What Steps Should I Take if I was Wrongfully Terminated, or Demoted or had some Other Negative Employment Action Taken?
I. Get Legal Advice from an Employment Law Attorney
If you think you are about to be fired, face a demotion, or other negative employment action,* there may be nothing you can do, but fortunately there may also be plenty. Getting legal advice from an employment law attorney is number one in many if not most cases. You should also consider improving communications with your manager, improving job performance, seeking professional counseling, and even getting help from the Human Resources Department (HR) may be advisable. These steps are especially true if you are at the warning or “write-up” stage, if you have gotten a negative job evaluation, or know that you are having difficulties at work. Remember that HR works for the Company, but part of its job is to help a valued employee and to follow the law.
* Examples: change in pay, conditions of employment, title, direct report, hours worked
II. Know Your Rights
On the legal front, you need to know your legal rights. First, do you have a written agreement with rights already in place? High-level employees usually have written contracts, which may have severance provisions, and even those terms often are open to further negotiation. Union members operate under collective bargaining agreements and you may get help there. Written agreements may spell out termination provisions. Other compensation may come under the Wages Act. There could also be company handbooks with important policy statements, appeal or grievance procedures, and internal practices that you should check and follow that are best done after consulting an employment attorney. Sometimes handbooks have been written to be considered as contracts.
III. Employees-at-Will May Be Fired Subject to Laws, Document Discrimination
With the exceptions mentioned above, most other employees are considered under the law as employees–at-will. This legal term means that, with certain very important exceptions (e.g. categories of possible discrimination, many of which are discussed below) you may be dismissed for any reason or no reason at all. Currently, workers do not have a right to sue over miserable treatment or difficult work situations (with some exceptions), although legislation has progressed that will make bullying, etc. unlawful. Some people mistakenly think that having a miserable boss or getting yelled at by itself constitutes a hostile work environment claim. It can arise to a claim in some situations, but not always, so you should consult an attorney about the circumstances.
Since each fact situation is different, it is important to consult an experienced employment attorney.An employee who thinks that the company is violating his contractual rights, the Wage Act regarding payment of compensation (see below), and/or his rights against employment discrimination based on age, sex, sexual orientation, sexual harassment, hostile work environment, race, religion, or ethnic background/ancestry should document all interactions with their employer (manager, fellow employees, and all witnesses). Take careful notes concerning what was said, by whom, as well as the date, for any comments that indicated a bad attitude toward you and unfair treatment (i.e. different from the treatment of other employees). Perhaps you were treated worse than others who are of a different age, sex, race, or even ethnic background. Such notes or an account going back as soon as you can to reconstruct past events will be very helpful to your lawyer. Sometimes comments are subtle but show “an attitude.” When certain actions are compared with certain comments, discrimination can be "inferred" or the natural conclusion to be drawn. You also should document how you felt and any physical or psychological impacts that have arisen from it, such as trouble sleeping, eating, bad mood, and if you are depressed. If you have not done so, but plan to get an attorney, some suggest that you direct those notes to the attorney and the communication will be protected by attorney-client privilege.
IV. Duty to Seek Work, Keep Records, Get Help, and Apply for Unemployment Insurance
Once fired, take certain steps immediately – Duty to Find Another Job, “Mitigate Your Losses,” Keep Records or Start Your Account of What Happened and How it Affects(ed) You, Get Help, and Apply for Unemployment Insurance. You can consult our office for more detailed suggestions, but you have a duty to find another job and not doing so gives a defense to money damages that you might seek so starting the job search and documenting it is essential. Keep records of all your efforts – email, resumes sent, letter, etc. Get books from your library on job hunting. Richard Nelson Bolles’ What Color is Your Parachute? is a classic updated for the internet age.
Apply for unemployment compensation. Sometimes employers will not contest it and if they do and you can show wrongful termination, you may receive this important income benefit. While proof of emotional distress by an expert, a psychologist or psychiatrist, is not required, it can both help you deal with the stress of job loss and feelings arising from the humiliation and loss connected with acts of discrimination. The main reason you should seek it, is to help with any psychological issues, but this will also help prove emotional distress damages. Keeping records of the effect of the emotional distress on your life, particularly of any side effects of depression, loss of sleep, anger, diminished enjoyment of various aspects of life, and stress on relationships will help. Go back and fill in all parts of the events journal that you may or may not have had time to completely document, during earlier periods regarding the acts of discrimination.
V. 2010 Massachusetts Personnel Records Law Amendments: Notification Requirements for Unfavorable Reports
A 2010 amendment to the state's personnel records statute, G. L. c. 149, §52C, requires employers to notify employees when an unfavorable report is added to their files within 10 days “to the extent that the information is, has been used or may be used in a negative employment action or decision such as disciplinary action." If you receive such notice, you should take some of the steps described above and consult an attorney. At our office, we will be happy to advise you in more detail about steps that you may want to consider. You have certain rights to view your personnel records and should discuss those with an attorney.