During the twenty-plus years that I have practiced employment law, I rarely come across an employee statement or rebuttal that helped our lawsuit. In fact, the opposite is true. Usually, no matter how carefully written, these statements end up being used against my clients. If you are having issues at work, I am not suggesting that you don’t keep notes or write a narrative describing workplace conduct. Just don’t give it to your employer! You can’t take it back and it will be part of any lawsuit we file in the future.
Let’s make one thing clear—the responses and rebuttals I am talking about are not those requested by employers as part of workplace investigations or inquiries. The failure to cooperate during these proceedings is called insubordination and will likely lead to further discipline or even termination. An employer has the right to investigate complaints and issues in the workplace. The responses and rebuttals I am talking about are the point-by-point rebuttals of disciplinary actions, performance reviews, and coaching that employees always seem to want so “there is something in their employment file.”. Some people tell me that they “wanted something in their personnel file with their side of the story.” Others want to “explain” what happened. And, unfortunately, some are just submitted without any thought at all.
I almost always cringe when I see these documents, (which sometimes consist of multiple single-spaced pages). Why? I cringe because I know there will be something in there that will likely hurt your lawsuit. If you feel the need to rebut or respond to your employer, go ahead and write everything down. But do not turn it in to your employer. On the top of the page, write: “Notes For My Attorney” and keep it in a safe place.