Introduction: I Just Got Fired: Guidance for California Employees Immediately After Termination.
Getting fired from a job is a traumatic event for any employee. Most of the time, it is entirely normal for the employee to disagree with the employer’s termination decision. In fact, most employees strongly disagree with their own termination and consider the decision unfair or even illegal. However, because the vast majority of employees who just got fired do not have much experience with the termination process, employees facing termination ordinarily are confused and disoriented by the sudden change, resulting in panic and confusion.
As an employment law litigator for the past 30 years, Matt Ruggles has been through thousands of employee terminations – from company-wide reductions in force to individual terminations for workplace misconduct and everything in between. In the blog post below, Matt provides advice for employees who are facing the unfortunate circumstance of involuntary termination of employment, including what actions employees should take right away, as well as what actions employees should avoid that make the situation worse.
If Possible, Attend Termination Meeting and Note the Express Reason for Termination, But Do Not Argue.
If HR asks you to attend a meeting at which you will be terminated, attend the meeting and take notes. During the meeting, HR will tell you the reason for your termination – make sure you write that down in your notes. If you do not understand the reason, ask for clarification, but do not argue with HR about it – just get the reason and record it in your notes. If HR gives you a written document that is a “termination notice” that lists the reason for your termination, keep that document and do not write on it or alter it in any way.
Do Not Sign Anything Proposed by Employer at Termination Meeting after You Just Got Fired.
You should never sign anything presented by your employer at a termination meeting. Many times, employers will propose a written agreement at the termination meeting that is called a “severance agreement” or a “ general release of claims.” Regardless of the title of any document, don’t sign it during the meeting because these documents often include clauses that waive your legal rights, including the right to sue for wrongful termination, discrimination, or unpaid wages.
In the heat of the moment, there is no way you can fully appreciate or understand the full meaning and implication of the document the employer is asking you to sign. On the other hand, the employer has had the benefit of getting legal advice before the meeting, the employer has had the benefit of meeting with the company’s lawyer to review the document, and the employer fully understands the document. Consequently, it is completely and totally unfair to the employee to ask the employee to sign or consider anything in writing at the termination meeting. If your employer asks you to review and sign anything at the termination meeting, refuse and ask the employer for additional time (days, not hours) so that you can get appropriate advice.
If You Just Got Fired Do Not “Resign in Lieu of Termination.”
Many times, an employer will offer an employee the chance to resign rather than face an involuntary termination under the guise that a resignation “looks better” for the employee. Don’t resign! Always make the employer fire you – every single time! There is absolutely no reason to “resign in lieu of termination,” which only benefits the employer, and never benefits the employee.
First, resigning your employment makes it much more difficult to sue your former employer for discrimination, harassment or retaliation because a termination ordinarily is required for most employment claims.
Second, a resignation may disqualify an employee from receiving unemployment benefits.
Finally, the notion that its better to have a resignation than a termination “on your record” is a complete “red herring” (a false argument) put forth by the employer to encourage the employee to do the employer’s dirty work for them. In fact, a former employer will almost never tell a terminated employee’s prospective employer whether the employee quit or was fired, or the circumstances of how the employee separated from employment, because the former employer could be sued for defamation if it did so.
Consequently, the only way that most employers will learn that you were terminated from a prior job is if you tell them you got fired. Voluntarily resigning your employment almost always is a bad idea when you are faced with termination because a resignation limits your legal remedies – don’t do it.
Do Not Take Any Documents, Emails, or Electronic Records from Employer Upon Departure After You Just Got Fired.
Remember that an employer’s email system, including all of the electronic information and documents contained on the computer system, is the property of the employer. Taking electronic information off the system to “build your case” once you learn of your termination is no different than taking physical files from the filing cabinet and putting them in the trunk of your car. Engaging in such conduct can harm your credibility and may lead to legal repercussions, including potential counterclaims of “misappropriation” by the employer. Courts may also view this as “after acquired evidence” which can essentially cancel your otherwise valid legal claims arising from your termination.
Do not engage in “self-help” by taking information you are not entitled to take when you are fired – let your lawyer deal with that once you file a lawsuit.
Do Not Post Any Negative or Derogatory Information About Former Employer on Social Media After You Just Got Fired.
If you file a lawsuit against your former employer for wrongful termination, the company’s lawyers will search all social media outlets for any post by the employee that is potentially relevant to the employer. Employers can then use these posts as evidence to argue that you are disgruntled, unprofessional, or vindictive, effectively undermining claims of wrongful termination or discrimination. Such posts may also contradict statements made in your case, weaken your credibility, and provide justification for your employer’s actions. Always exercise caution and avoid sharing any sensitive or critical information online during employment disputes.
Matt’s advice is to avoid making any comments on social media regarding your employer or your termination.
If You Just Got Fired, Start Taking Notes Immediately and Update Your Notes Over the Next Several Days.
As soon as you learn that you will be terminated, you should start taking notes. Your notes should include all important events, all witnesses, and anything else that potentially is relevant to why you think you were wrongfully terminated, why you think you were harassed, or why you think you were the victim of discrimination or retaliation. Of course, your notes also should include the specific reasons HR or the company gave for your termination, any conversations with supervisors or HR, performance reviews, disciplinary actions, and any emails or written communications related to the termination.
Employees should also record dates, times, and individuals involved in important conversations, as well as any informal comments or behaviors that may seem discriminatory or retaliatory. To ensure accuracy and thoroughness, employees should take notes as soon as possible after each event, keeping a detailed, organized record that can be easily referenced later. Make sure to keep all of your relevant text messages – do not delete any information from your phone.
Create a Timeline of Events Regarding Your Termination and Potential Claims.
As soon as possible, start to create a timeline that lays out the events that you believe are relevant to your termination or other potential claims. The timeline should begin with your date of hire and should include the dates of your periodic performance evaluations, any meetings with HR or your supervisor, the dates of any important workplace incidents, as well as the dates that you made any oral or written complaints to the company. Each entry should include the date, individuals involved, and a detailed description of the event or conversation. If possible, reference and attach relevant documents like emails, texts, or formal warnings helps to build a complete and organized record which will help explain your case to an attorney.
Create a “Cast of Characters” Regarding Your Termination and Potential Claims.
Along with the timeline, create a list of individuals that were involved in your termination, or involved in the harassment, discrimination or retaliation you experienced at work, including the names of witnesses. This list should include your direct supervisors, any managers above them, relevant witnesses who can corroborate your claims, and the HR representatives you engaged with. Including a brief explanation of each person’s involvement will help provide context for their actions and potential testimony.
List Dates and Topics of Any Internal Complaints.
If you contend you engaged in “whistleblowing” or any other form of legally protected conduct, be sure to write down the dates that you made any internal complaints, the manner in which you transmitted the complaints to the employer, and the specific person(s) at the employer to whom you sent the complaints. If you have a copy of the complaints, reference the complaints in your timeline and attach a copy of the complaint(s) to your timeline. As mentioned above, do not make any marks, notes or changes to the complaints because that document will be an important piece of evidence in any legal dispute.
Gather, Organize, and Scan/Photocopy All Relevant Documents in Your Possession.
Once you gather together all of your relevant documents, put them together in chronological order and make a copy so that you can keep a clean copy of the original documents and you can work with copies. Do not mark or alter originals; only mark copies. If you have a federal W-2 form (end of the year annual wage statement for taxes), include that document in your packet of documents because your attorney will need to see it in order to properly identify the precise name of your former employer.
Other documents that may be relevant for an employee who just got fired include any personnel policies, offer letters, or job descriptions. Performance reviews and any disciplinary records are important as they can show whether the termination was based on documented issues or if it was unjustified. Emails or other correspondence with supervisors, HR, or coworkers that detail work issues, complaints, or requests for accommodations should also be included because they may provide evidence of workplace conditions leading up to the termination. Pay stubs or records of bonuses, commissions, or other compensation can be essential in disputes over unpaid wages or severance. Additionally, if medical leave or a disability is involved, medical records and documentation of leave requests are critical to supporting claims of wrongful termination.
Immediately Apply for Unemployment Insurance.
If you just got fired, immediately apply for unemployment benefits. If your initial application for unemployment benefits is denied for any reason, make sure to file a timely appeal with the CUIAB, which will be explained in the paperwork you receive when you learn your application has been denied.
Update Your Resume and Begin A Job Search.
Be honest about your departure but avoid being overly negative about your former employer. One very common error terminated employees make over and over again is to lie about the reason for departure from a job from which the employee was fired when filling out a job application. It’s better to leave that question blank than to put a false reason.
Seek Legal Advice from an Employment Law Specialist – Not a Personal Injury Lawyer.
When communicating with a prospective employment attorney, focus on employment claims, not defamation, because it is much easier to find an employment attorney compared to a defamation attorney, primarily because employment claims generally are more lucrative (i.e. worth more money). Present an organized, succinct story to the attorney rather than a long-winded narrative that takes forever to explain. A case that is easy to explain is more attractive to an attorney.
File an Administrative Complaint with the California Civil Rights Department (but only if you cannot find competent legal representation after making a full effort).
In California, an employee that plans to file a lawsuit for discrimination, harassment or retaliation generally is required to file an “administrative complaint” with the California Civil Rights Department before the employee files a lawsuit in court. This process is called “exhausting administrative remedies” and normally requires the assistance of a competent employment attorney. If you are unable to retain the assistance of an employment attorney after making a full effort over a period of months (not days or weeks), you can file the administrative complaint yourself by going online and filing out a basic form. Employees have three (3) years to file an administrative complaint from the date of the adverse employment action, and one (1) year to file a lawsuit in court after the CCRD issues a “Right to Sue” letter.
Do Not Broadcast to Everyone That You Plan to Sue Your Employer.
Broadcasting the plan to sue could tip off the employer, giving them time to prepare a defense, gather evidence, or potentially retaliate in subtle ways that may undermine the employee’s case. Employers may also take steps to influence witnesses or manipulate records if they suspect legal action is coming. By maintaining confidentiality, the employee preserves the element of surprise, which can be strategically advantageous when pursuing a claim or negotiating a settlement. Keeping legal intentions private ensures a fairer process and reduces the risk of interference.
Review Final Paycheck.
Ensure you have received all wages, including unused vacation, bonuses, or other compensation due. If you find any errors, note the errors and include a summary in your timeline.
Secure Contact Information for Former Colleagues.
Collect contact information from coworkers who may serve as witnesses, but do not discuss your case with them. If a particular former co-worker you believe is an important witness no longer is employed by the company, try to list the employee’s new employer, or at least the city and state where the employee currently resides. In almost all circumstances, it is not wise to contact your co-workers to obtain their contact information because almost no one wants to get involved in someone else’s lawsuit. Let your attorney take care of that – your job only is to provide enough information so your attorney can locate the person and make contact.
Avoid Speaking with Employer’s Attorney Directly.
Do not engage in any conversation with the employer’s legal counsel without your own attorney. Speaking with your employer’s attorney without your own legal representation can put you at a disadvantage, as the employer’s attorney’s goal is to protect the employer’s interests, and anything you say could be used against you in your case.
Request Your Personnel File Pursuant to California Labor Code Section 1198.5.
An employee in California who just got fired has the right to request a copy of his/her personnel file for up to three (3) years after separating from employment from an employer under California Labor Code section 1198.5. To request a copy of your personnel file, send your former employer an email or letter asking the employer the following: “Please send me a copy of my personnel file as permitted by Labor Code section 1198.5.”
It is normally best to make that request in writing. An employer has 30 days to provide a copy of an employee’s personnel file in response to a written request. Although an employer has the right to charge an employee for photocopying costs, employers rarely do so; if requested, the charge cannot be more than the cost the employer actually incurred to make the photocopy, which normally is less than $.15/page.
Keep Track of Communications with Your Former Employer.
Document any contact with your former employer if you just got fired. Keep a log that includes date and time of contact, name of person that made contact, and topic of contact. As much as possible, limit your communication with your former employer to email or other written correspondence. If you communicate by telephone, DO NOT record the telephone conversation – that is a crime in California. Instead, take detailed notes of each telephone call.
Avoid Burning Bridges Completely.
Maintain a professional demeanor in all communications with your former employer, as future references or settlement discussions could depend on it.
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.
