“They aren’t going to want the publicity.”
In my experience, this phrase is right up there with “This isn’t about the money” when it comes to red flag phrases from potential clients looking for legal representation in a case against their employer or former employer in a wrongful termination or discrimination case.
Like a lot of common misconceptions about the legal process, “They aren’t going to want the publicity” is based on some truth that is stretched beyond reality. Companies like to keep litigation or disputes with former employers private. Employers usually demand confidentiality to settle cases out of court. Sometimes even routine company documents are subject to protective orders from courts.
But the threat of bad publicity is almost never sufficient to settle a dispute with employee quickly and on favorable terms to an employee. This post is about detailing some of those reasons.
Is your dispute with your employer newsworthy? In other words, why would anyone else be interested in what happened to you at work? If the mistreatment is based on something like sex, race, religion or disability, etc. you at least get your foot in the proverbial door. Same if you are opposing some unsafe or unlawful practice by your employer. But if your mistreatment is more or less a personal dispute between you and your boss or you and your co-workers, it’s not news.
Not all news is fit to print – Let’s say you have a legitimate legal case against an employer or former employer, does that mean the media will be running to put a microphone in your employer’s face? If what you are alleging is common place or typical then probably not. Maybe if something happens in your case like a favorable decision on a motion or verdict, then maybe that will merit some media coverage. But most civil cases don’t garner media attention based on merely filing a lawsuit.
Less news is fit to print nowadays – There is less coverage of local news due to the decline of local newspapers. So even if you have a strong legal case that may have some public interest, there are fewer reporters that would be able to cover your case. Early in my practice, up until about 2010, the local Associated Press would call me routinely about filings in my federal employment cases. Not anymore. Newsworthy cases may now get picked up in outlets like Law360 or Bloomberg Law that are read by lawyers, but it’s less common to read about civil cases in general publications.
Negative publicity is far from fatal for major employers – So let’s say that your case against your current or former employer garners some media attention and that attention is unfavorable for your current or former employer. If it’s a major employer, they likely have a public relations department to spin the story and more importantly create an ongoing stream of positive coverage that overwhelm the negative news about your case. Major employers also spend on advertising and corporate philanthropy to bolster their image. So the negative press from your claim, may be entirely cancelled out by what a companies efforts on advertising and public relations. Bluntly, major employers budget substantial sums to fight negative publicity.
Negative publicity may not change how your employer does business– Sometimes employees want employers to change how they do business. Maybe you can do that through litigation, but actions like collective bargaining and political organizing are the more effective in accomplishing those ends. But again, major employers already spend large sums of money on regular basis on the political process through lobbying and campaign contributions.
In short, employment law cases are about employees trying to correct harms done when their employers violate employment laws. While these harms can be newsworthy, they rarely garner media coverage. Even when they do, that media coverage usually doesn’t lead to substantial changes from employers without organized and sustained pressure. The potential bad publicity for the mistreatment of an individual employee is not going to lead to those changes in and of itself. An employee seeking justice, financial or otherwise, from mistreatment in the workplace is likely going to be in for relatively long-hail.