Traditionally, plaintiff side employment lawyers have combined their federal employment law claims with any applicable state law causes of action. This tactical decision makes some sense because the federal employment law statutes contain attorney fee shifting provisions that allow plaintiffs to recover her attorneys fees from the defendant if they prevails at trial. In contrast, the state law claims that apply in the employment law setting like wrongful discharge in violation of public policy, tortious interference with contract and battery do not permit the plaintiff to recover attorneys fees from the defendant.
There is a downside to pursuing federal claims with North Carolina state law claims – - the defendant can remove the lawsuit from state court to federal court based on federal subject matter jurisdiction. In other words, by bringing federal claims in state court, the plaintiff affords the defendant the right to remove that complaint (including the state law claims) to federal court.
Defendants strongly prefer to litigate in federal court for several. First, defendants believe that federal judges are more inclined to dismiss employment lawsuits at a stage called summary judgment, which deprives the plaintiff of a jury trial. Second, defendants believe federal judges will be more more likely to reduce damage awards issued by a jury than their state court judicial counterparts. Additionally, federal judges also tend to allow attorneys less leeway in selecting jurors than do state court judges, which is a process called voir dire.
Ultimately, deciding which claims to bring will determine whether a federal or state court will decide the case. Potential clients should walk through these “forum” issues with an experienced employment law attorney to weigh the costs and benefits of bringing federal claims.