When I was employed I documented everything on my work cell so emails, phone calls, notes are all there and I no longer have access because I had to return the work cell upon termination. The wrongful actions were over a two year period and I documented everything but unfortunately didn’t bcc my personal email. In light of that, it seems the case would be won or lost on circumstantial evidence. Just not sure the extent of DLSE’s investigation like do they just look at direct evidence (docs etc) that I provide which in some cases would be scant or do they ever subpoena records or is that only the job of a lawyer? Just don’t know if they are in the business of looking at the least amount of evidence possible or if they go deeper if it’s not so clear cut.
The DLSE deals with wage and hour issues. They are really not equipped to effectively handle claims of wrongful termination.
If you believe you have been terminated in violation of the law, your best approach would be to seek out a specific and confidential consultation with an employment law attorney.
The proof issue you raise is a concern. I imagine by the time a lawsuit is filed and discovery is performed this employer is going to claim that that particular phone was discarded or wiped prior to knowledge that you were bringing the lawsuit. That means proof in your case will depend upon other things like oral testimony, documents, and the testimony of other witnesses. This is very often the case in employment law cases. Having the information on the phone would be helpful but may be dealt with in other ways. That is why you want an experienced employment law attorney prosecuting the case on your behalf.
At this point the smart move would be to locate and consult with an experienced employment law attorney as soon as possible to explore your facts and determine your options. I would suggest you look either on this site in the Find a Lawyer section, or go to www.cela.org, the home page for the California Employment Lawyers Association, an organization whose members are dedicated to the representation of employees against their employers.
Most employment attorneys who practice this area of law work offer a free or low cost consultation in the beginning and then, if the matter has merit and value, will usually agree to work on a contingency basis, meaning you can hire an attorney without paying any money until the matter results in a positive outcome for you. Many advance all the costs of the litigation as well. Do not let fear of fees and costs keep you from finding a good attorney.
Good luck to you.
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