How to Start a Workplace Claim Against Your Employer
Protect your rights in the workplace and get results.
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Depending on the size of your employer, the state where you work, and your profession, you may be entitled to certain legal protections in the workplace, including:
- the right not to be discriminated against because of your race, national origin, skin color, gender, pregnancy, religion, disability, genetic information, or age (and, in some places, marital status, sexual orientation, gender identity, or other characteristics)
- the right to a workplace free of harassment
- the right to be paid for hours worked: to be paid at least the minimum wage, plus an overtime premium for any hours worked over forty in one week (or, in some places, over eight hours in one day)
- the right to a safe workplace
- the right to take leave to care for your own or a family member's serious health condition or following the birth or adoption of a child, and
- the right to some privacy in personal matters.
Nolo's online articles on employee rights explain these rights in detail. However, once you have figured out that your legal rights may have been violated, what should you do about it? Here are several steps you can take to assert your legal rights.
1. Talk to Your Employer
In many cases, your first step should be talking to your employer. An intelligent discussion can resolve most problems or, at least, get your differences out on the table. Most companies want to stay within the law and avoid legal tangles. Unless you work for a truly uncaring and antagonistic employer, your situation is most likely the result of an oversight, a misunderstanding, or a lack of legal knowledge.
Here are a few tips on how to present your concerns to your employer:
- Know your rights. The more you know about your rights going into the conversation, the more confident you will be in presenting your problem. And, if your company is violating the law out of ignorance or by accident, you can point out what's going wrong.
- Stick to the facts. Before meeting with your employer, write a brief summary of the problem and your recommendation for resolving it. It might help to have someone more objective, such as a friend or family member, review the facts and brainstorm with you about possible solutions. Make sure not to leave out any important facts or get anything wrong. Go back through your records to make sure your recollection of dates, figures, and events is accurate.
- Don't be overly emotional. Dealing with a workplace problem can be stressful, but unfounded accusations and emotional outbursts won't help you get your point across. If your job is on shaky ground, try not to make the situation worse by losing your temper. Practice your presentation ahead of time to make sure you can remain professional and calm.
- Be discreet. Discussions of workplace issues should take place in private. Employment problems can be divisive and upsetting, not only for those involved but for others, too. You don't want to be accused of poisoning the workplace atmosphere or forcing coworkers to take sides. Ask for an appointment to discuss your concerns privately with a supervisor or manager.
- Decide the next steps. Before finishing your discussion with your employer, come to some agreement about what will happen next. Will the company investigate the problem? Will your boss talk to your coworkers or your supervisor? Will evaluations, job responsibilities, or reporting relationships be changed?
- Follow up. Once you have spoken to your employer, make sure to stay in touch. If your employer promised to investigate the matter or talk to other employees, check back to find out the status of those actions. After a few weeks have passed, schedule another meeting to discuss what progress has been made in resolving your problem -- and what still needs to be done.
2. Document the Problem
In addition to talking things through with your employer, protect yourself by documenting the problem. Take notes of key conversations and events, including the time, date, and names of others who were present. Gather documents that might support your side of the story, such as company policies, offer letters, performance reviews, memoranda, emails and other correspondence, and employee handbooks.
Be careful, however, to collect only those documents you have legitimate access to. Taking or copying confidential documents -- even if they are related to your dispute -- could get you fired and could compromise your legal claims.
If your coworkers saw or heard any of the incidents that contributed to the problem (such as a verbal performance review, a harassing comment, or a search of your workspace), ask them to write down what they saw and heard in signed, dated statements.
3. Consider Legal Action
If your employer doesn't seem to be taking your complaint seriously, or you are demoted or fired, consider whether to take legal action. In making this decision, you'll need to take a close look at your motives, your evidence, and your willingness to spend the time and money that legal action requires.
- What results do you want? If you're expecting a multimillion dollar payday, think again: Although such judgments exist, they are very few and far between. The vast majority of legal claims never get to trial. If you're angry, seeking revenge, or hoping to show the world you were right all along, keep in mind that emotions like these don't provide a strong basis for a lawsuit -- and could lead you to make poor decisions going forward. If what you want is relatively simple (for example, you want a letter of recommendation or a retroactive pay raise to the date when you should have been promoted), try negotiating with your employer for those things.
- How strong is your case? The success of any legal claim depends on the strength of the evidence. To win, you will have to show -- with documents, preferably -- that your rights were violated. Strong feelings or suspicions are not the same as evidence. To find out how good your claims are and whether you are likely to win, you should consult with an experienced employment lawyer.
- Can you afford a lawsuit? Prosecuting legal claims takes a lot of time -- time you might better spend finding and excelling at a new job. Lawsuits also cost money. If your case is strong, you may find a lawyer willing to take it on a contingency basis, in which the lawyer's fees come out of the money you win. Even so, you will probably have to pay the costs of bringing the claim along the way, which can be substantial. And that contingency fee could be 25%, 33%, or even 40% of what you ultimately collect.
If you decide to go forward, make sure you meet your legal deadlines. The law sets time limits (often called "statutes of limitations") for filing certain types of claims or lawsuits, ranging from several weeks to several years. If one of these deadlines applies to your case, you will have to think sooner rather than later about whether to go to court. You might want to consult with a lawyer about your problem to figure out how strong your claims are, whether any filing deadlines apply to your dispute, and what you might expect to gain or lose if you file a lawsuit.
For More Information
For detailed information on employee rights at work, get Your Rights in the Workplace, by Barbara Repa (Nolo).