What should you do if you think you’re going to get fired?
In this day and age, people are become more and more concerned about their job security. Even when the market was good, the last thing you want to see happen or have happen is to find yourself in a situation where you think you are about to get fired. Now, there is a difference between getting fired or laid off. When you get laid off, it’s usually due to some type of financial decision that was made by the employer in an effort to reorganize or save cost (Unless you think they are just saying that to get rid of you and that’s a whole different topic).
Usually, when you think that you are about to get fired, this situation usually occurs as a result of some type of ongoing tension between you and your employer. This tension can not only be distracting but also upsetting. The last thing you want to do is find yourself in a situation where you think that someone is going to drop the hammer on you.
Unfortunately, when people find themselves in this situation, their first instinct is to try and figure out a way to keep this from happening. Doing this can be tricky because you literally don’t know what the employer is thinking so it’s kind of hard to take any proactive step to stop this from happening.
But don’t think you’re completely helpless. You can do a few things to keep YOU on your game so that you don’t make your situation worse:
1) Is your employment unionized?
In most instances, if you are in a ‘union shop’ (i.e. you are a member of a union), the union representative is your best resource. If you think the hammer is about to drop, I would be quick to tell you to go and speak with you union representative. The reason I mention this is because invariably if there is a grievance procedure to go through, you will have to go through that first if there is any type of collective bargaining agreement in place.
2) Be careful of WHAT disciplinary actions may come your way.
You have to be mindful of any additional disciplinary actions. If you find yourself getting written up for things, make sure you take the opportunity to read what the allegations are. Most employers give you the option to ’sign or not sign’ and in some instances, you may have the ability to write a rebuttal. In any event, you want to be careful about any ‘additional disciplinary actions’ that appear to pop up from no where (especially if you’ve never had any problems in the past).
3) Keep an eye out on the BEFORE and AFTER!
What is your employment track record? If you’re an employee who has never been written up and gets great evaluations, you are probably going to be a bit concerned when you start noticing an increase in negative evaluations. Pay attention to how soon these ‘negative evaluations’ occur and more importantly, pay attention to the timing of these evaluations.
4) What type of state are you in?
Meaning are you an AT WILL state which means the employer can fire you for any reason or no reason (as long as it doesn’t violate any clearly defined law i.e. based on race, gender, age, etc.).
5) If this place is not a union shop (i.e. has a union) and you are what is called “RIGHT TO WORK” state, you need to be careful.
If you find yourself getting ‘verbal communications’ about things that you should do in an effort to improve your situation, you should a nice letter to the employer summarizing the content of these meetings and your understanding of what they want you to do and WHY they want you to do it. You should emphasize the facts (not the emotions) such as NO indication of corrective action (if that’s what happened). Be careful because when you start documenting, the employer will think you’re up to something but THIS POINT forward, you needs to be documenting everything.
6) Be SMART.
It’s amazing how GANGSTA people get when they think that someone is about to bring the heat! It’s even further magnified when they believe that they have had a reputation and livelihood effected. Be careful about being a pistol. The law is fairly clear that if the employer has a ‘personality conflict’ with an employee, this is different from discrimination. An employer may be able to put the heat on you for not getting along. You don’t want to do anything to trip over your own feet. I’m not saying you can’t be vocal about anything that may be illegal but you have to be careful not to come off as the unruly employee who is not trying to work with management to improve.
7) If they are going to let you go, there may be nothing you can do
Absent some express contractual provision or a provision in a union collective bargaining agreement, you may not be able to STOP an employer from you. You can possibly sue to get your job back. You can sue for damages. However, if they decide to let you go, that’s’ it.
IF you get fired, file (if you thinks you’ve been discriminated) right away.
The moment that the adverse employment action, you will have 180 days to file with the EEOC (I don’t know what the time line is for most states for a similar state action) but you don’t want to wait.
9) Don’t expect your co-workers to automatically have your back.
In an employment setting, when it’s a choice between your job and your friend, your Worker FRIEND will probably choose their job. Even though employers are not permitted to retaliate against an employee for participating in a situation like this, employees may still run scared because they don’t want their employer looking at them crazy.
10) GO TO A LAWYER!!!
Sometimes, lawyers can do certain things that may put the employer on notice that they better chill out if they are doing something potentially illegal. However, it’s important that you take the opportunity to speak with an attorney so you can understand and appreciate all of your options.
Let me be the first to tell you that there is nothing sexy about being in a position where you are worried about the financial well being of your job. With all of the stresses that you deal with in your day to day life, the last thing you want to have in front of you is a situation where you are freaking out about the possibility of losing your job. Be smart. Most importantly, if the climate of your job has changed, you may want to think about changing the weather. I know it gets kind of crazy when you’ve been in a job for a number of years but in the end, your sanity is much more important than a paycheck.
Whether you are a BALLER or A SCHOLAR - Play it smart: There are ALWAYS 2 sides to every story!
I have a good friend who went to graduated from law school with me who ALWAYS throws out this famous line: “There are ALWAYS two sides to every story!”
Now, this line is not anything special because it’s been used over a million times but I am ALWAYS amazed at how quickly she throws out this comment when something racially or emotionally charged comes rushing out. However, she’s making a powerful point. And NOTHING more powerful than when the police are involved with a particular situation.
What I have found in this Twitter / Facebook / Myspace / Diggs Rennaissance community is that we are always swamped with snap shots of situations but not necesarily the who picture.
Right now, front page is the arrest of noted scholar Henry Louis Gates. Dr. Gates is a powerfully educated scholar who is African American. Dr. Gates was arrested on his own porch after a highly visible confrontation with a police officer. Instinctively, this arrest defies logic on its face.
But I want to take an opportunity to use this example of how you can find yourself in a unique situation and how that situation can be seen in a variety of different ways. While I do this, I want to draw a comparison to Dr. Gates’ arrest to the NFL Player who was stopped at a routine stop while rushing to see his dying mother in law:
1) Recognize, some people may not KNOW who you are. I am not saying that anyone should receive preferential treatment for their actions. However, we as individuals will some times give deference if we are familiar with the person we are dealing. It is important to understand that in some instances you may be dealing with someone who does not know who you are NOR do they care.
2) KEEP COOL! Even though we don’t know all of the facts regarding Dr. Gates, we do know that there was a confrontation. The best thing about the NFL player situation was that a video camera taped the whole incident. In the player’s situation, even though he was getting upset, he didn’t lose his composure (and he had a right to). The player sat there and took that ticket KNOWING that his mother in law dying (that was a real moment where most of us would have probably clicked).
3) Remember the TOTALITY of the circumstances. So many times, we focus on one small aspect of a situation and we MAGNIFY it. However, when you factor in everything before and after that moment, that one small aspect appears SMALL! Remember, your actions before are just as important as your actions during and AFTER the fact!
4) Your power is based in your ability to remain CALM and COLLECTED! So many times, people are put in the position of wanting to ‘get gangsta’ or ‘click’ but people don’t appreciate how powerful it is for you to ‘maintain your composure’.
5) Always look at the OTHER side! Can you justify what someone else WOULD have done? Take your emotions out of situation and take a moment to logically look at a situation. Sometimes, we get so fired up after a situation presents itself that we don’t look at the worst case scenario and determine if we would deal with the scenario as the other person did.
Now, I am not justifying the action of the police or the actions of Dr. Gates. I am merely pointing out that with any situation, it is important to look at the overall scope of the situation before rendering any type of opinion. We are all educated so continue to allow your self to be educated about a situation.
Timing may not be enough
When you are terminated from your job or experienced some form of adverse employment action (whether it be demotion, disciplinary action, or hostile work place), you may take at the possibility that these actions may be in response to something else.
In other words, if you have done something you were legally permitted to do or you are a member of a protected class (i.e. race, sex, age, etc.), you may consider the possibility that you were retaliated against by your employer.
However, retaliation is sometimes very tough to prove. The first portions of the analysis may be easy. Part 1 may require you to demonstrate that that you were conducting an activity that was legally protected (like participating in an investigation or refusing to do something illegal). Part 2 may require you to demonstrate some adverse employment action (like getting demoted or fired). Those two parts are usually the easiest. The hardest part is the last part where you must demonstrate that there is a causal link between the two. Now, after you’ve laid out your theory, the employer has the chance to come back and say “Hey, I had a legitimate reason for doing what I did”. Then, the ball is back in your court. You have to prove that the employers actions were pre-textual. In other words, you gotta show that the adverse employment action was done in an attempt to retaliate against you for your actions.
One thing that courts may take into consideration is timing. In other words, courts will look at when you did something and how soon after the action did the adverse employment action occurred. Alot of times, people get pumped up because they think that if something bad happens within a short period of time, this information will solidify their case and slam dunk the employer.
However, you gotta keep a few things in mind when looking at timing:
1) The longer the time, the tougher the case. The longer the time period elapses between the protected activity and the adverse employment action, the more difficult it is to prove a causal link. In other words, if you complain of sexual harassment in 2002 but nothing happens to you until you get fired in 2007, you are going to have a tough road to prove the complaint is tied to the firing.
2) You better keep clean. If you were a problem child before and the employer documented this before and they continue to document that you are a problem child, you may have a hard time distinguishing between the employer’s retaliation and the employer merely documenting your behavior.
3) No magical time. Always remember that timing is added factor that courts can consider. however, timing is not enough by itself to automatically slap culpability to the employer. it can be extremely persuasive but it is NOT an automatic win.
It’s important that you take the opportunity to talk to your attorney before moving forward so that you can get a true appreciation of how ‘timing’ may play a role in your case. You don’t want make too much out of your situation if there is really nothing there.
It’s hard to separate your JOB from your LIFE
One attorney once told me that “employment law is the most PERSONAL law you will ever deal with!”. Interestingly so, he was right.
When you go to work, you are not merely ‘punching a clock’ as you would like to believe. Your job and your ability to do your job has a profound impact on you personally, professionally, emotionally, and psychologically:
1) Personally! Face facts. Your job is responsible for a great many things that are related to your life. Your job pays your bills. Your job puts clothes on your kids backs and puts your kids through college. You can’t drive a car without gas and you can’t have gas without money. It is a necessary part of your existence.
2) Professionally! One attorney once told me “You spend a lifetime developing your reputation and you can lose it in 60 seconds or less!”. We all take our jobs personally but we take greater pride if the reputation we establish for ourselves. If we are good at what we do, we take pride in the world knowing it.
3) Emotionally! Anything that happens to your job, happens to you and your family. If your company is going bankrupt, you are not put in the position of wondering what the future may hold for you. You will be stressed. You will be anxious. You will be scared.
4) Psychologically! If something happens to you AT your job, you can’t merely walk away from that feeling. Think about it, you spend 40 hours a week in front of the same people. So if your boss rights you up or a co-worker cusses you out, you can’t just write them off. You have to see those people tomorrow. More importantly, those feelings will linger as long as you are there.
So you can imagine the power and concern when you find yourself in a position where you have been terminated or let go. This single event is the most devastating event in most people’s lives. No one wants to go through the situation of being ‘let go’. The simple fact of the matter is that we are all control freaks to a degree and NO ONE wants to leave a siuation on terms other than their own.
So you can imagine how all of the things that I mentioned above could come into play. You now have to figure out how you are going to pay your bills. You now have to figure out how you are going to find a new job. If you are terminated, you wonder if it is because of you or something that you have done. Now, you wonder how other employers will view you being terminated.
A million different emotions go running through your head. What’s even worse is that when you have to leave, it may not be a sexy leave because there are some predisposed thoughts that you may have floating through your mind:
1) Computer. Let me tell you something. If it’s personal, don’t put it on your computer. The simple fact of the matter is that your computer is your COMPANY’s computer. So you don’t want to have this misguided thought that you are entitled to get your information off of your computer. Because in reality, the computer is NOT yours!
2) Employee File. Check the laws in your states but some people have a sense of ‘ownership’ when the employer maintains an employee file. As an employee, you think “Hey, it’s my information about me! Why can’t I have it? It’s MY employee file!”. Back up a second. Depending on the state, these ‘employee files’ are merely kept as a means to maintaining records about you and your activities with the employer. In essence, the employee file is the property of the EMPLOYER! Think about it like this, if employers knew that they had to give their employees the employee files, they may not maintain them. Why? If you ask for your employee file, what are you REALLY looking for in the file?? That’s right! Something that you can use against the employer, if possible. Don’t suck your teeth. You know what I’m talking about!
3) Employee Friends v. Friends Friends. I know that sounds crazy but so many times, when we leave our jobs in a ‘blaze of glory’, we think that those same people who we used to ‘vent’ to about our jobs will be our biggest allies if we need them. Hey, I hate to be the bearer of bad news but we are in a tough economy so you just can’t predict what an employee will do. And you can’t hold it against them. Friends are friends but business is business. They have the same families to feed like you so they may have to make the tough decision to not put themselves out there.
Understand this, my friends, jobs are tough and our connections to our jobs are even tougher. In this tough economy, alot of us are finding ourselves in the position of having to determine what we need to do in order to survive. I know it’s hard to separate one from another but you must in order to move forward.
Employers DON’T just ROLL OVER!
What I find amazing is the number of people who believe that companies or employers will simply ROLL OVER and pay money when faced with the possibility of a discrimination law suit!
Part of the problem that most people don’t understand is that when a Plaintiff is deciding to sue, the Plaintiff’s decision is usually motivated by emotion and finances based on a perceived (or actual) damage that they have sustained. However, the decision to settle or fight the law suit on the part of the Employer or Company (i.e. Defendant) may be based on a purely Business decision. The decision may be guided by the evidence relied upon, the likelihood of the company losing, the cost to litigate the case v. the damages involved or the company’s position on these types of cases.
1) The evidence relied upon. Some employers will first take a hard look at the evidence involved. If the evidence appears to be strongly in favor of the plaintiff, employers may make the decision that it’s to their advantage to settle the case and move forward.
2) The likelihood of the company losing. Going to court is like rolling the dice. No matter how much of a streak you have going, you can always roll an unlucky hand. If a company feels that they have a pretty good chance of losing, they may not fight a law suit.
3) The cost to litigate the case v. the damages involved. Recognize this, most Plaintiff’s may be able to hire an attorney on a contingency or partial contingency basis. However, when an employer gets an attorney, they may hire a heavy weight law firm to represent them. Getting a heavyweight firm may mean paying between $250 to $500 per hour for an attorney to review the case, evaluate, conduct discovery, conduct depositions, prepare for trial, and go to trial. And trust me, everything I just listed is about a good 20 to 30 hours worth at a minimum (At $500 per hour, that’s $15000 right out the gate). So if a company can settle a case without having to pay a HUGE amount in attorney fees or risk the possibility of having to pay their attorney, the Plaintiff, and the Plaintiff’s attorney, they will settle and move on.
4) The company’s position on these types of cases. Some employees don’t realize that some companies take a DIE HARD position against law suits. They don’t care if you’re fighting for $300 or $300,000, they will fight everyone “TOOTH and NAIL”!
So many times, plaintiffs believe what their peers tell them about a company. They compare their case with others who have been successful and get excited by the possibility of getting a quick settlement from a supposedly “Soft” employer. Just remember, with the employer, it’s ALL about BUSINESS, Baby, so NEVER take for granted that an employer will just simply ROLL OVER for no reason!
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