Fighting Back: How to approach filing a lawsuit

If you’ve either been laid off or fired, and you believe that your employer has not handled the matter legally, it’s time for you to take action! From the date you have received your termination letter, you only have three weeks to file a motion in the courts. After three weeks, regardless of the evidence you have - that statute of limitations will come into play.

When choosing to challenge the termination, you have two options for how to approach the matter.

• Option 1: go straight into the process of filing a claim in court,

• Option 2: approaching the employer to find a settlement before lawyers are involved. In case there is no resolution, you can then file a claim in court if no resolution is found.

The decision to do this is entirely up to you - but there can be certain situations where one option is better than the other.

Option 1: Filing Immediately

If the company has been aggressive in the way they have handled your case or have perhaps already been employing intimidation tactics, it is likely better to directly file the claim. This ensures they know you are not afraid and it will stand firm against them. The benefit of this is that from a strategic perspective, you have the element of surprise on your hand.

Option 2: Reaching out before filing a lawsuit

In case you believe your employer might be more willing to find a middle ground, then it could be a better option to first reach out before filing a lawsuit. It gives you a chance to avoid any real litigation, leading to less fees from your lawyers and shortening the entire process. When doing this, it’s still recommended to already be in contact with a labor lawyer and in fact for them to begin the conversations with your employer - which can show your willingness to take further action. They can offer advice and in case speaking to your employer doesn’t go as hoped, you won’t be scrambling to find someone to file the claim within the three week deadline.

When reaching out, try to use it as an opportunity to learn more about the company’s decision process; it could help with any lawsuit you may file. It can feel scary, but below are some tips to ensure you feel prepared and confident:

• Be clear about your knowledge of German Labor Law, and set clear expectations of what you expect to get from a settlement. Nothing scares an employer more than realizing that their plan to let you go illegally didn’t work.

• Make it known that you were a valuable member of the team and you’re well aware of this; particularly stating your skills can be useful in a layoff because they should have offered you other positions if there were any open roles available.

• Everything can be negotiated - so ask for it all. Worst case you don’t get things, but asking for more than you want ensures that you have more wiggle room when it comes to the final settlement reached.

• Set a clear deadline for when you need an answer, and clarify that you will take further action (i.e. file a lawsuit) if you don’t hear from them by then. Be sure that the deadline leaves enough time for you and your lawyer to file a lawsuit assuming you don’t get the settlement you want.

• State that you are willing to come back to the office; clarifying that you are offering your work solidifies to them that if you were to go through the full litigation process, and win, you would actually take your job back.

• Stand firm in your language; intimidation and creating doubt will likely be their primary way to try and scare you out of litigation. They should sense your confidence in the writing.

If there is any information you want to pull from them, this can be an easy way to get this and have it on written record (assuming you send an email), particularly if there is information they shared in person/on the call in which the dismissal took place which is not included in the documentation provided. Some good questions to ask include are:

• Can you please clarify the reason why I was terminated?

• What are the terms that you are currently offering?

• How many people were let go from the office?

• Why wasn’t I offered _____ open role?

If they bite, great! You’ve just received a settlement in terms you’re happy with without the need for a lawsuit (saving time, money and energy). If they don’t, you can at least gauge where they’re at and what you might have more success negotiating for. If you are looking for more in depth negotiation advice, we recommend reading Never Split The Difference.

Taking the approach for a softer negotiation is a choice you have to make with your lawyer, but it is a pathway we advise exploring if time permits.