The Soon-To-Be Ex-Employee's Survival Guide

You've just received a disciplinary notice and suspect that a termination letter will follow shortly. What should you do?

First, try to protect your job.

  • Find out what behavior your employer is challenging. Are your sales too low? Do you have too many absences? Have you violated some workplace rule? Check your employee handbook and see if there is a rule or policy that prohibits the behavior or sets standards for the conduct. If the reasons for the disciplinary notice are not clear, ask your supervisor or human resources representative.

  • If the allegations are untrue, unfair or unclear, consider making a written response. But do this only after you cool down — and if you believe that illegal discrimination or retaliation are involved, preferably after you've consulted with a lawyer. If you respond, state facts, not opinions, and above all be 100 percent accurate.

  • Find out from your employee handbook if your employer has a progressive discipline policy and, if so, whether it's being followed. If there is a grievance or appeal process with regard to the disciplinary notice, use it. Maybe you can turn things around or, if not, buy some time to plan for your exit.

  • Stay cool. If your boss fired you because of your race, gender, age or some other illegal reason, there is a good chance that you can get your job back, or at least get damages for back-pay. If you punch him out, or even let loose with a torrent of curse words, you will have just provided a legitimate reason for firing you.

Second, try to protect the evidence.

  • Document what happened. Get and keep copies of reviews, disciplinary notices, commendations, and other "official" employment actions. Request a copy of your personnel file, if your employer will give it to you; if not, ask to review it and make a list of every document it contains and detailed notes of the contents of any significant documents. Sign and date your list when you are through and, ideally, have someone else sign as a witness to your signature.

  • Keep a diary for important events, with dates, times, location, people present and what happened — but not on your office computer or the laptop the company is going to take back immediately if you are fired. Do not secretly tape record any meetings or conversations. In Florida and some other states, tape recording a person's conversation without permission is a felony. Obtain copies of the employee handbook, policies that may relate to what has happened, training materials, and any other relevant documents that are not confidential. Do not under any circumstances take any documents that your employer considers confidential or to which you are not entitled.

  • If you are a union employee, demand that a union representative be present at any meeting with management that could lead to discipline.

  • Learn as much as you can about your employer's internal email system, including backup procedures. Do the same regarding other computer programs that may contain data relevant to your employment such as sales records or samples of your work. Find out if your employer has a records retention policy and, if so, what it is. You'd be surprised (or maybe you wouldn't) at how many documents relevant to employment claims get "lost" or are destroyed once an employee files a lawsuit.

  • Don't lose the "smoking guns." Print out the lascivious emails your boss sent you and keep them in a safe place away from the office. Or, better yet, forward them to your home computer (or, if you do not have a home computer, to a friend's) so that your lawyer will be able to access the "meta data" — electronic fingerprints, showing such things as who created a digital document and when. If you're offered a severance agreement that contains a release of every kind of employment claim known to humankind, be sure to keep it (but don't sign it or you'll have no lawsuit). Take pictures of offensive objects or pictures or signs in the workplace if relevant to your situation.

Third, protect yourself.

  • Realize that getting fired is one of the most traumatic things that can happen to a person. It's right up there with death and divorce on the stress-inducement scales. It's normal to be scared and depressed and not to know what to do next. If you have insurance that has mental health coverage, use it. If you don't have insurance coverage, check for sliding scale mental health services in your community. Find somebody other than a bartender to talk to about how you are feeling. You'll do better on job interviews if you're not terminally depressed. You don't want to add to your problems by having your marriage or relationship stressed to the breaking point.

  • Apply for unemployment compensation, if you are eligible, as soon as possible because it may take several weeks for benefits to start. Florida unemployment compensation claims can be made directly over the internet. When giving the reason for your termination, say it like this: "My boss told me that I was fired because." If you put "downsizing" when you think the real reason is age-discrimination, you may have to do some explaining it you file a lawsuit. Quoting the reason that the employer gave eliminates that problem. If you were falsely accused of doing something wrong, for example, stealing, make sure that you specify on the unemployment firm that while that may be what your boss said, it is not true (e.g., "My boss told me I was fired because I misused the company credit card, but I did not do that.")

  • Begin looking for a job and document your efforts. If you file a lawsuit, you will have to prove that you did everything possible to "mitigate your damages" — or, in lay terms, minimize your losses. Save the letters you send and receive as part of your job search. Log the phone calls. Keep the want ads with your scribbles and spilled coffee on them. Print out the online postings and applications. Also, keep in mind that the resume you use and applications you fill out may end up as evidence in a lawsuit. Be scrupulously honest and don't "fudge" even a little. The same goes for job interviews: do not volunteer that you were fired, but it asked, tell the interviewer what happened — with your spin on it. Employers love to point to a "padded" resume as conclusive evidence that the former employee who is suing them for discrimination is a liar. And if your new employer learns that you lied to get the job, you may get fired from that job, too.

  • Surf the net for help. The National Employment Law Project, for example, has a great site outlining resources for unemployed workers. The AFL-CIO also provides information on what to do when the paycheck stops. So does Beehive.org.

Finally, contact us to see if we can help you.