San Diego Employment Law Blog

I Think I'm Going to Get Fired. What Should I Do?

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Created on Saturday, 11 February 2012

Lots of people come to employment lawyers 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 gather:

Discrimination EvidenceEvidence of Discrimination or Harassment: If you have copies of actual documents (notes, “stickys,” emails, letters, offensive pictures, etc.) that establish the atmosphere of discrimination or harassment, it’s important to bring them with you to your initial or subsequent meeting with me. If these documents, pictures, postings, calendars, books, magazines, are in your workplace clearly visible but you are unable to get copies of them – taking a clear picture of them would be useful. The better the picture the stronger our case. If you get a close up, also get a “wide shot” to document where such offensive or harassing documents are in relation to the work environment. Today’s common iPhones often have a respectably-capable camera – so capable that many police officers use their camera phones to collect field evidence.

Discrimination RecordsMedical & Mental Health Records: Workplace discrimination and harassment can and often DOES take a physical and mental toll on an individual. If you have developed high blood pressure, stress, anxiety, depression, or other conditions as a result of your experience at work, it is vitally important to document it both in your written journal and through actual medical records, reports and receipts. If a direct correlation can be established between your current health condition and the workplace discrimination or harassment you suffered, you are often entitled to additional damages for pain and suffering as well.

Witnesses List: It is also important to maintain a list of people who may have been witness to any workplace discrimination or harassment directed towards you. Witnesses are very helpful for bolstering a case.

Discrimination ReviewPerformance Reviews: An examination of your performance reviews is important to establish retaliatory or discriminatory behavior on the part of your employer. If you have consistently received positive reviews until or immediately after speaking up about discrimination or harassment, your attorney should be able to expose important inconsistencies that are often indicative of discrimination and retaliation.

Pay Checks / Pay Stubs: If you have missed days at work where normally you would have been there but for the direct result of harassment or discrimination, we need to document that lost time and pay. If you were denied a promotion that you would have otherwise earned but for discrimination or retaliation, you may be able to recover the difference in wages involved if your attorney can prove discrimination was the reason why you were denied that job promotion.

Discrimination FilesPersonnel File: Your employment record is an important document and will need to be evaluated to determine if you’ve had any warnings or disciplinary actions taken against you in the past. As mentioned, above, I would also like to see your employee reviews in order to get a better idea of how your immediate supervisor had evaluated your job performance in the past. If you are unable to obtain a copy of your personnel file, I can request one from your employer on your behalf.

A Written Journal of Your Experience: Lets face it, memories fail and deteriorate over time. Other employees and coworkers can leave a company and be hard to locate. Keeping a written journal is almost mandatory. Such a journal where you should record times and dates of specific kinds of actions, comments, or events will help you to preserve your memory and document the exact times and dates of specific instances of unacceptable behavior to you or to you and other victims of discrimination or harassment. 
Such a journal where you should record times and dates when you worked specific hours, overtime, etc., will help you to preserve your memory and document the exact times and dates of hours not paid or under paid for.

Evidence of Hours Worked but NOT Compensated: If you have copies of actual documents (time cards, schedules, notes, “stickys,” your personal hours “notes,” etc.) that show that you worked more time than paid for, or worked over time it’s important to bring them with you to your initial or subsequent meeting with me. If these documents, calendars, time records or reports are in your workplace clearly visible but you are unable to get copies of them – taking a clear picture of them would be useful. The better the picture the stronger our case. Today’s common iPhones often have a respectably-capable camera – so capable that many police officers use their camera phones to collect field evidence.

Your actual Pay Stubs: Collect and bring all the Pay Stubs from any check that you have received.
Witnesses List: It is also important to maintain a list of people who may have been witness to you working for hours not recorded or paid for; also overtime situations. Witnesses are very helpful for bolstering a case.

Employee Handbook: Depending upon the size of your employer, you may or may not have an employee handbook available. If one is available you should secure a copy and bring it for my review. Larger companies will publish company policies, information about pay, working hours, breaks, overtime, and procedures for bringing grievances. The courts do not view employee handbooks as contracts between you and the company but they will tend to hold companies accountable for violations of their own stated policies which can only bolster our case.

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