To increase the chances of having an attorney take your wrongful discharge case, there are important documents that you should collect before you contact the attorney. All of these documents are important in deciding whether you have a case that can be won in court. And even though very few cases actually end up in a trial, your attorney will look at your case as if it may go to trial. The reason: both the employee side attorney and the employer side attorney evaluate the worth of a case by the likely outcome in court. If the case is likely to be dismissed by the judge before trial, the employee side attorney will recognize that the time and costs that must be spent on the case may not be worth the likely recovery. The employer side attorney may advise the client that its money will be better spent paying the lawyer to try to convince the judge to throw out the case, than to pay the employee to settle.
So what are these documents?
1. Signed agreements about employment status. Employers often require employees to sign agreements upon hire. The agreements may be acknowledgements of receipt of employer policies such as handbooks, non-compete agreements, or a mandatory arbitration policy. The agreements might also include terms and conditions of employment, such as salary or wages, the at-will status of the employee, or the time within which the employee has to file a lawsuit against the employer. All of these documents are important to the evaluation of a possible wrongful discharge claim.
2. Termination and discipline notices. Your attorney will want to know the reason or reasons the employer provided for your termination. In rare cases, the notice of termination may reveal an illegal or improper motive. More often it will be necessary to disprove the reason offered and to show that the stated reason for the termination was really something else. Because employers rarely will admit that the reason for a termination was illegal (such as discrimination based on sex, age, disability, or because the employee was whistleblower, etc.), your attorney will want to know if you agree or disagree with the reason offered by your employer and why. In most cases, your employment lawyer will need to collect evidence to show that reason offered was not true, not the real reason for the termination, or insufficient to justify termination.
3. Employee handbooks. Employee handbooks are important to share with your attorney because they may include policies relating to when employees are to disciplined, work rules, and other information that may be useful in crafting the papers that need to be prepared before a lawsuit may be filed. Handbooks may also contain express or implied agreements described in item no.1 above.
4. Performance evaluations. Many employers routinely prepare written performance evaluations on their employees, usually on an annual basis. These evaluations can be used to prove that the reason offered for the employee's termination was actually a false reason or pretext for an illegal termination. It is especially helpful if the performance evaluation is provided shortly before the termination and it contradicts the reason given for the termination.
5. Texts and emails. If your employer notifies you of your termination or discipline electronically, such as through an email or text, your employment attorney will want to see this information. Often texts and email are more likely to reveal information that will be more useful in a wrongful discharge suit than a letter. Texts and email are often sent without review or approval and may capture an "off the cuff" remark that might not be included in a more formal communication.