Publications

Employee guide to dealing with discipline/termination at the workplace

What to do if you face discipline including termination and how to go about finding an attorney and building/filing a case against your former employer

Contents
Understanding the difference between unfair termination and illegal termination
Determining if the employer is liable
A basic guide to how to value your case
What To Do in the Face of Discipline, Demotion and/or Termination
Best ways to respond to discipline/termination – how to protect yourself and build your case
Effectively Presenting Your Case to an Attorney
Outline of the legal process – what’s involved
Common myths and misconceptions of the legal process
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OTHER EMPLOYMENT DISCRIMINATION PUBLICATIONS

Excerpts from Employee guide to dealing with discipline/termination

What To Do in the Face of Discipline, Demotion and/or Termination

I. Put It In Writing

    If you receive verbal or written discipline (including termination) and you disagree with the reason(s) for the discipline, you should respond in writing to your employer regarding the reason(s) for the discipline. Make sure you can support your responses to the discipline with valid facts for why the reason(s) for the discipline were not correct.

    If you can, you should attach documentation to support your response. Before sending your written response, wait at least 24 hours after you have finished it. During that time period, consider how the response will be received by your supervisor or management. Make sure that your response is free of anger, revenge or other unhealthy emotions. Consider having an attorney review your response before sending it in. It does not cost a lot to hire an attorney for one hour to review your letter, but admitting or misstating something in a letter can be very costly. Keep a copy of the response and attached documentation for your records.

    If you fail to make any response, it could later be viewed as an admission by you that you agreed with the discipline and reasons for the discipline. If you file a lawsuit because of your employment situation later, it will be much easier to review the response that you had already written to the discipline then it will be to remember why you opposed the discipline a year or two later.

II. Keep Documents Organized

    If documents or e-mails exist that support your side of the story, keep copies of them and do so as soon as possible. Documents tend to disappear over time. Keep copies of documents that have any relevance to the situation. You might even want to make two files, keeping them in separate places in case of fire, flood, or theft.

III. Taping Phone Calls

    In Ohio, to record a conversation, whether on the phone or not, you only need the consent of one of the parties. If you are part of the conversation, then your consent is considered sufficient. In other states the law may be different. Consult with an attorney before recording a conversation in those cases. You can buy a tape recorder for your phone at Radio Shack. It’s not a good idea to set up a system which automatically tapes your phone conversation. This is because someone else might use your phone without realizing you tape all calls, and voila, wiretapping (a federal offense).

    If you can’t tape your calls, either take notes during the conversation or meeting or take notes on what was said immediately after the conversation or meeting. Keep these notes at your home or somewhere outside the office. Keep a copy of any important documents/e-mails at a place outside the office. If you are terminated, your employer is not going to let you stop at your desk and assemble work documents and walk out the door with them.

    You can also send a follow up letter to the employer confirming the contents of your conversation, and asking them to write you back if your written recollection is in error. The employer’s failure to respond to that letter might be seen by a court as confirming what you wrote in your letter.

IV. Logs and Diaries

    Your memory a year or more from now is going to be much worse than it is today. Keep a daily log of happenings at work, of conversations, etc. Keep a copy of the log at home or somewhere other than work. Keep the log in one notebook and not on several pieces of paper or different calendars. If you ever file a lawsuit, your log will prove invaluable.

    Generally, I recommend using a log to keep track of conversations at work; however, a daily log of your attendance is also a great idea. Many employees assume that an employer will treat them fair in disciplinary matters and that an employer will keep accurate records that can be searched if there is a discrepancy on attendance issues. Don’t count on either! I strongly recommend keeping a daily log of your attendance records at work which would include the date, the time you clocked in for work, the time you clock out from work, and break times. For days that you miss work, you should keep track of why you missed work; how you informed your employer of your absence or tardiness; and with whom you spoke. Attach any doctor’s notes or other documentation to that particular page of your log corresponding with the absence.

V. Updated Contact List of Important Persons

    While employed, obtain the home addresses and telephone numbers of your co-workers as well as their home e-mail addresses. Update this list on a regular basis. Keep track of people who have left employment with your employer. They may be your most important allies later. If you file a lawsuit, this list will be extremely useful to your attorney in locating potential witnesses. As always, keep a copy of this at home and not at work.

VI. Performance Improvement Plan

    If your employer has given you a performance improvement plan then, by all means, keep a daily log of how you have worked to meet the objectives on the plan. If the objectives are impossible to reach, still keep a daily log of how you have attempted to meet your employer’s demands as well as why the objectives were unattainable. Keep any supporting documentation.

VII. Don’t Sign What You Don’t Understand

    Your employer may want you to sign documents related to your discipline or termination. You may think that you understand things put in front of you to sign. I’m here to tell you that you don’t. Your employer is having you sign things for a reason. The employer’s counsel wants these things signed. If your employer gives you things to sign, politely refuse and indicate that you would like to review them with your attorney. Take any pressure to the contrary as proof that signing will be a disaster. Obtain a copy of anything that’s presented for your signature.

IX. Keep An Updated Resume

    Make it a habit of updating your resume on a yearly basis. You never know when the axe will fall. To that end, keep an eye on other job opportunities. No matter how much you like your present employer, keeping an eye out for new jobs on your own time is a good idea. The very second that your employer determines that they can make more money without you than they can with you, you are gone. Why not practice the same policy yourself with regard to better paying opportunities? Just as you are an at-will employee, you can choose to leave at any time.

X. Establish a Network of Good Job Contacts.

    Ideally, you should have funds saved (outside of retirement savings) to support you for at least six months if you find yourself out of work. Consider meeting with a financial planner and working towards accomplishing this goal.

XI. How to proceed when blindsided by an interrogation

    There may come a time when you are summoned to a conference room or office and find a security specialist, an HR representative and your supervisor assembled there. Your employer will not give you any notice of this situation because they want to catch you off-guard in order to obtain damaging admissions from you. Insist upon union representation if you are such an employee entitled to it. You can also indicate that you require your lawyer to attend this meeting. If all else fails and questions are posed to you that you are not absolutely sure of the answer, then indicate that you are not certain or do not know the answer at this time but will be happy to provide responsive information as your become aware of it.