Feeling like you are about to get terminated or laid off? Make sure you take these recommended steps to best protect yourself:
- TRY TO GET A DOCUMENTED REASON FOR THE TERMINATION OR LAYOFF, IF POSSIBLE. Employers are not legally required to give you a reason for your termination or layoff. This makes it easier for employers to raise as many reasons for a termination as they can devise after the fact. Because employers generally can take adverse employment actions for any reason or no reason at all (except for unlawful reasons), if you can pin down your employer for a reason for the termination, it is much easier to evaluate the validity of your termination and identify what information would be helpful in evaluating the reason given. Getting a reason also makes it more difficult for your employer to later claim different or additional reasons.
- GATHER OR PRESERVE ALL DOCUMENTATION RELATING TO YOUR EMPLOYMENT THAT YOU ARE PERMITTED TO HAVE AFTER CHECKING YOUR COMPANY’S POLICY. This would include things like your personnel file, evaluation records, employee handbooks, any employment contracts, non-competes or arbitration agreements you may have signed. If permissible, you might also want copies of any email or correspondence received or sent related to your employment or the possible reasons for termination. However, if items are specifically marked Confidential or Proprietary, check with an attorney BEFORE you take it or make a copy.
- IF YOU BELIEVE DISCRIMINATION OR RETALIATION IS OCCURRING, COMPLAIN IN WRITING TO ALL DECISIONMAKERS. If you are being subjected to and pushed out because of discrimination or retaliation in the workplace based on a legally protected reason (i.e., race, sex, disability, religion, marital status, genetics, whistleblowing, etcetera), inform management and all decisionmakers IN WRITING of the discriminatory or retaliatory treatment. Make sure your complaint identifies which protected characteristics apply to your situation (i.e. national origin, gender, perceived disability, skin color, pregnancy, AIDS/HIV, whistleblowing, etcetera). Also, make sure the tone of your letter or email is even, rational and to the point, as it will be used as evidence in your case. Do not write any complaints when you are angry. Be sure to review it carefully before sending—perhaps even have it reviewed by an employment attorney in advance to make sure you do not say something you should not. Also, keep a copy of what you send to your employer, including proof of the date it was sent, who received it and when.
- TAKE NOTES AND/OR HAVE A WITNESS WITH YOU WHEN YOU ARE MEETING WITH YOUR EMPLOYER ABOUT YOUR TERMINATION, IF POSSIBLE. Ask your employer if you are permitted to have a neutral witness at the meeting. In most circumstances your employer does not have to agree, but it does not hurt to ask. Some public sector employees may be entitled to have representation or a union representative present at disciplinary and/or other adverse employment actions. Most importantly, do not record these meetings without all participants’ consent, as that is generally against the law in Florida.
- DO NOT SIGN ANY RELEASE OR SEVERANCE DOCUMENTS BEFORE HAVING THEM REVIEWED BY COUNSEL. An experienced employment attorney will be able to provide you with advice as to exactly what potential claims you are signing away, and the long-term effect of signing a severance agreement, separation agreement, release or waiver. You need to be aware that in most situations you cannot sue an employer once you have signed a properly drafted release of claims. Further, do not turn down any settlement or severance proposal without first consulting a lawyer. Once you reject an offer, your employer is under no obligation to put it back on the table.
Stay tuned next week for additional tips on what to do if you have been or are about to get fired!