This page addresses the following topics for building your case in any kind of legal or quasi-legal challenge to a termination or other adverse action against you in the workplace:
To build a winning case, the burden is on you, your union or your attorney to gather evidence, both written and oral, that is specific, accurate, and objective. Even if you don’t end up in court, you need to have a case that a judge could find credible in order for your employer to consider settling the claim in your favor.
This advice applies to cases brought in a wide range of forums, include the courts, administrative agencies, like the EEOC or NLRB, and arbitration. Communicating with your union is especially important in an arbitration under a collective bargaining agreement, because in that situation, the union is primarily responsible for making your case.
Gather and put in chronological order all of the documents that you can find concerning your employment-every pay stub, every memo, every handwritten note. Try, within your company’s rules, to get copies of:
- Performance evaluations
- Disciplinary warnings or reprimands
- Letters of thanks or praise (from managers, customers, or co-workers)
- Internal memos
- Company bulletins
- Attendance record
- Any document stating the reason for your dismissal
- Handbooks, manuals, or other documents describing work rules, policies, and procedures
- Pension benefits and retirement plan information
- Documents related to your unemployment compensation claim
- Copies of work assignments
- Organizational charts, diagrams, floor plans, etc.
Do not take documents or access information to which you have no right and are not entitled. If you are a union member, ask your union to assist in acquiring documents that are otherwise difficult to obtain, but to which you are legally entitled.
If you think co-workers or others observed your wrongful treatment, make a list of their names, addresses, and home telephone numbers, along with a summary of what you expect them to say – whether good or bad. The “bad” or unfriendly witnesses are especially important to discuss with your attorney so that he or she can evaluate the damage they might do to your case. Forewarned is forearmed.
Ask friendly witnesses to give you a written statement of anything they saw or heard in person regarding your situation as soon as you decide to take action against your employer. Memories fade over time. Make sure the witnesses state only the facts of which they are personally aware and give specific examples of what they have seen themselves or what they were told directly. General statements such as, “Everyone knew that the supervisor was out to get her,” are not helpful to your case. Get statements that specify the who, what, when, and where of the discriminatory or otherwise unlawful action, such as your employer’s yelling at you or interfering with your work. If possible, have the written statement signed in front of a Notary Public.
The most useful witness statements are fact-intensive and unembellished by anger toward your employer or by friendship to you. They should be detailed enough so that whoever reads them – the court, an attorney, or an agency investigator – will see the “big picture.”
If you know of employees who were mistreated in the same way you were, ask them for statements about the way they were treated. If your supervisor, for example, made insulting and demeaning remarks to you and other workers, get statements from the other co-workers that quote or paraphrase the remarks, give the dates on which they were made, and name any others who were present.
This is a selection from Job Rights and Survival Strategies by Paul H. Tobias and Susan Sauter.