Thanks so much for checking out my new blog. I’m looking forward to sharing the latest developments in labor and employment law with you—so I can help you “fire back” against unfair employers who try to take advantage of you. As my inaugural blog post, I want to discuss how to handle one of the toughest moments in your work life—what to do when you’re fired. It can be a horrible time in your life, but there are things you can do to make it less horrible. Here are the top ten things you should do when you have been fired, or know you are about to be fired.
- You Have the Right to Remain Silent—So Shut Up
You’ve no doubt heard that when you’ve been arrested, you have the right to remain silent. You also have the right to silence when you have been discharged, so keep quiet. If you are discharged in a meeting, it’s generally best to say as little possible because anything you say—such as admitting that you made the mistakes they may be accusing you of—will be used against you if you later bring a legal claim against the company. Also, try hard not to talk to your former co-workers—although they may seem friendly to you, in most cases their loyalty will be to the company, not you, and what you say may get back to the company. If you have a response to your discharge, you can always do so at a later date when you have the chance to organize your thoughts, review your documents, and then you can address all of the issues in a calm and thoughtful manner. Of course, in most cases the best way to respond to a discharge is through an experienced employment lawyer.
- Don’t Trash your Employer
When most employees get fired, they generally don’t have the most positive things to say about their employer, and many don’t hesitate to share these negative feelings with their friends, family members, and even the public, through Facebook posts or blog entries. If you can at all resist this urge, do so; don’t trash your employer. If you say something negative and untrue about your former boss or company, it could subject you to the possibility of a defamation lawsuit, which the employer could bring against you as a counterclaim if you later file a lawsuit. Even if what you say is absolutely true, in most cases it’s not going to help you, and if prospective employees see that you are making negative statements about your former employer, they may be less likely to want to hire you for fear you will do the same to them down the road. Plus, anything you say could be used as evidence against you—for example if you start blasting your former employer on Facebook but don’t say anything about the fact that you were sexually harassed while working there, the employer will later argue that because you didn’t complain about it, it didn’t happen. Save your negative feelings for your lawsuit—they are absolutely privileged and can’t get you into trouble if you make them in a lawsuit.
- Don’t Trash your Employer’s Files
In addition to not trashing your employer, don’t destroy any files—whether paper or electronic—on your way out the door. It is illegal to destroy your employer’s property—and that includes any computer files you have on your work computer. Remember, every document you work on, and every email you send and receive, from your employer’s computer system belongs to your employer—even your personnel emails. If you destroy them, and even in some cases copy them, you could be in violation of any confidentiality agreements you have with your employer, in violation of state trade secret laws, and you could be committing a federal crime. Like the forest, leave your computer as you found it. If you have some personal files that you want to take with you, talk to the IT department and get a written agreement that you can copy the files and take them home with you.
- Request your Personnel File
In Illinois, the Personnel Record Review Act gives you the absolute right to receive and review your personnel file for a period of up to a year after your discharge. So, immediately after your discharge, give the human resources department a written request to review your file. They have seven business days to get it to you—although most employers drag their heels a bit. Don’t back down if the employer resists your request. You have an absolute right to see your file and if they don’t comply you can file a claim with the Department of Labor.
5. File for Unemployment
In most cases when you are discharged, you are entitled to unemployment compensation. In general, if you are fired for misconduct, such as insubordination, drinking on the job, or other types of intentional bad behavior, your employer can protest your claim. But if you were laid off due to lack of work, or if you just weren’t meeting your employer’s expectations, you are entitled to unemployment. File with the Illinois Department of Employment Security (you can go to a local office or do it online), certify for your benefits as instructed, and keep track of your job search. Even if you are initially denied unemployment, you have the right to several appeals, so keep trying.
- Make a Full Time Job of Looking for a Job
Of course, most of us aren’t independently wealthy—that’s why we’re working in the first place—so most of you will not need to be told to start looking for a job when you get fired. But there are important reasons to look for a job besides getting back to a regular paycheck. If you are not looking for a job you can be denied unemployment. Furthermore, if you bring a lawsuit against your employer—such as a race discrimination suit for your discharge—the law requires you to do what’s called “mitigate your damages.” That means if you want to claim lost wages or back pay in a lawsuit, you have to show that you made a genuine and diligent search to find work. If you do that, and can support it with documentation, then you can claim that you tried hard to find a job but could not do so, and you will then be eligible to claim damages.
- Gather your Documents
If you have documents related to your employment at your home or your personnel email, start gathering them. Get all your emails together, all memos, letters and other documents you received during your employment, and any notes you may have taken. Also, if you are contemplating taking legal action against your former employer, you may need other documents down the road to support your case, such as your tax returns and job search records. Gather all this together so you can use it for your case, or give it to your lawyer. Also, be careful not to delete any emails in your possession that you think may hurt you. If you get into a lawsuit, your employer has the right to electronically inspect all of your devices—your phone, your personal laptop, and your Ipad; and if there is any evidence that you deleted information that may have been relevant to your case—and this is very easy for employers to figure out—you could be guilty of intentional destruction of evidence—called spoliation. Even if your case is a good one, if you are guilty of spoliation you will most likely not only lose your case but you could be subject to sanctions from the court.
- Consider Filing a Discrimination Claim
Most employment discrimination claims have very short statutes of limitations—under the Illinois Human Rights Act you only have 180 days to file a claim, and even the deadline for the EEOC (in Illinois) is 300 days. Accordingly, if you believe you have been discriminated against, and you haven’t had the chance to speak to an employment lawyer yet, consider filing a claim on your own. You can contact the EEOC or the Department of Human Rights and they will schedule an appointment for you to do an intake session and then they will file charge paperwork for you—and it is absolutely free of charge. If you are near the deadline, file the claim first. If you hire a lawyer afterwards, your lawyer can file an appearance and represent you in the case.
- Be Extremely Cautious on Social Media
Social media is the hottest battleground in the employment world. Employees’ social media life—their tweets, Facebook pages, and Instagram photos—are all treasure troves of evidence for your employer to later use against you. One common situation is the allegedly injured employee who posts his Cubs game pictures on Facebook. If the pictures are public, and your employer sees them, they can fight your claim that you were too disabled to come to work and fight your claim for unemployment. If you must use social media, don’t trash your employer, use the maximum privacy settings, generally avoid being friends with your bosses and other people from the company, and don’t accept friend requests from strangers—they could be representatives of your employer trying to spy on you.
- Contact an Experienced Employment Lawyer
As you can see from this list, there’s a lot to do—and a lot not to do—when you get fired. It’s often helpful to have an experienced employment lawyer in your corner. Since most employment lawyers will provide a free initial consultation, it certainly can’t hurt to schedule a consultation to see if you have a claim that’s worth pursuing. As most employment lawyers handle these cases on a contingency basis—meaning you only pay fees if you win—if an attorney is willing to take your case, it’s a good sign that your case may be a strong one.
There are of course a lot of other issues to consider when you get fired—and I’ll be covering these items for you on this blog. But if you start with these top ten things to do when you get fired, you should be in good shape to maximize the value of your claims against your former employer.