An employee will need to gather various pieces of evidence to prevail in an employment dispute. Although it is never a good idea to enter into a working relationship to file a lawsuit, employees can take precautions to safeguard themselves in the event of a conflict.
This consists of several rather elementary metrics. Each employee is responsible for reading and keeping a copy of the employee handbook and any other documentation they signed prior to employment.
Frequently, the employee handbook is viewed as a binding contract between the company and the employee. Many of the rights and obligations that both parties have are typically spelled out in it. It will frequently serve as the beginning point in employment conflicts.
Additionally, workers should maintain copies of all of their timesheets. In a dispute over pay or hours, these will be quite helpful.
Also, if there are any, copies of all performance evaluations and disciplinary records should be requested. Employers can assert in a discrimination action that a worker was fired or reprimanded due to subpar work. It will be clear that the company has a hidden agenda if all or the majority of the employee’s performance reviews are good.
In particular, if they believe that the company is not advocating for them, an employee should maintain copies of any official complaints they have filed against supervisors or coworkers. For instance, if an employee files a sexual harassment claim and can show a history of unresolved complaints, their case will be strengthened.
Before a trial, there is a step called discovery, during which the parties—you as the plaintiff and your employer as the defendant—exchange information about your claim of discrimination and your employment.
According to the legal definition of discovery, parties may obtain information about any non-privileged matter that is pertinent to either party’s claim or defense, taking into consideration the following criteria: “proportionate to the needs of the case,” “the importance of the issues at stake,” “amount at issue,” “the parties’ relative access to relevant information,” “the parties’ resources,” “the importance of the discovery in resolving the issues,” and “amount at issue.”
In plain English, the discovery period is your chance to compile the evidence you need to convince a jury that your employer subjected you to harassment or discrimination.
Different Methods of Discovery
Depositions, interrogatories, and requests for the production of documents are the three most popular types of discovery methods. Particular standards govern this information exchange.
Your superiors, coworkers, and other pertinent witnesses may be questioned about your claims in a deposition by your attorney while they are all under oath. The legal representatives for your company will also be able to have you and the witnesses you name who can speak to your case deposed.
Interrogatories are written inquiries that must be responded to under oath. They typically ask for information you may have regarding particular complaints in your complaint and witnesses who may be familiar with your claims.
You can ask for documents (including paper-based and digitally stored information) that are in your employer’s possession, custody, or control that pertain to your claim of discrimination by submitting a request for the production of documents.
The amount of discovery that may be sought is constrained by the Federal Rules of Civil Procedure. For instance, in federal court, ten depositions can typically be taken by each party, and depositions are limited to seven (7) hours.
In federal court, each side is often only allowed to submit 25 interrogatories. The local rules of the specific court where your lawsuit is filed may have additional limits and criteria for discovery, so you should always examine them.
Common Requests for Information
The parties to a case claiming job discrimination will exchange various pieces of information, including:
- Any complaints you have made, either internally or externally, to the Equal Employment Opportunity Commission (EEOC);
- Any witnesses (coworkers, friends, family, etc.);
- A thorough explanation of the discrimination or harassment you experienced;
- Any documents you have that support your claim; and
- Details regarding the damages you have endured
Employees and plaintiffs similarly seek information on a variety of subjects, such as:
- Your personnel file (including performance reviews, pay information, etc.);
- How the employer has treated your coworkers (or other similarly situated employees);
- Other discrimination claims made against the employer;
- Any investigations the employer may have conducted in relation to the complaint;
- Emails, memos, and other communications regarding your complaint;
- Defenses you may have made.
The aforementioned examples are only a small portion of the types of data that may be requested throughout your litigation because every case is different.
Additional Issues with Discovery
A sad reality of litigation is that opposing parties frequently become mired in protracted disagreements over discovery. One side may object that the other is requesting far too much data and that the effort or expense required to locate and provide it outweighs any potential evidential value.
This defense is frequently used when old electronic records from years ago are at issue, such as emails and computer files (usually referred to as “e-discovery” or “electronically stored material”).
Personnel Records are Discovered in Employment Discrimination Cases
There is a lengthy history of personnel records being uncovered in job discrimination litigation. To prove that an employee had the same performance issues while working for the defendant, the employer-defendant may request access to a plaintiff’s employment records from a previous employer or from an employer the plaintiff joined after leaving the defendant’s employ.
On the other hand, a plaintiff employee may request disclosure of other employees’ records using several different theories. Of course, they are free to look into the records of the person they accuse of prejudice to discover if there is any proof that the accused wrongdoer has a history of similarly objectionable or unlawful behavior.
They may also request access to the records of other employees to use as benchmarks and demonstrate that they were not treated equally to others in the same situation, supporting their allegation that they were a victim of discrimination.
Additionally, a plaintiff may look up the records of other workers to use statistics to refute the employer’s alleged nondiscriminatory justification for its hiring choice.
“No Rigid Rules”
Following the 2015 revisions to Rule 26(a)(1) of the Federal Rules of Civil Procedure, which stressed the significance of the consideration of “proportionality factors” for determining the scope of discovery, the court’s handling of this matter deserves further scrutiny.
The extent to which an employer may establish a privacy or confidentiality interest over employee personnel files must also be considered.
The fact that a “personnel file” can currently be an anachronism is obviously a significant consideration when taking requests of this kind into account.
Any request for personnel records must be adequately described and outlined because records are dispersed throughout Outlook folders, the cloud, human resources software, text messages, emails, and possibly even pieces of paper in numerous locations.
Should I Speak with an Attorney?
Employment conflicts are no different from other types of lawsuits in that a workplace attorney is best suited to handle them. An attorney should be able to identify what proof is required, the best way to get it, and effective ways to use it.