Lots of times people come to me seeking advice on what to do when they haven’t been fired or laid off yet, but they think they will be soon. Most of the time the employee either gets a lay-off notice, gets suspended from work, or gets written up for a terminable offense. This article covers what employees should generally do in those instances.
The most important thing for an employee to do is help preserve his or her rights (this is especially true if he or she anticipates litigation). Generally, the employee should:
- Make a “personal" file for everything relating to his or her employment.
Obtain documentation of his or her performance and any other rightfully obtainable documents that support his or her claims. For example, in California, an employee is entitled to:
- A copy of any instrument he or she signs relating to the obtaining or holding of employment;
- Copies of (or the opportunity to copy) the following records:
- Gross wages earned;
- Total hours worked by the employee (with a few exceptions);
- The number of piece-rate units and any applicable piece rate if the employee is paid on a piece-rate basis,
- All deductions, provided that all deductions made on written orders of the employee may be aggregated and shown as one item;
- Net wages earned;
- The inclusive dates of the period for which the employee is paid;
- The name of the employee and his or her social security number, except that by January 1, 2008, only the last four digits of his or her social security number or an employee identification number other than asocial security number may be shown on the itemized statement;
- The name and address of the legal entity that is the employer; and
- All applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate by the employee. The deductions made from payments of wages shall be recorded in ink or other indelible form, properly dated, showing the month, day, and year, and a copy of the statement or a record of the deductions shall be kept on file by the employer for at least three years at the place of employment o rat a central location within the State of California.
- Inspect all records which the Employer, “maintains relating to the employee’s performance or to any grievance concerning the employee…"
Document all significant events.
Confirm in written memorandums all substantive conversations with management and send copies of the memorandums to the concerned manager and to his or her personnel file and his or her “personal" file.
Respond promptly and thoroughly in writing to any critical written performance evaluations or criticism. It is particularly important to be able to document that factual errors in such evaluations have been brought to management's attention.
Evaluate the usefulness of using any available internal grievance or "open door" system. If the grievance system has integrity, using the system can bring the facts about the proposed adverse action to the attention of senior management, perhaps forestalling a decision based on erroneous information and possibly eliciting a written explanation. Using the grievance system may also establish that every good faith effort was made to comply with the employer's personnel policies. An employer's failure to respond in a reasonable manner might be used as evidence of bad faith and might also establish ratification and knowledge for imputation of punitive damages. However, he or she should consult with counsel and weigh whether using the grievance system might be considered a voluntary agreement to enter into arbitration of the dispute, foreclosing the employee's right to litigate.
Be careful when answering questions at exit interviews, whether by oral interview or written questionnaire, regarding feelings about the job and termination. Forms that employees fill out at the time of termination or notes of exit interviews may later be used to impeach claims of emotional distress or claims that the employer's reasons for termination were pretextual.
Be careful not to sign any release of claims or other document that the employer may present at the time of termination unless the employee consults with a lawyer and understands the ramifications of signing.
Be aware of possible unemployment insurance benefits. In California, a terminated employee is generally eligible for unemployment compensation unless the employer provides facts showing that the employee left his or her most recent work voluntarily without good cause or was discharged for misconduct. For the purposes of unemployment insurance benefits, misconduct means willful, wanton, or similarly culpable conduct, not good faith errors in judgment. Employees need not exhaust their unemployment insurance benefits before bringing a wrongful termination action, and unemployment insurance is not an exclusive remedy for a wrongful termination claim. Unemployment compensation awards or decisions have no collateral estoppel effect on (meaning just because an employee won before an Administrative Law Judge doesn’t mean the employee will automatically win at trial in a civil court) and are not admissible in civil litigation.
Terminated employees have a duty to mitigate damages. Under the common law of contracts as well as the various state and federal civil rights statutes, courts will reduce a wrongfully terminated employee's back pay award by interim earnings and amounts that the employee would have earned had he or she exercised reasonable diligence in securing substantially similar employment. To establish the seriousness and completeness of an employee’s job search, the employee should:
- Seek work in as broad a geographic area as possible.
- Document the job search by keeping a file of, e.g., copies of applications and letters sent, copies of want ads answered, and notes of contacts made.
- Keep a daily diary of job searches, including each position sought, salary, location, and results, e.g., interview, job offer, or rejection.
- If a prospective employer rejects the application, note the reasons given for rejection as well as whether the prospective employer spoke to the past employer, and if so, what was said, when, and whether prospective employer's attitude changed after the contact.
Be on the lookout for unconditional reinstatement offers. It is common in wrongful termination cases for the employer to attempt to show that the plaintiff rejected an unconditional offer of a substantially equivalent job. At least under federal civil rights statutes, such an offer, if truly unconditional and promising the same job, cuts off back pay liability. If the employer makes a reinstatement offer, the employee should seek legal counsel to evaluate whether the offer is in good faith.
Think outside the box. Are there any alternatives available such as:
- Early retirement;
- disability or other types of leave; or
- writing letters.
This is not legal advice. This is an article that I hope you find interesting and helpful. You are not my client just by reading this article and I am not your attorney simply because you have read this article, or even talked to you about the contents of this article. The list in this article is general and not comprehensive and an employee should seek the advice of legal counsel if he or she thinks that they are about to be laid-off or terminated. I used to represent some big, bad corporations and let me tell you, management defense attorneys are really good at finding ways to fire people and make the firings seem legit. You’re way better off if you find a lawyer. While this list will undoubtedly help in preserving legal rights, it does not substitute for the advice of experienced legal counsel.