In the modern workplace, most employees see a looming termination coming from a mile away. While occasionally an employee get blindsided, employers tend to make it clear that they are moving an employee toward termination. As an attorney representing employees, it is quite common to receiving inquiries from potential clients asking for advice on how to handle the lead up to a termination. These are the five things I would tell to every employee facing termination:
- DO YOUR JOB. While showing up for work knowing that you are on a march toward termination can be incredibly demotivating, it is important to continue to put forth maximum effort. If an employer’s impending termination is motivated by an illegal consideration, it is important not to provide a legal reason to terminate employment, i.e. poor performance. Allowing your frustration to manifest itself in poor performance only provides a potential defense for an employer.
- RAISE YOUR VOICE. If you believe the decision to terminate you is motivated by an illegal consideration, go and make a complaint. By making this complaint, you put your employer on notice of the illegal behavior and create a record that can be vitally important after your termination. It is important to consider consulting with an employment attorney so they can assist in making your complaint as persuasive as possible. This can be really scary, but remember you are probably being terminated soon, so what do you have to lose.
- DON’T QUIT. If you want to explore the possibility of bringing a claim for wrongful termination it is imperative that you do not quit. In wrongful termination lawsuits, the most important measure of damages is wage loss. However, if you quit employment, then you are not entitled to wage loss damages. While there are circumstances where you can still obtain wage damages if you quit, this is something that should be discussed with an attorney prior to making the decision to quit.
Quitting also likely prevents or, at a minimum, complicates your application for unemployment compensation.
- LEAVE YOUR JUMP DRIVE AT HOME. Often times employees consider backing up all their files to a jump drive, this is a bad idea. First, this is a corollary to “Do your job” as backing up your computer to a jump drive usually violates a company policy and it is important to not provide a legal excuse to terminate your employment. Second, it just creates a headache if you do bring an action against your employer for wrongful termination as all of that material must be catalogued and produced to your employer in discovery. Lastly, especially if you have confidential information, like client lists, it could open you up to a lawsuit from your former employer as you begin working for another company. Even if you don’t use the confidential information, the mere possession of this information will create assumptions that are difficult to refute.
- WRITE IT DOWN. It is important to start recording what is happening in the workplace. The best method is to email yourself at your personal email from your personal email. Your contemporaneous recollections of interactions in the workplace will be invaluable as you refute your employer’s version of events. The timestamp on your emails will demonstrate your contemporaneous recording, which increases the credibility of your version. This is a great way to record inappropriate comments evidencing an illegal motivation or to record other events. It is also a great place to record the existence of important documents or emails. If you end up bringing an action for wrongful termination, the company will need to produce these documents to you and recording their existence will assist in ensuring that you are provided everything you are entitled.