Recognizing When You Have Been Fired Illegally: Part 2

No type of firing is a good firing; they all burn the same. But in some cases, employers may be acting illegally by firing you. If that’s the case, there are some steps you’ll need to take to know the warning signs and keep yourself protected.

If you believe you were fired illegally, you may have a legal claim. Here’s a section of my book “The Employee Rights Handbook” that deals with just that. Read now and get informed!

Recognize the Warning Signs (#6-17)

6. REMOVE PERSONAL DOCUMENTS FROM YOUR OFFICE.

After being fired, you may have difficulty removing personal effects and business materials from your office. In fact, many employers, after suddenly notifying you that you are fired, will escort you back to your office and stay there to approve the materials you want to pack up and take home. Plan ahead to avoid this potential problem.

The author represented a female employee who resigned from a job. She returned the next morning to retrieve the personal contents from her office. However, many of these items were not given to her. The company claimed that boxes of expensive items (including textbooks, course materials, and technical manuals) were purchased with company funds and remained the property of the company. The woman hired the author to retrieve these valuable materials.

You can avoid this kind of aggravation by being discreet and removing valuable items now. But be sure not to take company property to avoid being accused of theft or conversion.

7. MAKE SURE THAT YOU ARE NOT IN POSSESSION OF ANY CONFIDENTIAL INFORMATION OR TRADE SECRETS.

The computerization of the workplace has caused some subtle but very important changes in the employee-employer relationship. Unlike the workers of yesteryear, most of today’s workers conduct at least some amount of business from cell phones and home computers, blurring the physical boundaries of the employment relationship. This blurring of the boundaries means that the separation process is often more complicated than it used to be.

Hoping to dissuade former employees from suing, many employers go on the offensive when accused of violating the law. It is therefore crucial that employees act calmly and appropriately when fired, even if the firing is unlawful and unfair. After being fired, employees who have signed agreements restricting their post-employment access to confidential information should therefore promptly and calmly offer to return any confidential computer files or other company documents that they possess, and request a written confirmation that such information was in fact returned. Remember, information does not have to rise to the level of a trade secret to be confidential. You may need the assistance of a lawyer to determine what is and what is not confidential.

If the employee has a claim that is at least partially evidenced by documents in his possession, then the employee would be arguably justified in not destroying or deleting copies of all confidential information returned to the employer. For example, if the employee has e-mails to and from the client which corroborate his claim that he facilitated the sale and therefore deserves the commission, he will understandably be reluctant to part with such information for fear that the former employer would destroy such evidence. Likewise, an hourly employee may have e-mails or computer files which contain data showing when it was created or modified, and which can therefore be used as evidence to help corroborate that he worked the hours that he said he did. Or perhaps the employee has e-mails evidencing unlawful discrimination. Moreover, the employee may be legitimately concerned about defending himself in the event the employer files a lawsuit claiming that the employee never had any right to be in possession of materials he returned to the employer immediately after his termination; if the employee destroys every copy of the computer files and e-mails transmitted to the employer after his termination, how will he have any proof as to what was and was not returned?

If any of these circumstances is present, the employee should (1) immediately return copies of all of the computer files and e-mails in question, and (2) offer to return or destroy his own copies of such information provided that the employer can think of some way in which the employee can be truly assured that such evidence will be available later on for the employee to prosecute his claims or defend against the employer’s claims. If the employee is represented by counsel, he may wish to ask his attorney to draft a stipulation stating that only his counsel will have access to the files and will only discuss them with his client to the extent that it is necessary for counsel to understand the parties’ claims and defenses. If the employer does not agree to such a stipulation, at least there will be a record of the employee having made a good faith effort. And while there is no guarantee that a court would overlook the employee’s failure to immediately destroy all copies of his own copies of the e-mails and computer files, the odds of being punished for preserving data needed to prosecute a claim or defend against a claim is greatly reduced, especially if the good faith steps outlined above are followed.

A former employee has no right to acquire documents or information directly from his former employer unless such information is distributed freely by the former employer. Nor is a current employee free to go digging into his employer’s confidential files to collect information before an impending termination. If the confidential information in question was not in the employee’s possession in the course of performing his job duties, but rather as a result of surreptitiously rifling through the employer’s files, then the employee’s claim may end up being dismissed, and the employee may be held liable for theft.

In addition, if you receive any company related phone calls on your personal cell phone or e-mails on your personal computer, be sure to promptly forward them to the company, and maintain a record of your having done so. If a company client asks you what happened, simply state that you are no longer with the company, and do not say or do anything to denigrate the ex-employer. If a company client asks you to do work for them, you may be prohibited from doing so if you are bound by a restrictive covenant. Further, regardless of whether there is a restrictive covenant, you can be held liable if you persuade a company client to break its contract with the company and hire you instead. (And if the client breaks a contract with the employer and hires you instead, the company may accuse you of having caused the contract to be breached.) Remember, civility can be disarming, even to an employer that has mistreated you. By contrast, needless rancor can cause an employer to dig in its heels and commit vast resources to defeating you in court.

8. TALK TO FELLOW EMPLOYEES. It is easier to learn about a company’s termination and severance policies while you are still on the premises. Find out all you can about what was paid to other employees when they were fired. This information can be quite useful to your lawyer during severance negotiations. For example, if you belong to a

protected class (e.g., are a woman, over 40, a minority, or handicapped), your lawyer can argue that the company violated its policy or engaged in discrimination by not paying you the same rate of severance as other non-protected employees.

9. ANALYZE YOUR FINANCIAL SITUATION. How much cash do you currently have on hand to pay your bills? If you do not have at least a six-month cushion, you should consider planning for the termination by reducing your overhead, bills, and lifestyle. Of course you will be reluctant to do this, but it makes sense to consider an austerity budget before the ax falls.

Speak to your accountant or financial planner for guidance. Experts suggest it is a good idea to pay off large credit card bills with high interest rates while you are still receiving a regular paycheck. Look into refinancing your mortgage and consolidating all your debts for this purpose. Worse, if you live above your means and the chances of being reemployed at your current level of salary may not materialize for many months, you may be forced to sell your house to lower your debt. But selling can take many months, so plan ahead if this is a viable option.

10. FIND SOURCES OF CASH. Think about trying to obtain a cash infusion until you find a new job. One way to do this is to establish a line of credit or taking out a home equity loan. Do this before being laid off, because banks generally don’t lend to the unemployed.

Liquidate long-term accounts like CDs and place ample funds into checking accounts so that you can use the money immediately without paying a penalty. Although you may get less interest, availability should be your concern and you don’t want the money tied up.

Consider borrowing from your company’s 401 (k) plan or IRA’s if applicable. If you are in the process of buying a home, you may want to postpone the decision if you can get out of the transaction.

If all else fails and you have no other possible sources of funds, speak to family members or friends about short-term loans. Consult your accountant to get advice about whether the interest payments on such loans are tax-deductible and how to structure them in your best interest. If you can take out a personal loan from a bank so much the better.

11. SUSPEND PAYMENTS ON LOANS IF POSSIBLE. Some lending institutions will let you suspend payments on school loans and other loans without penalty when you are unemployed. Inquire if this is feasible and whether your future credit will be impaired.

12. START A PART-TIME BUSINESSORFREELANCE JOBNOW. Such a business has the potential of keeping you going after you are laid off and may even expand into your next career.

13. REVIEW YOUR PENSION PLANS ANDRULES. Confirm that the amounts you will receive on termination are accurate. By asking for a current statement, you can ascertain that your years of service are properly credited and that your income is properly reported in the final computation. Now is the time to check for mistakes so you can receive the money immediately after a termination if you need it. Check to see that there is no break in service or that the benefits have not been reduced for technical reasons (e.g., because the company you work for was acquired by another). Ask for copies of pertinent company plans and review what they say. If someone asks why you want this, just say “because I have the right to this information by law.” Write a letter to the plan administrator if you cannot obtain a copy or do not agree with the numbers.

After reviewing and approving the amount, you can compute what your monthly income will be after counting expected pension or profit-sharing monies plus unemployment payments for the first 26 weeks after you are unemployed (and possibly for another 73 weeks depending on your state or federal law at the time you receive such benefits).

14. CONSIDER YOUR ELIGIBILITY FOR BONUSES, STOCK OPTIONS, PROFIT-SHARING MONIES, OR COMMISSIONS ABOUT TO BECOME DUE. Be aware of the date when the money will be vested or when it is supposed to be paid. Do not allow the company to fire you to deprive you of these expected benefits.

15. REVIEW YOUR HEALTH BENEFITS TO BE SURE YOU

ARE PROPERLY COVERED. Your entitlement to continued health and medical benefits under federal COBRA law is discussed in Chapters 3 and 7. But if you anticipate special needs for yourself and your family, or are worried that company supplied benefits may be too costly, it may be wise to shop around for a more attractive policy before you are laid off.

16. CONSIDER SENDING DEMAND LETTERS. Sending demand letters to confirm all actions or complain about illegal treatment may strengthen a legal claim. The time to demonstrate your on-acceptance of a company’s act is before you are fired, not after.

Complaining in writing after a firing may not mean as much and be viewed merely as sour grapes. Examples of sample letters are included in Chapter 9.

If you complain about illegal treatment before a firing, your employer may be advised by its legal counsel not to fire you (since the action may be viewed as illegal retaliation). In some cases, you can save your job or forestall the firing by complaining in writing. This action may also enable you to recover additional damages if you are fired. However, it is best to do this only after speaking with an employment attorney.

17. AVOID RESIGNING. Never resign from a job just because you suspect you are about to be fired. By resigning you may forfeit valuable benefits. I repeat: Do not resign for this and many other reasons (to be discussed in Chapter 8). Seek legal guidance to avoid acting incorrectly or irrationally.

Take It in Stride

Being out of work is not the end of the world. Many clients receiving a severance package with income for a lengthy period and unemployment compensation benefits take precious time off to travel, get in shape, pursue a hobby, go back to school, re-establish personal relationships with family members and friends, re-evaluate their careers, work part-time as a consultant, pursue a job in another field, or start their own businesses (without a boss). Looking for employment is stressful but it can also be an opportunity to pursue your dreams, especially if you can afford not to jump at the first unattractive offer that comes along.

Experts say it’s important not to become discouraged or depressed when looking for a job. Visit a career or outplacement center and speak to a counselor for advice. Join a support group so you don’t isolate yourself. Learn about changes in the job market and how to make yourself a better candidate. Live within your means. Look for bargains and cut back where you can. Network. Assess your situation objectively. Register with a temp agency to ensure a steady source of pay. Release feelings of anger and resentment. Recognize that no job lasts forever. Focus on the future and not the past. Update your resume. Practice and hone effective interviewing techniques. Visit employment agencies in person or via the Internet. Map out a game plan and stick to it. Go to your local library and read books and articles on successful career planning and transitioning. Keep your spirits up. Maintain a good positive outlook. Avoid taking your frustrations, fears and insecurities out on loved ones. Take one day at a time. Trying your best is all you can do.

For a full depth analysis on this topic and many more, visit http://legalstrategiespublishing.com/ to purchase “The Employee Rights Handbook” today!

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