Welcome to Part 2 of our six part series on “What to Expect During Your Employment Law Dispute.” Assuming you have received your “golden ticket” from the EEOC, discussed in Part 1, (and remember that some claims do not require you to file with the EEOC such as FMLA claims, wage claims/overtime issues, and breach of contract cases) it is now time to file your official lawsuit and get things started. Remember, you only have 90 days to file a lawsuit if you received a Notice of Right to Sue from the EEOC. Those 90 days will pass quickly and you do not want to wait until the last minute. If you already have an employment law attorney, great! If you don’t, it is time to start calling law firms to see if someone is willing to represent you in filing your case. If you cannot find a lawyer to represent you, you are also allowed to file your own lawsuit pro se (the legal word for representing yourself without an attorney).
In order to officially file your lawsuit, you must file a Summons and Complaint in either South Carolina state or federal court. You can call the Clerk of Court’s office for assistance if you do not have an attorney. They will help you fill out the appropriate paperwork. The filing fee in state court is $150.00 and the filing fee in federal court is $400.00. If you are represented, your attorney can advise you on the differences between filing in state or federal court. Generally, if you file in state court the employer will “remove” (or transfer) the case to federal court and you will end up litigating in federal court anyway. After you file the case in the Clerk of Court’s office, you will have to “serve” the lawsuit on the employer. If you have an attorney, your attorney will handle this for you. If you do not have an attorney, the Clerk of Court’s office will instruct you how to serve the documents on your employer.
After your employer receives the Summons and Complaint, it will have 21 days (in federal court) or 30 days (in state court) to file an Answer. Attorneys will sometimes grant each other extensions if requested timely. An Answer is a legal document where the employer generally denies most of the allegations and files its appropriate defenses to your claims. Employers also have the option to file a Motion to Dismiss instead of filing an Answer. If an employer files a Motion to Dismiss, you will have to defend against the motion. After the employer files its Answer or the Motion to Dismiss is resolved, the Court will generally enter a Scheduling Order. The Scheduling Order is a list of due dates for certain elements of your case that the lawyers must comply with. Your lawyer and the employer’s lawyer will have a telephone conference to discuss the due dates and other elements of your case. Thereafter, your case will enter the “Discovery” phase, which will be discussed in Part 3 of the blog series. Always contact a South Carolina employment lawyer to assist you with your legal questions.