Usually employees will only contact an employment law attorney after an employment crisis has occurred, such as getting fired. However, there are several things that employees can do to protect themselves before an employment crisis. Here are five tips for employees who are still employed:
Don’t Work Without Getting Paid.
It seems obvious, but many good natured and trusting employees continue to work for employers who are late in paying regular paychecks, who issue bounced checks, or who outright refuse to pay their employees. Employers who issue bad checks or who fail to pay wages can be sued for penalties that greatly exceed the amount of the actual wages.
The problem for employees is that an employer’s failure to pay timely wages is often indicative of major financial problems, like a looming bankruptcy. Employees who continue to work for employers without pay risk collecting nothing from their employer even if they successfully sue their employer for owed wages and penalties.
2. Stay in Contact With Former Employees
Co-workers are almost always used as witnesses in wrongful termination lawsuits. Unfortunately, current employees are usually unfavorable or “hostile” witnesses for plaintiff employees. This is because current employee witnesses still collect a paycheck from the business that’s getting sued, are scared of retaliation, and do not want to cause problems for themselves at work.
However, former employees are typically very good witnesses for plaintiff employees. This is because former employees no longer have a sense of loyalty to the employer and can speak with more candor with greater credibility.
For this reason, it is a good practice to stay in contact with respected former employees.
3. Respond to Serious Poor Performance Allegations In Writing
Employees who are wrongfully or unfairly accused of serious performance problems should respond in writing in a timely, calm, succinct, and professional manner, and preferably by email. The writing should clearly explain why the employee is not at fault. To illustrate, take the following case of Mike, a corndog cook at Hot Dog On A Stick in Capitola.
Mike is responsible for draining and re-filling the restaurant’s deep fryer when directed by his immediate supervisor, Jared. Five minutes before closing, Jared tells Mike to drain and refill the deep fryer. Unfortunately, the store closes before Mike can complete the draining and refilling process. The next day, the store is late in serving corn dogs because Mike needed to finish refilling the deep fryer. Jared is furious and issues Mike a written warning for insubordination. In the blank “Employee Response” section of the written warning, Mike writes:
“Five minutes before closing yesterday, Jared told me to change the fryer oil. This is a 45 minute process. Before I could finish, my shift was over and the store closed. I completed the process when my shift started the next day. I was not insubordinate.”
Mike’s timely, calm, succinct, and professional note can now serve as favorable evidence one, two, or even five years later in the event of a wrongful termination lawsuit. Just as employers document employee performance problems, employees must create a paper trail of their own.
4. Request Your Personnel File and Keep Copies of Employment Records
Current and former employees are entitled by law to inspect and copy their personnel file which should contain important employment records. When appropriate, employees should ask to review their personnel file if they suspect false or defamatory statements have been made about their job performance.
Similarly, employees should keep copies of their paystubs and important personnel records, such as awards, letters of recommendation, notes of customer appreciation and any other document that shows they are performing their job well. Employees should not rely on employers to include positive records in their personnel file.
5. Contact an Employment Law Attorney Before A Crisis Occurs
Employment law is one of the most complex and aggressively litigated areas of California law. It is almost always in the employee’s interest to contact an employment law attorney before an employment crisis if the employee is experiencing harassment, discrimination, retaliation, or is not getting paid their wages or is not provided with rest and meal breaks.
Are you a Monterey, Salinas, Watsonville or Santa Cruz employee facing an employment scris? Ready to stand up for your rights? Contact the Law Office of Brian Mathias.