Top 5 ways to Torpedo Your Employment Claims (What Not to Do)

At Bodzy Law, we are all about maximizing the value of your claims.  Here are five things to avoid, so that you do not undermine the value of your claim before you even get started with the legal process:

1. Quitting

Employment claims generally require an “adverse employment action,” which means that your employer has to take action against your job.  Generally, in our cases, that adverse employment action is a termination; meaning your employer ended your employment.  If you quit, resign, or leave your job before your employer fires you, then it becomes much harder to prove your legal claim because your employer will argue that it did not take adverse employment action against you.  

Sometimes you can still pursue your legal claim if you can prove that your employer’s actions were so intolerable that you had to quit.  This is called a constructive discharge.  But proving constructive discharge takes the focus away from your employer’s actions, and it shifts the focus to whether your decision to quit was reasonable.  In our experience, this diminishes the value of your claim.

So, what do you do if you are stuck in a job where your employer is acting illegally?

• No job is worth risking your mental health.  Prioritize your mental health over the value of your legal claim.
• If you are in a position where things are so intolerable that you have to quit, document that the reason that you are quitting is because of the employer’s illegal actions.  Send an e-mail explaining that when you resign.  Do not soft-peddle the reasons why you are leaving, just to avoid burning bridges.  
• Do not fall into the trap of resigning to avoid having a termination on your “record.”  Most employers provide neutral references (that do not say why you are separated) as a matter of policy anyway.  If an employer offers you an opportunity to resign, instead of being terminated, they are not doing you a favor.  They are trying to protect themselves against your future legal claim.

2. Accepting Severance without Negotiating

It is much cheaper, from an employer’s perspective, to get you to sign a release in exchange for a few weeks or a few months of severance, than it is to deal with your employment claims.  Once you sign a severance agreement, you are likely releasing all of your claims against an employer, so you cannot take legal action.  If you accept the severance that the employer offers, the employer saves on attorneys’ fees, and they are usually getting you to accept way less than your claim is worth.  That is the entire point of the employer offering severance to you in the first place.  

In our experience, usually an employer will offer more severance if you negotiate, and they will typically negotiate even higher if you are represented by an attorney.  That’s why we help clients negotiate the amount and terms of their severance, so they can maximize the value of their claims.

3. Going Out in a Blaze of Glory

It is so tempting to tell your boss off on your way out the door, particularly when you have endured illegal treatment.  Resist the temptation to tell your boss where they can shove it, if you want to maximize the value of your employment claim.  

When you throw a tantrum on your way out the door, it shifts the focus from the employer’s illegal actions to how you reacted.  Your tirade never plays well in litigation.  As you communicate regarding your exit, use a professional but firm tone in communicating about the illegal reasons that prompted your termination.

4. Posting or Prompting

Everything that you post on social media, and everything that you prompt to AI regarding your employer and your legal claim will be discoverable in litigation.  Here are some examples of how social media posts or AI prompts can be used against you:

• If you are prompting ChatGPT to tell you the value of your retaliation claim the day before you leave your job, your employer will spin a narrative about you trying to contrive a claim for money.  
• If you tell your LinkedIn contacts that you were part of a company restructuring, and then you later claim that you were illegally terminated, your employer will use the post against you to question your credibility.  
• If you are claiming that your employer destroyed your mental and emotional state, but your Instagram story shows you clubbing with friends at 2 am with a big smile on your face, your employer will use that against you.  

The best path is to avoid mentioning your employer or your legal claims as you engage on social media and AI.  You should think carefully about how your posts and prompts will portray your mental and emotional state after an illegal termination.

5. Spoliation

Once you anticipate legal action, you have a legal obligation to protect all of your documents and data for use in litigation.  If you don’t take steps to preserve everything that is relevant, the employer will accuse you of “spoliation,” which is just a legal term that means failure to preserve data or documents.

If you anticipate a legal claim with your employer, you cannot close or delete accounts, wipe devices, or otherwise get rid of documents and data that may be relevant to your claim.  Think carefully before trading-in your phone or computer about how to back-up any relevant data.  If you delete something that could be relevant to your claim, an employer will make it look like you were trying to hide something, even if you were not.  In cases of intentional deletion, an employer can even ask a judge or jury to rule against you and dismiss your claim.  You could also be unintentionally making it more difficult to prove your case, if key evidence is deleted.  Make sure to preserve all of your data about your employer and your legal claims.

Conclusion

Contact us at Bodzy Law if you want to learn more about how to maximize the value of your legal claim.  We are here to help, and we are always glad to discuss how to maximize the value of your employment claim.