December 13, 2019 • By Dennis Beaver
“Mike” was an experienced, well-paid plastic surgery practice manager in Atlanta and came across an ad in a trade magazine looking for someone with his background to work in Southern California for a large, multi-office medical group doing the same type of cosmetic procedures as his current employer.
“My wife and her family are from that area, so this would be a great opportunity,” he explained. Within days contract discussions with the CEO began, talks went very well, the couple were flown to California, visited the satellite offices, and with a series of emails, agreed on the basic terms of an employment contract which included a $15,000 bonus after six months.
“I made clear that I had to have the signed employment contract before moving to California.”
No Contract But Moves Out and Begins Working – Then Things Go South
Despite never receiving the written contract, Mike moved his family to California and assumed functions as the group’s practice manager.
“I was always paid on time, but they refused the two weeks paid time off we had agreed on, and was never given the promised company credit card, so I had to use my own for company expenses, which they reluctantly reimbursed.
“Repeatedly and in a friendly tone of voice, I asked the CEO to please prepare and give me the employment contract, but he, ‘would think about it.’”
Mike worked for the group “about ten months, when they began mass terminations, and a total of 35 people were let go.
“I didn’t want to rock the boat and get fired, so I kept quiet about the contract or the other things. Then, this past Monday, following an office meeting, I was terminated for a completely false reason.
“I want to sue them for breach of contract!” he yelled. “I don’t want these people to treat anyone else like they have treated me! This is a matter of principle! I am looking for a lawyer to take my case.”
Does Mike Have a Strong Breach of Contract Case?
Assuming that the facts are as what Mike described, how strong a case is it, and moreover, is this something that most lawyers would jump at the chance to take on?
While anyone can sue for just about anything, winning a breach of an employment contract is quite another matter. You need to look at the downside, first, and with Mike on the phone, I gave him my initial evaluation which wasn’t encouraging. When boiled down to their basic elements, we have an employee who:
(1) Voluntarily waived his stated requirement for a written contract prior to starting work.
(2) Continued working without the contract.
(3) Voluntarily used his own credit card instead of refusing to make any purchases.
(4) Was a living version of Odysseus and the Cyclops, and the famous line, “In fact, I like you so much that I’ll eat you last.”
(5) Is surprised at being treated just like all the other employees.
But the one, major question above all others, boils down to this:
“What are his damages? What is he really out?”
To answer those questions, I needed to know how difficult it would be for him to get another job at a similar salary, and asked him that. His answer? “By tomorrow I can have a virtually identical position, even at more pay.”
“So, then only real loss is your $15,000 bonus, right?” He agreed, but wasn’t overly happy when I told him that the Labor Commissioner’s Office would be his best–and free–bet to go after those funds.
“But it’s principle!” he repeated. “I want to see those jerks squirm in court. That’s what I want – to make them suffer and realize that the arrogant, cruel way they treat people can’t go on!”
Cost and Damage to His Own Reputation
“Mike, to recover $15,000 you could wind up paying several times that in attorney fees which would likely not be recoverable,” I pointed out.
“But far more dangerous to you personally, is what filing such a suit could mean for your future—your reputation–and for that reason alone, most good lawyers—who care less about their own billable hours but more about what’s in the client’s best interest—they would try to counsel you out of pursuing the matter. Can you guess why I say this?”
He was blinded by seeking revenge and had no idea what I was talking about.
“Mike, it is your reputation. File suit and a background search will reveal a guy who is potential trouble for an employer. Is it worth it?”
He “thanked” me by slamming down the phone.
Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.