Feeling unlawfully harassed at work, but not quite ready to seek legal counsel? Are you wondering what steps, if any, you should be taking to preserve whatever rights you may have, now or in the future? In twenty years of practicing employment law, I’ve developed a list of actions that can shape the outcome of a case, should you ever decide to pursue a claim.
First, the “DO” list.
1.) DO make a written complaint and ask for an investigation. Later on, if your dispute becomes a lawsuit, the issue of when the employer was put on notice of harassment or discrimination will become a major focus for establishing liability. The earlier the employer has notice of your complaint, the earlier your boss has an opportunity to “fix” things. Maybe s/he will, and maybe s/he won’t. In any event, creating a paper trail establishes the date of the first notice. Don’t just quit and walk away: tell them what’s going on!
That’s the “why.” The “what” is a little harder: how much should you say? To whom should you address the complaint? Every situation is different. Look up your employer’s harassment policy in the employee handbook, if there is one. Most employers will describe the chain of command for reporting complaints. Write a concise email or memo to that person or persons, describing your situation in sufficient detail for someone to be able to start an investigation. “Help me, I’m being harassed” is probably not helpful and arguably doesn’t give the employer sufficient notice of anything much. A memo such as the following, short and concise, is a good start: “I believe I have been [choose as many as apply] harassed/discriminated against/retaliated against/set up for termination because of my [choose as many as apply] gender/race/ethnicity, by [name of person].” Provide general details, and ask for a meeting. It is then up to the employer to obtain specific details. The beauty of such a memo is that its form mirrors EEOC and DFEH charges of discrimination, and can therefore form a consistent backbone of later claims.
2.) What’s in your personnel file? You are entitled to view your personnel file and obtain copies of any documents you signed. The employer must, upon request by you, make your file available to you within a reasonable period of time, during normal business hours. Go see what’s there. Make a list on a separate sheet of paper, identifying every document that is in there. Later on, if a lawsuit becomes necessary, your lawyer will ask your employer for your personnel file. Having made a list earlier, you will know if any documents have been removed.
3.) If you’re upset, go see someone. I’m not an attorney who wants everyone going to see a therapist in order to document emotional distress. I believe that the case has got to evolve honestly, and that set-ups are easy to detect. But if you’re hurting, go see someone. It’s that simple.
4.) If it’s rightfully yours, take it home. Employees have a reduced expectation of privacy in the workplace. Many employers reserve the right to go through computers and review all documents, including emails and downloads. This is also true of tangible items; I have litigated numerous cases in which supervisors admitted to going through employees’ offices after hours in search of documents and things. I don’t want to make you feel any more paranoid than you may already be feeling. My only point here is that things disappear, especially when they’re relevant, and employees may have little if any recourse. If you are terminated without notice tomorrow (which I hope doesn’t happen), you probably won’t be given the chance to go through the last six months of emails, and your computer access will be turned off before you’re shown the door. Bottom line: as soon as you receive or write something that could be relevant, of if you have the queasy feeling that you’re being set up to be terminated, take all relevant documents home with you regularly – so long as they are rightfully yours, of course (see “don’ts”, below).
And Now, the Don’ts:
1.) Don’t take things from the workplace that don’t belong to you. It may be tempting, but don’t do it. Don’t take any of the employer’s confidential information, an email that wasn’t addressed to you (unless a co-worker gave it to you), other people’s personnel files (even if you are in HR, you will not be looked on favorably if you leave the company with other people’s confidential information), client lists, and so on. It goes without saying that you should never access someone else’s email account and print emails or, even worse, create false emails. This should be obvious, but you might be surprised at the number of times a client has shown us items that should never have left the employer’s premises. A former client, I am chagrined to tell you, fabricated email streams and attempted to pass them off as authentic. That case did not turn out well. Theft of and tampering with employer property never bodes well for a future lawsuit. It will come out, and you could be looking at counter-claims — for violation of privacy, violation of confidentiality/trade secret theft, and even evidentiary sanctions by a court. Take what’s yours. Leave the rest behind
2.) Don’t record anyone without knowledge and explicit permission. This is a federal offense, truly. It’s a violation of the Federal Wiretapping Act. I can understand how you might want to catch your co-worker or supervisor making incriminating statements, but first of all such recordings aren’t admissible as evidence because they’re against the law; and second of all, if you eventually file a lawsuit against your employer, your employer can counter-claim against you for violating the Wiretap Act. Even administrative agencies like the NLRB, EEOC and DFEH cannot consider secretly-recorded statements. So don’t do it. It won’t help, and it will cause problems for your lawyer.
3.) Don’t refuse to perform any aspect of your job. A year from now, if your employment dispute has become a lawsuit, do you want a judge to know that you continued to perform beyond all expectations even though you were being harassed, or do you want the judge to know that you dug in your heels and balked at every assignment? Again, it should be obvious: keep doing your job to the best of your ability. There is nothing like a good performance review to counter an employer’s claim that a terminated employee was incompetent. Like your mother told you every morning before school: go out there and do your best!
4.) Don’t look at porn at work and don’t send pornographic images to your co-workers. I don’t know why we have to even say this. You leave an electronic trail when you do this. It bothers other employees. It discredits you. Don’t do it.
5.) Don’t Get Discouraged. Even if you are terminated, and even if a dozen lawyers tell you that you don’t have a legal foot to stand on, there is relief in being able to leave a hostile environment. You stand a little taller, sleep a little better. That’s the silver lining. It is a humiliating experience to lose a job, but if you have been battling animosity in the workplace for any length of time, your physical health will probably improve immediately when you leave.