Twitter employees turn to litigation as tech sector shrinks workforce

There are a few key takeaways that flow from this story.

First, filing a claim never means this case will necessarily be tried in court. Claims generally are filed after it is clear that confidential negotiations are not resulting in fair or fruitful outcomes. Sometimes employers refuse to meaningfully engage with an ex-employee (or their counsel) until a claim is filed. Other times, despite movement on both sides the delta remains too vast and litigation is the logical next step.

The vast majority of cases settle well before trial. The benefit of launching a claim for plaintiffs is the access litigation gives you to impose accountability on your ex-employer. Once a claim is filed, an employer must defend against the case, usually within 30 days (in Ontario). Then, the parties must mediate or try to settle the matter within six months if you live in Toronto, Ontario, or Windsor.

A mediation forces both parties to examine the strengths and weaknesses of the case. For example, if an employer makes a “lowball” offer on termination, it is at mediation that an employer often reconsiders its position. If it fails to, it may be on the hook for greater costs, including your legal costs down the road.

Litigation can also help an employee understand the value of their cases. Allegations must be supported. Evidence should be collected and analyzed, including efforts to find new work.

Second, filing a claim allows a plaintiff to create a compelling narrative.

In Tei’s case he was terminated after only one-and-a-half years but at a time that thousands have been terminated from the very same sector. He claims he received conflicting information about when his termination took effect. He claimed he didn’t get a helpful reference from his employer when he was terminated.

These components help to create a story that can, at times, justify the payment of damages beyond those flowing directly from the breach of an employment agreement, such as damages for bad faith.

Employees can include facts like their level if education, medical disabilities and family considerations in a statement of claim when detailing possible legitimate impediments to finding new, comparable work. In fact, employees like Tei who worked wholly remotely may have legitimate grounds for limiting their job search to remote roles (i.e. as a result of childcare commitments).

As a whole, commencing litigation need not be a scary step. But all too often employees have little information on what the process includes and what the risks are to them.

Ask questions about the pros and cons to litigating an employment case. Conduct a cost benefit analysis. After all, it is one of the biggest business decisions you will ever make in your career.