Some of the following items may, or may not, be useful for workers outside of Maryland but this list is specifically intended for Maryland workers.
1. KEEP CALM.
There is no advantage to you legally in losing your mind, your cool or your wits when you get the news that management has fired you. (By “fired” I am including all forms of the termination of your employment – “lay off”, “RIF”, “RIP”. “discharge”, “downsize”, “let you go”, etc.) Keep your wits – you will need them. While it is not always easy to maintain your control over your emotions when facing a major stressor like a firing, particularly if unexpected, it’s easier to maintain your cool then if you decide now that if you are ever fired, you will maintain your cool for 90 minutes thereafter.
If first graders can be taught to “stop, drop and roll” if they are literally set on fire, you can decide and follow through on keeping calm and cool if you get the bad news of a firing. Keeping cool is important for a great many reasons, including better decision-making and record-keeping, more successful interactions with your lawyer, better negotiations for severance if applicable and for making you not look like a fruit loop basket case in front of jury if it gets to that point (I don’t use that terminology professionally to describe emotional or mental illnesses but a jury of your peers might.) Be like Fonzie and keep cool.
2. WRITE IT HAPPENED AS SOON AS POSSIBLE.
When you get the news of the firing, write down in ink on dead-tree paper at your first safe, private and orderly chance all events that you can recall leading up to the firing, including:
- everything said by everyone in the conference where you got the news (if applicable)
- every fact and every disputed fact leading up to the firing decision
- the name of everyone you can think of in the company with their job titles and what they know about your situation
- the name of everyone present when you got the news
- a list of every document – paper, electronic document, video, Tweet, Facebook, you name it – that has something to do with this case
I strongly urge getting from a dollar store a hard-bound composition book – the ones with the untearable covers – such as those sold to parents of 3rd graders. The books are resistant to tearing and somewhat resistant to spills or splashes. You will need this book for a long time if you have a case, and it’s a great place to put evidence of your efforts to get new employment going forward.
3. IF THEY TELL YOU TO LEAVE, LEAVE
You do have the right to get your belongings in a general sense, and can conceivably sue your employer in “replevin” or “detinue” if it persists in refusing you access to your personal items at some reasonable occasion. But if management tells you to leave the premises, politely request to remove your personal items first. If they refuse, respectfully note your objection (I suggest using an indoor voice and using the adverb “respectfully”) and cooperate with their supervisor’s or security officer’s instruction to vacate the premises. You do not want to earn a disorderly conduct or trespassing charge before you speak with your lawyer; if they tell you to leave, leave – even if (especially if) it’s unfair.
4. SIGN NOTHING WITHOUT CONSULTING WITH LEGAL COUNSEL
Do not sign any piece of paper without your attorney looking at it or discussing it with you, unless your attorney otherwise advises you. While some post-employment agreements are void or voidable for some cancellation or “think it over” period after signature, you would need to have legal counsel in order to interpret the enforceability of those clauses so it’s a Catch-22. I would not recommend even signing an endorsement on one’s last paycheck or timesheet without consulting with legal counsel.
5. CONSULT WITH AND FOLLOW THE ADVICE OF LEGAL COUNSEL
If you get fired, it’s time to talk with a lawyer, at least briefly. You will need to discuss a number of things with your attorney, including access to unemployment benefits, possible wrongful termination, discrimination or breach of contract claims, covenants not to compete, solicit, disclose or use employer’s intangible assets, severance benefits or negotiations for the same and the possibility of an agreed reference. If you don’t have an attorney already, my office can assist you in Maryland at 410-561-6061 but if you don’t call me, fine; get another attorney immediately. I recommend making the call from the parking lot on the date that you get the bad news, before you drive away.
If your attorney tells you to do something, do it. If your attorney asks you a question, answer it and answer that question. Your attorney initially will likely not want to hear a once-upon-a-time story; employment legal consultations often turn on a fairly short number of factors and we need to get that information and little else before we can help you.
6. UNLESS OTHERWISE DIRECTED BY LEGAL COUNSEL, FILE FOR UNEMPLOYMENT IMMEDIATELY
In Maryland, do this, do this exactly and do not deviate right or left from this instruction – unless a lawyer with valid and up-to-date malpractice insurance tells you not to file for UI benefits. While you may or may not be entitled to benefits for some or all of the period of unemployment, you should file immediately unless an attorney with malpractice insurance is willing to stick his or her law license on the line and tell you not to file. Make the lawyer prove he or she has malpractice insurance, and call his or her carrier to make sure that the policy is real and paid up to date.
7. DISCUSS THE CASE WITH NO ONE BUT YOUR LAWYER, YOUR RELIGIOUS MINISTER AND YOUR MENTAL HEALTH PROFESSIONAL
There is a privilege for confidential marital communications in Maryland courts, but I don’t recommend that you discuss the merits of your case with your wife or husband. Why? Because I don’t trust your spouse or his or her 15 closest friends. Sorry if that’s rude.
I generally trust the professionalism of attorneys and mental health professionals and the vocational commitments of clergy to keep confidential matters confidential. Most such communications are also privileged under Maryland law, such that they may not be compelled to testify in your case without your permission. Again, if your lawyer armed with malpractice insurance tells you to discuss your case with other people, follow that lawyer’s advice.
For employment law cases involving significant emotional trauma, there may be more than one mental health professional in the case; there may be several (one who counsels you or prescribes medicine, a Plaintiff’s expert, an “independent” i.e. management expert, etc.) I strongly encourage my clients who have endured emotional trauma to consult with mental health professionals and have declined legal work for prospective clients when they have refused. I urge this for three reasons: a) I want my client to heal; b) I want someone qualified to provide a record of the emotional harm; and c) I have absolutely no interest in trying to be a mental health support system myself when law practice, not counseling, is my wheelhouse.
8. UNLESS OTHERWISE DIRECTED BY LEGAL COUNSEL, SEEK NEW EMPLOYMENT IMMEDIATELY.
Maryland law and most of the federal statutes providing remedies for wrongful termination (defined broadly here) require a fired worker to seek alternative employment promptly. Unemployment benefits in Maryland require weekly employment attempts as a condition for eligibility. The duty to seek alternative employment is part of the general duty of an injured person to mitigate damages. Not only do damage mitigation efforts constitute a legal requirement but they can have a powerful effect on more conservative jurors to “bring them around” and on the analyses by management counsel of the settlement value of the case.
I usually advise my clients to apply for temporary work through temp agencies even if that work is outside their regular field of endeavor; I do so because
- I want them to re-earn into the unemployment benefits system as soon as possible through wage credits;
- I want their unemployment benefits to stretch as long as possible and
- I want a robust, solid record of employment in case DLLR decides to run a check on the “able, available and actively seeking work” requirement or a penalty for a work refusal.
If your attorney tells you not to look for work, ask her or him why, but in the end you should follow your attorney’s advice.
9. COMPILE YOUR DOCUMENTS
Here are some of the documents you may wish to have ready for your employment law case, compiled and securely scanned.
- Tax returns state and federal for the last 4 years
- All employment manuals, memoranda, policies and procedures
- All employment letters, agreements, reprimands, counselings, warnings, commendations, promotions, etc.
- All emails from, to or with any other employee – peer, supervisor or subordinate
- All documents reflecting efforts by you to discuss, dispute or resolve any problem with or at the employer
- All documents reflecting harm to you and efforts by you to mitigate harm (some of which may be in your hard-backed composition book noted above) – financial, career advancement, back pay, front pay, emotional damages, etc.
I suggest consulting with legal counsel regarding the best mode for the storing those documents (dead tree paper, electronic storage on a thumb drive, cloud storage, etc.) and exactly what documents and folders you should set up for collection and maintenance for your case.
10. CONSIDER GETTING A SUPPORT GROUP (UNLESS YOUR LAWYER SAYS OTHERWISE)
I recommend thinking about getting a support group to assist you with the career transition that comes with unemployment. I do NOT recommend that you discuss the circumstances of your firing with a support group, but do recommend that you consider discussing your efforts to find new work and to adjust to strained financial and career circumstances in the aftermath of a firing, particularly if you have been in the same career path or job for a long time.
Seeking out support might help you to maintain perspective, connect to community resources and possible job leads and enable you to outlast psychologically the blow that a job loss can be for many workers. We in America tend to identify ourselves with our jobs more so than some other cultures; in other cultures, tribe, religion, family, geography, ethnicity, ideology or other sociological affiliations might matter proportionately more than work does in America for many workers. “What is he?” “He’s a plumber/lawyer/salesman.” sounds like a natural conversation in America; it might sound less natural in other cultures where work certainly has a role, but a less critical one in terms of a person’s identity.
I am not telling you to go to a support group, but to think about going. Discuss support groups for workers in career transitions/disruptions with your attorney. If your attorney tells you not to do this, don’t do it. Follow your lawyer’s directives.