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by Stephan Math on Mar. 12, 2010

Employment Employee Rights 

Summary: Indispensable steps to take when employees experience problems at work. Following the steps outlined in this article can go a long way toward casting your prospective case in a light most favorable to you.

It has been my experience over the years that one of the most recurring problems in an employment law practice is the fact that most employees wait much too long before consulting with an attorney experienced in employment law.

This is probably the most critical of issues in affecting your ability to properly cast your case in ways most beneficial to you in the event that litigation should occur.

For instance, often times when employers are obviously attempting to "document" the file of an employee, the employee commonly does nothing but possibly sign the documentation indicating his or her disagreement. This, unfortunately is insufficient and of little help to the employee should the matter proceed to litigation.

Generally, the law applies certain presumptions in the case of written communications occurring in a business setting and therefore, in the employment relationship. How then does this apply? In cases where an employee's file is obviously being documented by the employer with a view toward justifying disciplinary action or termination it is always necessary for the employee to respond in writing should the employee disagree with the employer's statement setting forth with as much specificity as possible the reasons why. Should the employer fail to respond, which is often the case, the law will presume that what the employee has stated within his communication is correct. The point being of course, that if it were not correct it would be reasonable to presume that the employer would have responded and pointed that out.

Additionally, and during this process you could and should be consulting with an experienced attorney who would be able to properly advise you with respect to the content of any written communication forwarded by you to the employer.

I cannot tell you how frustrating it is to have a client first contact us after the employer has concluded his campaign of documenting the employee with no obvious contrary responses on the part of the employee. You see the presumption I described above, cuts two ways. A failure on the part of the employee to respond to erroneous charges by an employer will likewise raise a presumption in favor of the employer and could be quite damaging to any possible case the employee may have brought.

Another aspect of this very important tool is one involving the confirmation of certain conversations or events in writing so that you are able to preserve these facts should litigation become necessary.

For instance, often an employee may be called into a meeting with superiors where certain critical information is discussed or decisions are made. Sometimes there is no record of these very important events. In such cases it is always recommended that the employee confirm in writing what occurred, and what was stated, agreed to or any other action that was taken. Bear in mind this should only be done after consulting with an attorney experienced in employment law and should only be done when confirmation of such events would be beneficial to the employee in the event of future litigation.

Finally, it is also important to consult with an experienced attorney as soon as possible because many of the actions that an employee might consider taking are subject to certain procedural rules which require the exhaustion of certain administrative remedies within a specific period of time and also be subject to various statutes of limitations which dictate when such actions may be taken. Should an employee wait too long and fail to properly comply with any of these statutory limitations or requirements, then the employee may very well lose his or her right to pursue the claim.

Every case brought relies upon one very important thing: Proof and evidence supporting the employee's claims. When an employee brings a claim into court, it is the employee who carries the burden of proof. In other words you must be able to demonstrate that it is more likely than not that what you say occurred did in fact occur. The steps outlined above are indispensable in facilitating your ability to meet that burden of proof in the event of litigation. Too often attorneys are confronted with facts which are extremely difficult, if not impossible to establish as a matter of law because the only evidence of such facts is, "he said, she said". The recommendations set forth herein eliminate that problem.

Remember, most experienced employment lawyers will consult with you initially at absolutely no cost. This is probably one of the best deals you could ever find. How often in our economic system is it that you have an experienced, well trained professional willing to conduct an evaluation of your particular situation at absolutely no cost to you? Usually however, a substantial number of people fail to take advantage of this bargain and  unfortunately, to their detriment.

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