What to Do If You’re Fired


Winthrop Hubbard joins in on the first of a three part series on EEOCIf you’ve lost your job, or if you’re about to lose your job, here are some quick action items.

  • Don’t sign anything. Your employer may offer you a severance agreement. It will likely be three to five pages long. Here’s what the gist of it will be: “If you sign this, we’ll pay some money, and you will give up your right to sue us for pretty much anything.” Depending on what the circumstances are, it may be advisable to take the deal.But, it is also possible that your employer is trying to buy you out on the cheap. At the very least, with some negotiation, you may be able to get a more favorable agreement—for instance, to include a positive reference—even if the total money doesn’t change.
  • Don’t do anything stupid. For instance, don’t take a bunch of confidential documents or do anything that the company can use against you.
    • As for documents, it is certainly fine to print your e-mails and communications. Just don’t go into areas that you are not supposed to have access to and take documents: this includes computer databases to which you are not permitted to have access. If there is evidence that you think will be important to your case, just note what and where it is. Your attorney can ask for these items in discovery.
    • Don’t break things. I once had a client who, with glee, put her company-issued BlackBerry under her car tire and pulverized it. She then told some of her friends at her job about it. It took only a short game of telephone for this story to make it to the company’s general counsel, who promptly called me. Luckily, we still got the settlement done. I say luckily because there is a nifty bit of law called the “after-acquired evidence doctrine,” which provides that an employer will avoid liability if—after it fired you—it finds out something for which it would have fired you if you were still on the job. Intentionally running over company property is a terminable offense just about anywhere. Even if the company had violated the law in some other respect, it could say, “Okay, okay, maybe we fired her for an improper purpose, but we definitely would have fired her for running over that BlackBerry, which is worth all of thirty dollars.” On this basis, the company could not get completely off the hook, but it could mean that a court would find that you are not able to collect any back pay or front pay, which are often the biggest money damages in an employment case. So, keep your powder dry. The company may have stepped in it by firing you. Don’t let anger would let your boss off scot-free.
  • Do some homework. Hopefully, you have the impulse to go see an attorney right away. That’s good. There are worse things than talking to an attorney before the ink is even dry on your pink slip. But you likely have at least a couple of days before you have to do anything. I recommend you use that time to get a sense of what kind of case you might have—and what kind of case you don’t. There are lots of resources you can turn to:
    • Our book, “You’re Pregnant? You’re Fired!” for one.
    • There also are many good blogs and websites. The EEOC (at http://www.eeoc.gov) has a lot of good basic information written for non-lawyers about employment law. Nolo (http://www.nolo.com/) is a fantastic site for all kinds of non-lawyer-friendly information about your rights, including those related to employment.Your Rights in the Workplace, by Barbara Kate Repa (available through Nolo), is one of the best “Cliff’s Notes” versions of the law that I have seen. After you’ve scratched around a bit and have at least an overview of employment law, then go see a lawyer. Why take this step if you are going to see an attorney anyway? Because it will help you maximize your time with the lawyer. While the attorney knows the law, no one knows the facts of your case better than you do. It is possible that an attorney could miss an angle of attack that occurs to you as a possibility while you are conducting some of your own research.
  • Go see your doctor. If you are experiencing negative health effects as a result of the stress of your termination, go see your doctor or a therapist. It can only help your case. Emotional distress damages are a part of many employment cases. You don’t need a doctor to testify to get compensated for this, but you’ll have a much better shot if you have someone with a PhD behind his or her name testify on your behalf. This is not the time to play it tough. Your ability to receive emotional distress damages is directly proportional to making a judge or jury understand what you went through. Your doctor can help with this. Yes, you can do this at any time in the litigation, but chances are that consulting a doctor will be most productive when everything is fresh.
  • Ask for plan documents. If you have a benefits package, send a written request to human resources for your “plan documents.” In the letter, ask human resources to let you know who the “plan administrator” is so that you can direct your request there. Why? The short answer is that your employer (or plan administrator) is likely obligated by federal law to give you those documents. Sometimes employers/administrators screw this up. If they do, it can give you another point of leverage in negotiations or litigation. But you don’t get that chance if you don’t ask.
  • Be careful who you talk to at work. People make friends on the job. Some are true friends, and others will turn out to just be “friends.” Think carefully before you share with a colleague potentially sensitive information, such as, “I’m going to sue these bastards for all they’re worth. STOP. I’ve seen it happen more than once that a work “friend” of client later showed up to testify on behalf the bad guy employer. Guess they’ve got to pay that mortgage, right?