What do I do if I’m getting harassed, discriminated against, or retaliated against at work?
Legal Advice and Counsel for People Still Employed
We are frequently called upon to advise and counsel employees who are still employed by their employer. Advising and counseling someone who is still employed by their employer is difficult. We typically don’t do it because when an employee hires a lawyer is typically discoverable in any subsequent litigation. If the employee is still employed when hiring a lawyer, it makes it look like the employee and the lawyer built up the case. It can also create a conflict of interest between the attorney and the client because the attorney typically considers what’s best for the client’s case, but what’s best for the client’s case might not be what’s best for the client’s life. So, even though we don’t provide legal advice and counsel to folks who are still employed, below you can find some guidance.
How do I prove my employment case?
The deck is stacked against employees. According to the American Bar Association, the vast majority of employment cases result in a defense verdict for the employer, or a small settlement for the employee. There are certain things you can do to help increase your odds of winning your case. Many of these things are not without risk. In fact, many of them result in an employer retaliating against an employee. While it’s typically illegal to retaliate against an employee for engaging in most of the following conduct, it happens all the time, and is difficult to prove.
So, what can you do to help win your case?
Know your rights. Lots of people call claiming they are being subjected to a “hostile work environment.” But, a hostile work environment doesn’t mean working somewhere where the boss is a hostile jerk. It means working somewhere where the treatment you’re receiving, on the basis of some protected classification, is so severe, or pervasive it actually changes the job.
Make sure you’re a good employee. You should try to do your job as best as you can. You should try to follow company policies and procedures as best as you can. That doesn’t mean you should do illegal things, or endanger yourself or others. It means you should try to do what the company is telling you to do. If that doesn’t work out, you should try to talk to your supervisor, union rep. and/or a lawyer. If that doesn’t work out, you should try to go to Human Resources. If that doesn’t work out, that’s when you should probably try to talk to people outside the company like the EEOC, DFEH, DOL, DLSE, WCAB, etc.
Get a copy of your personnel file, and anything else you’ve signed. You can find a form letter here: www.legalaidatwork.org/wp-content/uploads/2017/01/Sample-records-request-letter-from-client.doc. It’s usually a good idea to request a copy in pdf form. If the company sends a physical copy it is usually best to video yourself opening the envelop including showing the envelop hasn’t been opened before, opening the envelop and going page by page through the envelop. That way you can show everything they provided, and they can’t argue that you added, or subtracted things, or stole documents that they actually provided you.
Keep a copy of your timecards, and wage statements.
Get a copy of the employer’s payroll records for you.
Get a copy of any important workplace policies and procedures like employee handbooks, safety procedures, etc.
Keep a written record. You should keep a written record of every important event, conversation, or meeting. The written record doesn’t have to be fancy. It could be a series of notes on your phone, or emails, or text messages to yourself. You want something you can return to 1 week, 2 months, or 5 years from now.
Put things in writing. If you have a complaint, put it in writing. If you dispute your write-up, put it in writing. If you are request leave, put it in writing. Many companies have forms for this stuff. Use the forms. But, always keep a copy for yourself.
Confirm things in writing. HR and supervisors are often trained to conduct in-person, or over-the-phone conversations. The reason they do that is they don’t want a written record of what was said. You can confirm important conversations through email, or text messages. Just make sure you can have access to them if you get locked out of your computer or lose your job. Lots of employers have software alerting them to employees forwarding emails from their work email address to their personal email address. You are better off printing a hard copy, and scanning it to a pdf. You can also print to pdf and keep a USB of documents (assuming your employer allows it). You can also take pictures of your computer screen with the email using your smart phone. Just make sure you’re not violating any non-disclosure, trade secret, or privacy laws (like HIPAA).
Talk about your situation with people you can trust. These people can be co-workers, friends, family members, significant others, doctors, therapists, or clergy. They can offer a sounding board and suggestions on how to deal with an unpleasant workplace. They can also act as witnesses to any illegal harassment, discrimination, or retaliation.
Don’t talk to people you can’t trust. These people are often company representatives, or plants.
Think outside the box. If you’re having issues with a co-worker, see if you can get transferred to another department, or shift. If you’re having issues with your supervisor, see if you can work under a different supervisor. If you want another job, see if you can find another job before getting fired.
Be prepared for retaliation. Retaliation for exercising your legal rights is illegal. But, it happens all the time and is very difficult to prove.
If you get fired, talk to an attorney or union rep before signing anything! At the very least you can negotiate to see if the company will offer a severance, or allow you to say you were laid off, or allow you to take early retirement.
Trust your instincts. If you feel like you are going to get fired, you probably are. But, don’t just quit without talking to someone who really understands the law. Quitting typically makes proving your case more difficult, and makes recovering unemployment more difficult.
If you’re having some workplace problems, you really should talk to an experienced employment lawyer. Legal Aid at Work does a phenomenal job of providing resources and advice and counsel for people who are still employed. If you do get fired, we’d be honored to evaluate your case free of charge. Just fill out our free case evaluation form. It goes directly to John’s inbox. John will review and respond by close of business. If he thinks he can help, he’ll reach out to schedule a free consultation. If he doesn’t think we can help, he’ll tell you why, and provide you resources to help you understand the law, find the right attorney, and even help yourself.