. Numbers like that tend to bring a defendant into the range of reasonableness. Under the facts of my case I could not include a claim for a disability pension benefits. However, imagine a case where an em- ployee is terminated and later becomes disabled. Some employers have disability
insurance or pensions that pay life-time benefits of two-thirds of the employee’s final compensation -- tax free. If the facts show that, but for the wrongful decision of the employer, the employee would have been eligible for a disability pension, the economic damages could be in the seven figure range. Moreover the spreadsheet would have to take into account the effect of the non-taxability of disability pensions. The calculations can become quite complex and may require an expert. See Szedlock v. Tenet, 61 Fed.Appx. 88 (4th
Cir. 2003). Social security payments may be
included in your damages if you lay a proper foundation – after all, social security is the working man’s pension. Claims under the Fair Labor Standards
Act (FLSA) and Age Discrimination in Employment Act (ADEA) allow for liquidated damages -- double damages. Wage payment claims under Maryland law permit up to treble damages. Interest on economic damages can
mount over time. With current interest rates, the amounts may not be impres- sive but, for the bother of including a few more columns on your spreadsheet, you may increase your damages by
thousands of dollars. One tip to make interest easier to collect is to obtain discovery from the defendant regarding interest rates the defendant is earning or paying. That discovery can later be used to establish the reasonableness of the interest rate you utilize when calculat- ing damages – without the necessity of hiring an expert. In some cases, compensatory time,
sick pay and vacation pay can constitute a substantial claim. This is particularly true for public employees. Some public employees are entitled to one full year of sick pay and can accrue hundreds of hours of vacation pay. When dealing with more highly paid
employees, you may be able to recover for stock options that were not ripe when the employee was fired. Unfortunately recent events in the stock market have probably undermined most such claims. Many cases involve a claim for breach
of contract. Although not nearly as sexy as punitive or compensatory damages, they tend to be easier to prove. Don’t hesitate to include a claim for breach of contract whenever possible and calculate damages under that body of law. The adage “justice delayed is justice
Plaintiff’s Estimate of Economic Damages Medical
Prior
Insurance paid by
Dates
Nov-03 Dec-03 Jan-04 Feb-04 Mar-04 Apr-04 May-04 Jun-04 Jul-04
Aug-04 Sep-04 Oct-04 Nov-04
Wages $0
$0 $0 $0 $0
$2,000 $2,000 $2,000 $2,000 $2,000 $2,000 $2,000 $2,000
$115 $115 $115 $115 $115 $115
$110 $110 $110 $110 $110 $110 $110 $110
employer OPCs
Total $0
$0 $0 $0 $0
$2,110 $2,110 $2,225 $2,225 $2,225 $2,225 $2,225 $2,225
Difference: $31,029 44 Trial Reporter Winter 2009
Salary with expected raises
$3,000 $3,000 $3,000 $3,000 $3,000 $3,000 $3,000 $3,000 $3,206 $3,206 $3,206 $3,206 $3,206
$17,570
Medical
Insurance paid by
employer $415
$415 $415 $415 $415 $415 $415 $415 $430 $430 $430 $430 $430
OPCs $228
$228 $228 $228 $228 $228 $228 $228 $255 $255 $255 $255 $255
Total
$3,643 $3,643 $3,643 $3,643 $3,643 $3,643 $3,643 $3,643 $3,891 $3,891 $3,891 $3,891 $3,891
$48,599
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48 |
Page 49 |
Page 50 |
Page 51 |
Page 52 |
Page 53 |
Page 54 |
Page 55 |
Page 56 |
Page 57 |
Page 58 |
Page 59 |
Page 60 |
Page 61 |
Page 62 |
Page 63 |
Page 64 |
Page 65 |
Page 66 |
Page 67 |
Page 68 |
Page 69 |
Page 70 |
Page 71 |
Page 72 |
Page 73 |
Page 74 |
Page 75 |
Page 76