by Don D. Sessions
Employee Rights Attorney
Mission Viejo, California
Greg Buckner enjoyed working at the same company for 13 years, at least until he got a new supervisor. Then he was subjected to a regular pattern of racial comments, epithets and slurs. Finally, he was falsely accused of a minor theft and then fired. Fortunately, he was able to prove his case in court and ultimately recovered $122,500.
Sharon Maxwell worked at a convalescent hospital until she complained about unlawful abuse and neglect of the nursing staff. She was able to win her lawsuit worth more than $1.6 million.
Bruce Heverly was not so fortunate. He sued his employer for breach of contract and wrongful termination. After almost three and one‑half years of litigation in his attempt to prove his case, the jury not only decided for the employer, but also made Mr. Heverly responsible for their attorney’s fees of $116,000.
Why are some employees successful and others not? There are certainly many factors which determine the likelihood of success, including the extent of your damages and the willingness of your employer to cooperate in a settlement. However, the most important factor is whether or not you can prove in a convincing manner that your employer really did something wrong.
Facts of a particular case may be undisputed by the employer. The problem may be with different interpretations of the law. Often, however, a dispute does involve conflicting interpretations or versions of the circumstances of a dispute supposedly leading to liability. Here are some ways to prove your case or to show that your version of the facts is more credible.
1. Your Word Against Another’s
Don’t be discouraged if it’s just your word against that of another. This may mean that you have a 50‑50 chance of convincing a judge or jury. Many people will believe the word of a common employee before that of a supervisor or of an employer. This might very well be good enough.
2. Prove Only What You Need to Prove
Every claim has certain elements that must be established in order for you to win, at least in court. Concentrate on those factors instead of others that don’t make any difference.
The employee handbook is the bible by which your actions should be governed. Know your own commitments and responsibilities, as well as those of your employer. See if they have violated their own written policy. Look particularly for promises of the employer regarding at‑will policy, fairness, progressive discipline, equal opportunity, “bumping rights,” and evaluations.
4. Supervisor’s Manual
A supervisor’s manual may set forth discipline or a termination procedure not otherwise contained in an employee’s handbook. Compare the stated procedure of the company with their actions in your situation.
5. Policy Memoranda
In addition to the supervisor’s manual and they employee handbook, these documents relate company policy. Ask the Human Resources Department for past copies. Match the policies with the company’s actions.
Evaluate the practice of the company in terms of its own actions with its stated policy. Your employer’s policy is often established through dealings with you and other employees in the past.
7. Performance Reviews
Did your employer promise to give you input? Were you to be given an annual review? See if your reviews are inconsistent with any disciplinary action taken against you. The blame for your layoff or termination should fall on the employer if they failed to give you required evaluations. Even if you were the worst performer and the appropriate one for layoff or termination, the fault may belong in part with your employer for neglecting to administer required performance reviews.
Whether you are selected for layoff, termination or discipline, compare your performance and situation with those of others. It’s not fair to compare yourself with either the president of the company or a more junior employee. It is most appropriate to compare yourself with co‑workers at your level. See the chart below for the appropriate factors.
Other Discriminatory Factors
Discipline by Company
This is more subtle evidence but sometimes very effective. If you are in a job where you can quantifiably compare your performance with others, such as in sales figures, keep those reports to justify your claims. Layoff figures which show unreasonably high impact on one particular protected group, such as one regarding age or race, are also effective proof.
10. Friendly Witnesses
Try to get statements from friendly witnesses while their memories are clear. If you wait too long, recollections fade and loyalties to you are not as strong. Witnesses of past events are important, but try to set up witnesses for current events as well. If you anticipate a problem, try to arrange to have a friend present to observe its occurrence.
11. Neutral Witnesses
Give neutral witnesses a reason to care about you. Emphasize that with their support a time‑consuming dispute may be averted. By giving a written statement now, more prolonged involvement through complex litigation will be avoided.
12. Unfriendly Witnesses
Obtain admissions from unfriendly witnesses by having someone other than yourself overhear their statements. They may not be aware of the need to “sanitize” their statements, especially before your attorney contacts them. Do your best to figure out how to get your boss or others to admit to things necessary to your case.
Try to improve any situation where it is your word against another’s. Consider meeting a neutral or unfriendly witness at lunch with one of your witnesses in the next booth to listen to your conversation. In the case of a phone conversation, have a witness listen to your side of the dialog and reaffirm aloud any critical statements made by the other party. If the other party speaks loudly enough, the witness may even be able to overhear their remarks from your receiver. Some states, but not all, make it illegal for a witness to listen in on a phone extension, even with your consent. Check with your attorney on this point.
Of course, one of the best methods is to tape statements by critical witnesses with their consent. Some states make it legal to tape another person without their consent, as long as one party to the conversation agrees. In some states, including California, this is illegal unless there is “no expectation of privacy” or the person doing the taping is doing so because there is a reasonable fear of physical violence or extortion by the other party. Eliminate any expectation of privacy by meeting the witness at a restaurant with others present. Not only could you have a live witness in the next booth, but you would be fully justified in most states to tape without liability. If necessary, excuse yourself to use the restroom to turn over your tape before it beeps at the end. That could be embarrassing. Ask your attorney about the law in your state before using this method.
Consider hiring a private investigator who can call your former employer, truthfully identified as an employee service agent evaluating your resume and needing their input. Many employers will be very candid about an employee’s performance and reasons for termination. If they are blacklisting you or slandering your good name to others, especially to those whom they think are prospective employers, this might provide excellent proof of a case against them. Besides subjecting them to civil liability to you, slandering you in this regard is also a criminal violation in many states. In California, you might even be able to recover triple damages.
Try to establish proof of your case when it is easiest. Once the employer knows you have hired an attorney and have filed a lawsuit, their attorney will certainly give strict instructions to either keep their mouths shut or only repeat the company’s exact position. Too many employees and their lawyers wait until an actual lawsuit is filed before taking steps to obtain evidence, even then using only formal litigation methods to do so. Try to get that same evidence by informal means prior to the filing of a lawsuit. t may provide more candid and honest proof.
Bruce Heverly not only lost his case, but had to pay more than $100,000 in attorney’s fees because he failed to prove his claims. Proving your case may be easier than you thought. If you do it adequately, you may not even need to file a lawsuit to get your employer’s attention and resolve your claims. Start gathering your evidence as soon as a problem arises. Get as much as you can before you leave the company or file a lawsuit. With proper proof, you will recover all appropriate amounts due you either before litigation or through the court system as did Buckner and Maxwell. They did it. So can you.