Ainley Law provides 5 things that you need to know before you go. Preparing oneself for the event of termination is important if you ever exercise legal recourse. California labor and employment law can be tricky to navigate. Solid preparation by prudent record keeping can be your key to success. The following are KEY PROVISIONS THAT EVERY EMPLOYEE SHOULD TAKE IF THEY BELIEVE THAT THEY MAY BE TERMINATED.
THE ESSENTIAL TERMINATION CHECKLIST
1. Obtain a copy of your personnel file and do so on a regular basis. Think of it as checking your credit: you don’t know who is putting what in that file until you actually
look. Once you leave, that file may be of critical importance to you. Many employees are “evaluated out” of the company and you need to be on top of the contents. This file is likely the first thing that a good Plaintiff’s employment attorney will ask for. Code of Civil Procedure section 1198.5 gives you the right to “inspect” the file at any time whether a lawsuit is pending or not.
2. If medical records are relevant in your matter you should obtain copies of your records from your doctor. Doctors hate to comply with these requests and will usually try and put you off with high prices and long wait times. Cite them to California Health and Safety Code section 123110. This statute requires a health care provider to copy your records for you. They may not charge more than $0.25 a page ($0.50 for x-rays). The records must be given to you within 15 days. If you just want to inspect the records then they must be made available within 5 days.
3. Send a “freeze” letter to your former employer. California law does not require that an employer maintain records (especially electronic records) for any length of time and the
civil discovery act allows the destruction of potential evidence. Dodge, Warren & Peters Ins. Services, Inc. v. Riley (2003) 105 CA4th at 1414, 1419. You must be particularly careful with electronic records which may simply vaporize.
Always send a “freeze” letter to your employer demanding the preservation of relevant evidence (e.g. sales records, customer lists etc,). This “freeze letter” prevents the destruction of documents, particularly electronic ones. Make dure that you specify that the demand extends to electronic documents in their “native format” with “metadata” intact. This prevents cutting and pasting of documents. If you send this letter, you are far more likely to have relevant documents survive to be used in your case.
4. Prepare a list of witnesses with phone numbers, addresses and emails before you go. This is invaluable to you and to your attorney who may need to corroborate your version of events.
5.Identify key documents; for example, documents in a wage and hour case that prove you have been working late and/or coming in early can be critical to the success of your case. If the company’s policy manual or employee handbook is on line consider preserving a copy to share with –and only with– your counsel.
You may possess key documents necessary for your case where you reasonably fear that they may be destroyed. However, you must share these only with your counsel. Fox Searchlight Pictures v. Paladino (2001) 89 Cal. App. 4th 284. Great care should be exercised in retaining information from an employer. Unless it is critical and likely to be destroyed the prudent course is to consult with your counsel first.
These guidelines should help you when the case iS at its most critical phase: