The Fair Labor Standards Act and many state laws have anti-retaliation provisions. That basically means that it’s illegal for a company to take any action to punish in any way for anything you do that’s protected activity under the law. Protected activity includes not only suing them, but cooperating with someone else who suing them, testifying truthfully in any kind of hearing or deposition, and other things that you think may get the company upset with you.
That means that if you file a lawsuit against the company for backpay and as soon as they learn about it they fire you, you can add a wrongful termination/retaliation claim to the lawsuit (or file a separate lawsuit for that). As a practical matter, most companies aren’t stupid enough to do something as obvious as that. They’re not going to give you a pink slip saying “You’re fired because you sued us.” Instead, they’re going to fire you because you sued them, but pretend that it’s for some other reason. “You’re fired because you were two minutes late last Tuesday.” “You’re fired because your performance reviews are down.” The legal terminology for that is “pretext.” It just means that it’s a sham excuse, that it’s “cover” for the real reason, which they don’t want to admit because it’s obviously illegal.
It’s amazing how many times someone is a phenomenal employee, but only until the employee complains about something. Then the company’s opinion of them suddenly changes – their reviews go down, they get written up for doing the same things they’ve always done them, they “have an attitude problem,” and co-workers act like they’re practically radioactive. The star employee all of a sudden can do nothing right. And the reality is that obviously the employee didn’t change, but the company’s opinion of them changed and now they’re looking for reasons and excuses to give the employee a hard time
The gray area in all of this is proving that the real reason the company fired you/demoted you/laid you off/gave you bad reviews, etc. is because you sued them, cooperated with someone else who’s suing them, refused to lie under oath, etc. And to do that, you need evidence. Fortunately, you probably have plenty of evidence of that, but just don’t realize it.
We know that this can sometimes be a real problem for people who file claims against their employer. Sometimes people are so afraid of retaliation that they actually just accept that they’re being ripped off and their wages stolen. But to us, completely surrendering your rights is an unacceptable option. So realistically, what can you do about it? Well, there are several things.
One thing you can do to help create evidence is keep a detailed log book for your lawyer telling them all of the conversations you’ve had with the company about all the different issues (including not only your pay issues, but your performance reviews, arrival and departure times, offhand comments by co-workers about how the boss said you’re in deep trouble because you’re suing the company, etc.) No matter how good your memory is, you absolutely will forget a lot of details, and keeping a good written account for your lawyer of all of these details is extremely important. It can make or break a case, and it is well worth the effort it takes to create it.
We frequently give composition notebooks to clients to keep these notes and, the kind that are stitch-bound and you can’t take out any pages without it being noticeable. We put a sticker on the front of it saying:
“CONFIDENTIAL AND PRIVILEGED ATTORNEY-CLIENT
COMMUNICATIONS FROM [CLIENT] TO CURRAN LAW FIRM.
DO NOT SHOW THIS NOTEBOOK TO ANYONE”
We tell the client to consistently keep dated notes to us concerning any significant events, and to make notes as soon as something happens. Who was present, what was said, what was done, documents created, etc. (Don’t keep a pen with the notebook when you’re writing it because if you always use the same pen, the defense attorney will try to claim that it’s all in the same ink color because you made it up and created the notebook two weeks before the trial.)
Those notes are a huge help later, and can be the difference between winning and losing.
Why? Consider which scenario is more powerful. You’re on the jury, and the employee who is suing gets up on the witness stand, is sworn in, and testifies. In the first scenario, she gets on the stand and says:
“On January 22 two years ago, at about 2:30 in the afternoon, I was sitting in my office when Mr. Boss came in and told me . . . .”
The defense attorney then attacks her on cross-examination, claiming that she couldn’t possibly remember two years later the specifics of everything that happened, including the date and time. And that kind of attack will probably get some traction with the jury, because it is kind of hard to believe that somebody could remember that much specific information after such a long time
But in the second scenario, she gets on the stand, holds up a composition notebook for the jury to see, and says:
“This is a notebook that I frequently made notes in during the time I was going through this difficult time two years ago with my boss. I met with Mr. Curran back then because I was so upset about what was happening. He gave me this notebook and told me that every time another incident happened, I should go home after work and sit down while it was fresh in my mind and make notes about everything that I can remember about the incident. So I did. It was hard to force myself to write these notes down, because all I wanted to do was think about something else. But I made myself do it. Every time an incident happened, when I got home that night I would sit down at my kitchen table with this notebook and write down notes about what he did to me.
My notes for January 22 say [reading from the notebook]:
“Today, I was working on my monthly reports on my computer when Mr. Boss came into my office, closed the door behind him and said . . .
The second scenario is going to be much more impressive to the jury. It makes it much harder for the defense attorney to attack the witness, and it will go a long way towards weakening their claim that she made all these facts up after the incident.
Another thing you can do is keep track of other worker’s incidents, conduct and write-ups. Why? Because it can help prove that there stated reasons for doing something are lies. For instance, if the company write you up for being three minutes late on Monday, but somebody else was five minutes late on Tuesday and did not get written up, that fact helps prove that you’re being late was not the real problem. That kind of evidence is super helpful, because it exposes the employer’s lies.
In addition, another technique you can sometimes use is to send yourself emails containing the details about what happened in various incidents. The date and time stamps on the emails are effective to prove that you didn’t make these claims up later, after the fact.
IMPORTANT NOTE: Do not do this on any email account that the employer has access to. So if your work email is EthelJohnson@IBM.com, don’t send these emails to or from that account. Instead, create a separate email account completely outside of work that you use for this purpose, such as a Gmail account. And never access your Gmail account from your work computer, because it may store your password and you might inadvertently give your employer access to your emails on that account. Instead, you might access your Gmail account only from your personal private cell phone. (If your cell phone is one furnished to you from work, don’t access it from that account, but only access it from your personal home computer, etc.)
There are two reasons for this. The first reason is that you want to make sure these emails don’t fall into the hands of the employer. The second reason is that you want to make sure that you still have access to all of these emails even if the company fires you and terminate your access to your work email address. Spending the time and effort to create 200 email notes is only helpful if you have access to them. If the employer deletes them all and you don’t have backups of them, there no use at all.