As discussed in Matt’s two prior blogs advising employees what to do to prepare for a meeting with HR and what to do during a meeting with HR, what an employee does and doesn’t do after a difficult meeting with HR is very important. For most people, a difficult meeting with HR is a serious confrontation that tends to be a bit disorientating. When the meeting is over, many employees are left asking themselves what they should do next, how they should do it, and when they should take action. Because most employees have very little experience dealing directly with HR, most employees wind up feeling lost, worried that a misstep or inaction will only lead to a negative result, including termination.
In the blog post below, Matt closes the circle on the HR meeting scenario by listing the most important action items for employees after a difficult meeting with HR. By following Matt’s general guidance, employees can help gather the facts and gain confidence in their own ability to address the situation. At the same time, Matt provides examples of common mistakes that employees make following a meeting with HR that often make the situation worse.
Things You Should Do After a Difficult Meeting with HR
Immediately Take 15-30 Minutes to Fill Out and Complete Your Notes
Immediately after a difficult meeting with HR is concluded, take 15-30 minutes in a quiet spot where you will not be interrupted and fill out your notes with as much information as you can remember from the meeting. When the information is still fresh in your memory, write down what you can recall each person said, what you said in response, etc. Having notes made on the same day of the meeting is more credible that a description of that happened weeks, months or even years later.
Gather Any Additional Documents/Emails Based on Discussion at Meeting
Of course, if the discussion during the HR meeting revealed additional documents, emails, policies or procedures that the employee did not consider on the front end (before the meeting), the employee should immediately gather and review that information in preparation for a potential response to the meeting, or in preparation for subsequent meetings with HR on the same topic.
Calendar Any Deadlines Set by Supervisor or HR During Meeting
Many times, individual meetings with HR are disciplinary in nature, including placing an employee on a “PIP” (Performance Improvement Plan). Almost all PIPs include deadlines by which the employee must reach certain goals. The employee should make sure to note those dates on the employee’s personal and work calendar so the employee can be aware of the pending dates and comply with any employer-imposed deadlines.
Consider Whether a Written Response is Required or Wise
Most people do not enjoy personal criticism, and most employees especially do not enjoy being warned that the employee’s job performance is not meeting expectations, or that the employee’s workplace conduct was inappropriate, a violation of policy, or failed to meet professional standards.
Most people naturally respond by denying the accusation and declaring their innocence. Many times, that declaration of innocence takes the form of a “rebuttal” document that is a long, drawn-out narrative written by the employee that attempts to explain away every single last detail of the issues presented by HR at the meeting. In Matt’s experience, the employee rebuttal document is a complete waste of time.
First, no one actually reads the rebuttal – it’s meaningless and simply is placed in the employee’s personnel file. Management has absolutely no obligation to read it, no obligation to respond to it, and certainly no obligation to take any specific action on it. Second, the only real effect of the employee rebuttal document is to make the employee look unreasonable and confused because most employees do not understand how to address workplace disputes and most of what they include is completely irrelevant. Third, if no one is going to read it and management is not going to respond to it, what is the point of the rebuttal? There isn’t one. Instead, because the employee rebuttal document almost never is prepared with the assistance of an attorney, the rebuttal document almost always is used by the defense attorney (the company’s attorney) against the employee if the employee sues the employer after getting fired.
For all of those reasons, Matt generally does not recommend that employees prepare and submit a “rebuttal” to a performance review, a performance warning, or any other issue that HR presents to the employee in a meeting. As Matt recommended in his blog about attending a meeting with HR, employees only should register an objection or disagreement with the employer’s position, but nothing further.
Seek Legal Advice If You Believe You Employment Is Threatened
Of course, if the result of the meeting with HR is that the employee believes his/her employment is about to be terminated, the employee immediately should seek legal advice from a competent attorney that specializes in employment law. Matt’s blog on selecting an employment lawyer can be found here. As mentioned above, in almost all circumstances, the employee gains nothing by announcing to HR that he/she intends to sue the employer, so Matt does not recommend that, even if the employee has firm plans to sue the employer. Once you retain an attorney, make sure you follow your attorney’s advice very carefully.
Things Not to Do After a Difficult Meeting with HR
It’s not uncommon to feel discouraged and defeated after a difficult meeting with HR, especially when the HR representative has just delivered difficult news to the employee that suggests the Company is considering terminating the employee’s employment unless certain metrics are met, certain goals are achieved, or certain behavior is corrected. Most of the time, the employee’s frustration is increased because the employee completely disagrees with the HR representative’s description of the problem. As a result, employees sometimes make quick and unwise decisions that put the employee in a worse legal position. According to Matt, the following post-meeting actions almost always are a bad idea:
Do Not Resign Your Employment: Always Let Them Fire You
There is almost never a situation in employment law where the employee is better off resigning rather than being involuntarily terminated (fired). DO NOT RESIGN! If the employee voluntarily resigns his/her employment, the employee is making a potential lawsuit against the employer much, much more difficult because an adverse employment action (termination) is a necessary element for nearly all employment claims in lawsuits against employers. If the Company wants to get rid of you, why would you do them a favor and do it for them by quitting?? Make them do it.
Some employees assert that resigning is better because “then I won’t have a termination on my record.” That is a complete “red herring” (a false argument) because generally speaking, a former employer will never tell a prospective employer about the circumstances of the employee’s separation from employment. In other words, the employer that fires an employee is not going to tell the next employer that the Company fired the employee seeking a job, they are not going to tell the new employer why they fired the employee seeking a job, and the Company is not going to mention anything about it at all to the new employer.
Why? Two reasons: First, if the former employer said anything about the circumstances of the employee’s termination, the former employee could sue the former employer for defamation. Employers are scared about being sued for defamation almost as much as being sued for discrimination, harassment or retaliation, and nearly all employers have strict policies limiting the information that can be disclosed on job references for former employees. The bottom line is that the only way most employers will ever learn that you were terminated by a former employer is if you tell them you got fired.
Second, if the former employer has even the slightest concern that the former employee might make a claim against the former employer based on the termination, the former employer is highly motivated to see the former employee gain subsequent employment because that new job will limit the former employee’s potential damages against the former employer in any lawsuit. In other words, the former employer desperately wants the former employee to get a new job because that means the former employee is much less likely to sue them, and if the employee does sue, it makes the potential liability in that lawsuit much lower for the former employer.
Do Not Start Downloading Documents in Anticipation of Termination
Sometimes it’s clear after a difficult meeting with HR that the employee is going to be terminated. Recognizing the handwriting on the wall, some employees will begin downloading documents from the Company’s computer system so that the employee can have “evidence” to use in an anticipated lawsuit. Don’t do it. Remember that the Company’s computer system and all of the electronic information on the computer system is the Company’s property. Secretly taking any of that information with you is no different than physically taking files out of the filing cabinet after hours and putting them in your car – a clear case of theft. Additionally, the Company can easily detect any activity on your computer, and employers routinely monitor computer activity on employees with poor job performance and employees notified that they will be terminated.
If the employee improperly downloads electronic information, that action by the employee will be considered “after-acquired evidence” in the employee’s subsequent lawsuit against the employer. “After-acquired evidence” means information the Company learned after making the termination decision that had the Company known beforehand would have been sufficient to warrant termination on its own. Simply put, improperly downloading documents or information from the Company’s computer system is improper, illegal, and will ruin the employee’s potential lawsuit for wrongful termination.
Do Not Ask Co-workers to Be Witnesses for You After a Difficult Meeting with HR
Many employees looking to sue his/her former employer will brag that this employee or that employee “has agreed to be a witness in my lawsuit.” The implication is that the employee has solicited (asked) the co-worker to be witness for the former employee, and that the co-worker must be a credible witness because the co-worker remains employed at the employee’s former employer.
Asking co-workers to be a witness for the employee in a lawsuit is a waste of time and can make the employee look bad. First, an attorney does not need anyone’s permission, agreement or consent to call a co-worker in for a deposition in a lawsuit – anyone can be a witness. Second, gaining a co-worker’s “agreement” to be a witness can give the improper impression that the former employee and the co-worker have “coordinated” their stories because the co-worker is biased in favor of the former employee. Contrary to what most employees think, that does not strengthen the employee’s potential lawsuit or make it more appealing to an employment lawyer – it actually makes it seem weak. It appears weak because everyone is obligated to tell the truth (under penalty of perjury) in a lawsuit, and that obligation has nothing to do with any agreement with the former employee. When the former employee emphasizes that he/she has gained a co-worker’s agreement to be a witness, it implicitly detracts from the co-worker’s statutory obligation to tell the truth.
Rather than asking co-workers to be a witness for the employee, an employee that has been terminated should use that time to prepare a timeline of events and a “cast of characters” relevant to the dispute and/or termination decision. That information will assist an attorney to evaluate the case and will aid the former employee’s attorney in identifying relevant witnesses and documents.
Do Not Post Negative Comments on Social Media After a Difficult Meeting with HR
Everyone knows that employees sometimes vent their frustration with their employer on social media. Every defense attorney will thoroughly review all social media outlets for any comment by a former employee and use it against the former employee if the former employee files a lawsuit. In Matt’s experience, social media posts about the former employer serve no good purpose and almost always are embarrassing for the former employee. Resist the urge to make your dispute public through social media and keep in mind that once your attorney files the lawsuit, the lawsuit will be a public record for the rest of time.
Do Not Begin a Leave of Absence Immediately After the Meeting
For the same reasons it is not wise to begin a leave of absence from work when you are notified of a meeting with HR, it almost always is counter-productive to go out on a leave of absence immediately following a difficult meeting with HR. Many employees wrongly believe that if they go out on a leave of absence recommended by their healthcare provider, the employee is “safe” from termination. Not true. An employee that was notified of a potential termination can still be terminated even if the employee is on a legitimate FMLA leave, a legitimate CFRA leave, or even a legitimate disability/workers compensation leave, so long as the reason for the termination has nothing to do with the leave of absence. When the reason for the termination is communicated to the employee prior to the employee’s request for a leave of absence, California law recognizes that the termination decision has nothing to do with the leave of absence. Consequently, beginning a leave of absence immediately following the meeting with HR is completely transparent and fools no one, and only will delay the inevitable.
Contact the Ruggles Law Firm at 916-758-8058 to Evaluate Your Potential Lawsuit
Matt Ruggles has a thorough understanding of California employment laws and decades of practical experience litigating employment law claims in California state and federal courts. Using all of his knowledge and experience, Matt and his team can quickly evaluate your potential claim and give you realistic advice on what you can expect if you sue your former employer.
Contact the Ruggles Law Firm at 916-758-8058 for a free, no obligation consultation.
Blog posts are not legal advice and are for information purposes only. Contact the Ruggles Law Firm for consideration of your individual circumstances.
