Your credibility is your number one asset. Be truthful. It is better to remain silent than to say (or write) something that’s not accurate. Example: when signing paperwork that relates to termination do not sign things until you verify it is 100 percent accurate. Don’t be rushed. They are firing you – you have no obligation to agree to anything, particularly if it is inaccurate or you don’t agree or you don’t fully understand. Example: be aware that government documents often will require you to sign under penalty of perjury. Be doubly certain these statements are truthful and accurate to the best of your knowledge.
Document everything. Keep a physical paper file in a safe place. As soon as you have a sense that you may end up in a dispute, get out a fresh calendar and write down notes to give to your attorney (even if you don’t have one yet) details about what happened on what dates. You will be preparing this so that you can share with your attorney everything that happened. This will help you communicate your story in an understandable way.
Your ability to know and recall dates, times, context, locations, witnesses, discussions, and other specific facts are all important to your presenting truthful, accurate, compelling testimony. Preserving this information will help your attorney to prepare you to give your best testimony.
Example: A) print 12 pages of a January to December calendar off the internet; B) start with January: “what happened in January? – oh yes, Jim told me right after the new year that he would give me the 15% performance bonus if I sold 100 units by February 28” → write this down in the first part of January even if you’re uncertain of some things. While writing, remember where you were when this was said. Who was present? Write that down. Your response? Write that. Odd detail you remember such as “Jim wore the new turquoise golf shirt he got at company xmas party” → write that too. Details matter and can help keep your memory fresh.
3) Don’t arbitrate
The American jury system places decision making in the hands of regular people. Private arbitration places decision making in the hands of a single judge. Don’t sign an arbitration agreement unless you really know what you are doing (that is, unless you have obtained attorney advice to do so). Arbitration agreements (at least in many or most instances) have a tendency to favor employers and there is no effective right of appeal. If given something like this, an employee may wish to accept it graciously and ask for a chance to consider it. Ideally, an employee will make a written summary of everything said in this discussion; particularly if an employer insists or else states that continued employment depends on agreeing to arbitration. Write down exact quotes and details immediately after the conversation occurs. Seek counsel before you sign away your right to a jury.
4) Get your evidence
If you see termination as possible or likely, you need to be certain you have the documentary evidence that you think you will need to prove your case. Once you are fired, you will lose access to email; you will return your laptop and company-provided phone. If you think you may later need a document, print it out on paper and put it somewhere safe. There are boundaries here – employer files are the property of the employer and an employee must not steal or act dishonestly or violate the terms of any agreements with the employer to safeguard confidential information. This is another area where seeking attorney advice early can greatly help you to take appropriate steps. However, if you are fired and you never printed that retaliatory/discriminatory/harassing email, you may be dismayed to find the employer has “lost” or “misplaced” those emails by the time they are sought during a lawsuit. Remember: if you need it to prove that your employer violated the law, print it out, photograph it, and get it to a safe place.
5) Don’t negotiate for yourself
Getting fired can be very difficult on many levels. A former employee acting on their own behalf will very often be ineffective in trying to negotiate an issue with a former employer. Often, one can actually harm one’s position by making poor decisions, taking unreasonable positions, or allowing emotions to intrude into the discussion. Consulting with an experienced attorney can help you understand your rights. In some situations it can be appropriate for interactions to remain between employer and employee, but be sure you have an experienced employment attorney in your corner for advice and counsel. The time and expense invested in getting sound legal advice during the negotiation can greatly enhance the likelihood of a successful discussion.
6) Complain in writing
If it’s a serious issue, usually it should be put on paper. Once you do this, keep paper copies in a safe place. Don’t trust that your supervisor will later remember the key details (or that he/she will admit that you complained at all).
7) Get your records
California employees have a right to obtain their pay records, agreements, and employee file. If you ask for your records, do it in writing. Keep a paper copy of your request at home (yes, including a copy of the stamped envelope and/or the exact details of delivery).
8) Keep it clean
Litigation is hard. An individual will often feel they are the one “on trial”. Know that everything you do/say/write may later become an exhibit that 12 strangers (or one judge) will evaluate. Never do anything that could be viewed as dishonest or underhanded. Try not to speak or act from anger or hurt and try to avoid emotional interactions where you may say things you later wish you hadn’t.
9) Don’t quit
Work situations can get very difficult. Sometimes employers try to induce employees to resign However, quitting can have significant legal repercussions. Talk to an attorney before things get to the point where you feel you are forced to quit rather than go back another day. If you decide to quit, be sure you know what you’re doing from a legal perspective. Retain counsel if you’re unsure.
10) Retain counsel
If you believe you may have grounds for a lawsuit, talk to an attorney promptly. We represent employees. Contact Heilman Law Offices, APC today for a no-cost initial consultation.