By: Attorney J. Paul Porter
When the walls are closing in at work, it’s hard to think clearly.
I have encountered thousands of different real life termination scenarios and other difficult employment issues where I’ve used my knowledge of employment law to advise people about whether they have a case.
Sometimes, employees are proactive, and they see me before a termination or other adverse employment action happens. I love this because I can help the employee try to avoid, delay, or manage the adverse employment action, saving them money and heartache. When this happens, a lot of the advice I give is practical advice (rather than legal advice), based on my experience of seeing thousands of workplace scenarios play out.
These are some of the practical tips I give:
1. Don’t mess up! This is really hard when your employer has you under microscope. I get it. But the best defense in an employment setting is a really, REALLY good defense. You need to do your job to the best of your ability and be polite, professional, and cool as a cucumber. Don’t give your employer an easy excuse to take action. Some employment law claims require you to show that you were meeting expectations at the time of an adverse employment action. Be the best employee you can be.
2. Keep good records. Keep organized records. If you can do so without violating any of your employer’s rules, keep copies of your performance evaluations, any disciplinary actions, and critical emails and text messages relating to your situation at work. Consider keeping a personal journal or log about occurrences at work. Be mindful that you may have to share a copy of any log/journal with your employer if you pursue a lawsuit.
3. Create a paper trail. On the big stuff, communicate via email. The big stuff includes: (1) complaints to HR about discrimination or harassment, (2) requests for disability accommodation or medical leave, and (3) anything else where common sense tells you a written record would keep all parties accountable. Reserve this for the big stuff. Several emails about relatively small slights, make the big stuff look trivial (don’t cry wolf!) You can document the small slights in your journal.
4. Consult your handbook/harassment or grievance policy. A well-written handbook is going to have an internal complaint process that you need to follow. Not because your employer will actually do anything about your report (that policy is there to CY their A (not yours!) but there is case law that says, failure to follow the internal complaint policy could make establishing certain claims harder later on.
5. Be explicit. If you think you are encountering discrimination based on your race, sex, or creed, then say so! If you need disability accommodation, say what your disability is. If your employer does not know you are complaining about discrimination or asking for help with a disability, then rules about retaliation or engaging in an interactive process to accommodate a disability are not in play. In the context of disability accommodations and medical leave, it’s crucial that you work with your employer, provide them the documentation they ask for, and do everything you can to make it apparent that you can and should be accommodated. The employer may make this difficult and may make you jump through hoops, but you have to show a good faith effort on your part to cooperate.
6. Look for an Exit. A fulfilling (and paying) career is better than a lawsuit. Clean up your resume. Call headhunters. Apply elsewhere (or internally for transfer). If a good opportunity presents itself, leave a bad situation. Self-help is cheaper than I am. (Be mindful of noncompete and other restrictive covenant agreements before you jump to greener pastures).
7. See a lawyer. Consult with an employment lawyer who will give you direct advice on what rights you have (if any) and will tell you what they think you should or should not do. Knowledge about your rights (or even lack of rights) reduces your anxiety about the unknown. This will cost you a fee (we lawyers have to get paid too), but it’s worth it. Having an objective third party, with particular legal knowledge, tell you what they would do in your shoes can be a big help in averting, delaying, or managing a bad employment situation. A prudent employee seeks legal advice at the beginning of a difficult employment situation.
Disclaimer! I literally don’t know who you are, Mr., Mrs., or Ms. reading subscriber to the internet. Every situation is different. This is big picture advice. Call my office and pay me if you want individualized advice. You’ve are currently being warned (by this sentence) that steps 1-6 will vary depending on your particular situation. Step 7 is the remedy.