If you are an employee, had your job terminated, and are even thinking you may bring a legal claim against your former employer some day, please know that you should keep documentation relating to your job search efforts.
You may ask, “What does my job-search or new employment have to do with what my old employer did?” The answer: for most common employment claims (e.g. a claim your termination violated discrimination law), the offending employer can be held responsible for wages you lost (or “back pay”) from the date of your termination forward. An offending employer could try to legally reduce or eliminate the back pay it has to pay you by claiming that you didn’t look hard enough for a new job (or that you “failed to mitigate damages” in legal speak).
To avoid this potential argument that you failed to mitigate damages or look hard enough for work, you should keep documentation of your job-hunting efforts to remove any doubt that you made reasonable efforts to find work.
What Documentation You Should Keep
To keep good documentation of your job-search efforts, you should:
- Keep or record information about every prospective employer you contact (e.g. write down the prospective employer’s name, date of call/visit, what job position you inquired about, rate of pay, etc.).
- Save copies of job-application-related documents (e.g. job ads you reviewed, applications you sent, cover letters, resumes, rejection letters, etc.).
- Save copies of unemployment-related documents you have (e.g. Wisconsin’s Unemployment division requires that an unemployment claimant-employee contact at least two prospective employers per week, and to keep documentation to that effect).
If you keep these forms of documentation, you will be in a better position for any future legal claim against the employer who terminated your employment.
Many employees file discrimination complaints with Wisconsin’s Equal Rights Division (ERD) without retaining an attorney. If you are an ERD complainant without an attorney, and you just received a “probable cause” determination, you may be wondering “now what?” Or at least you should be. In the time following a probable cause determination, things will get more formal and legalistic. You should get the most information you can about what’s to come.
Below, I’ll discuss what a “probable cause” (PC) determination means, what a “no probable cause” (NPC) determination means, and what each determination may mean for you. Bad news first.
Employees, employers, retirees and everyone else should check out this outstanding post by Professional Life Coach Tim Brownson: “5 Questions That Will Change Your Life.” Mr. Brownson arms readers with 5 questions that you should ask when facing any important life decision- I should note, these questions directly apply to any employment dispute or litigation that you are considering.
The magic questions are these:
If you listened only to corporate-based rhetoric, you would get the following impressions about individuals who sue organizations:
- Frivolous lawsuits are out of control, and too many huge verdicts are being awarded to individuals who spill coffee on themselves and the like.
- There are too many individuals- including employees, consumers, injured persons and attorneys- who are “extortionists,” and are filing frivolous lawsuits to look for a quick (and large) buck.
- “Tort reform,” and restricting individuals’ access to the legal system, is needed, or else businesses may not financially survive.
As someone who works with individuals bringing legal claims, I see many problems with these concepts, which mischaracterize the state of the world as I experience it.
If you are an employee in Wisconsin and feel you are (or were) being sexually-harassed, you should know the following:
(A) Know how the law defines sexual harassment;
(B) Keep proof (documentation or recordings);
(C) Learn your employer’s policies before complaining or taking action;
(D) Do not act angrily or righteously;
(E) Before complaining, consider the risks of retaliation;
(F) Proactively arrange for Plan B (e.g. a new job, or transfer to different boss); and
(G) Don’t quit because the employer tells you to.
This information is described in more detail below.