Best Practices to Preserve Your Legal Claims After Termination


Michael Fleming

One of the most common questions we receive from recently terminated individuals is “what should I do next?” Whether you have claims for unpaid wages or expenses, discrimination under Title VII or the Fair Employment and Housing Act, retaliation, sexual harassment, or other claims, here are some of the steps we regularly recommend that our clients take in order to preserve their legal rights.

1. Prevent your electronic data from being erased.

One of the easiest ways to inadvertently hurt the strength of your case is by failing to retain electronic data that could be relevant to proving your claims. Electronic data includes (but is not limited to) text messages / iMessages, work e-mails, personal e-mails, computer files, pictures, screenshots, other forms of communication such as Discord or Slack, and even information such as your GPS location data. Electronic data can be stored on your work computers, personal computers, work phones, personal phones, tablets, and even your smart watch.

Generally, your attorney will advise you to take immediate take steps to retain this information. However, you should take these steps even before you consult a lawyer, once you begin to consider making claims against your former employer. For example, you should ensure that all forms of auto-deletion have been disabled on your electronic devices. You should check your Outlook (or other mail provider) settings, iMessages or text messages settings, your computer’s document retention and backup settings, and your phone settings, to confirm that no messages or files will be automatically deleted without your knowledge. In some instances, you should not upgrade the operating system on your computer and/or cell phone, as these upgrades may occasionally delete data. You may also want to double-check your iCloud or cloud storage settings to ensure that there are no auto-deletion settings active.

A simpler (but more expensive) option is to have a computer specialist “clone” or “image” your devices. This ensures that you have a complete and accurate backup of your information, performed by a third party professional who can attest to the accuracy of the backup files. This approach is often taken in active litigation, because relevant data will be needed by your counsel and by opposing counsel.

2. Draft your timeline.

While any termination will undoubtedly be stressful, it is important that you draft a timeline of events while the facts are still “fresh” in your mind. The ultimate goal of your timeline is to provide a detailed summary of facts surrounding the alleged discrimination, retaliation, or other offending behavior. You will want to include as many dates (or rough dates), as possible, full names and titles of every individual involved, and specific examples of the wrongful behavior. In addition, if you have electronic or hard copies of evidence demonstrating the truth of your claims, you should reference them in your timeline.

Your timeline is a working document that should be continually updated as you recall additional facts, or uncover additional evidence, that is or may be related to your case. What may seem insignificant at first glance may turn out to be extremely important to your case, or it may give your attorneys a better understanding of your matter and claims. Ideally, your timeline should provide sufficient information to allow an attorney to begin drafting a demand letter or preparing a lawsuit on your behalf.

3. Ensure you do not have trade secrets or other confidential information.

In this day and age, and depending on your role, most employers will require you to sign a confidentiality agreement as a condition of your employment, and may also ask you to sign a termination certificate on your last day. Typically, these agreements will require you to maintain the confidentiality of the company’s sensitive information during your employment, and to return and/or delete any copies of such information at the time of your termination.

It is imperative that you carefully read your offer letter, confidentiality agreement, and/or termination certificate, to ensure that you comply with all your contractual obligations. If the contract explicitly requires you to delete company information, ensure that you do so before your final day of work. Sometimes, these agreements require you to return the confidential information, or to alert your employer of what documents you possess prior to deletion. Failure to properly abide by the confidentiality agreement may result in your employer making various counter-claims against you, including theft of trade secrets or breach of contract.

If you later realize that you accidentally retained a copy of your former employer’s confidential information, immediately inform your attorney that you are in possession of these documents. Do not delete this information prior to consulting with your attorney, as doing so could subject you to claims by your employer that you intentionally destroyed evidence (or engaged in “spoliation of evidence”), which is prohibited by law.

4. Keep your cool and choose your words carefully.

Finally, it is best to try and remain level-headed during your termination process. Although discrimination based on a protected class and most forms of retaliation are illegal under both California and federal law, unfortunately this has not prevented some employers from engaging in such tactics, or other wrongful conduct. It is understandable for your emotions to flare when you are being wrongfully terminated after months of harassment, but it is important to set aside these emotions during the termination process, so you do not jeopardize your legal claims.

For example, actions such as wiping the hard drive on your work computer, publicly confronting the offending employees for their illegal actions, writing an open letter to describe the wrongs done to you, or venting to your co-workers about your situation, may be steps that you’d like to take at the time, but could have immediate – and negative – consequences for your case. Taking such actions could also implicate your co-workers as witnesses and/or cause them to be asked to reveal what you said when you were venting to them, during the course of a company investigation into your claims. It is best to consult with your attorney before taking such steps.

The above tips should provide some initial guidance on how to approach your termination when you think you might have legal claims against your employer. If you are seeking representation for an employment-related matter, the attorneys at Dhillon Law Group would be happy to speak with you to see how we can help.

Michael Fleming is an associate who handles employment litigation and counseling at Dhillon Law Group Inc.

Michael joined Dhillon Law Group as a paralegal in 2014, as a law clerk in 2016 and 2017, and as an associate in 2018. Michael’s practice focuses primarily on litigation and counseling related to employment law.
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