Employee Rights in Disciplinary Actions

Employee Rights in Disciplinary Actions

 Lots of employees refuse to sign disciplinary notices. Whether it's a counseling, warning, written reprimand, or suspension, anything before you're terminated is something you should sign. Why? Because refusing an order to sign it just might be considered insubordination. It also makes you look like a. a jerk; b. unprofessional; or c. like you don't know what you are doing. Refusing to sign doesn't make it go away. They'll probably write on it, "Refused to sign." That looks good come promotion time, doesn't it?  

But I disagree with what it says! Okay, so what? Unless the document says that your signature certifies that you agree with it, you're just signing that you received it. But I'm a cautious sort, so I recommend, just to be sure, that you sign, "As to receipt only, written rebuttal to follow." If it does say you certify that you agree with it, then write, "I disagree with this document and am signing as to receipt only." Get a copy. Always get a copy of everything you sign.  

What do I put in the rebuttal? You want to be factual. This is not the time to insult your boss, complain about professionalism, or air general grievances. You need to be specific about what is untrue in the document. If you have proof, attach it. If you have witnesses, list them (but remember, most coworkers will lie to save their jobs, no matter how much you think they're your friends). The next question you need to ask is whether you were treated differently than others of a different race, age, sex, religion, color, national origin, genetic information; who wasn't disabled or pregnant; or who hadn't recently taken Family and Medical Leave, made a worker's comp claim, or objected to illegal activity. In other words, were you singled out due to some legally protected status? If so, now is the time to point that out.  

But I don't want to go there Why the heck not? First of all, the Supreme Court says if you're being harassed or are in a hostile environment due to a protected status, you have to complain under the company's harassment policy. Don't look at me like that. It's not my rule. It's the Supreme Court's rule. I know it's not practical. It's scary to go there. But they say you have to if you want to preserve your right to bring those claims down the road. Second, if you complain about discrimination, whistleblower retaliation, FMLA retaliation, worker's comp retaliation, or something legally protected, then you're also legally protected from retaliation for complaining. So you not only should attach your discrimination complaint to your disciplinary notice, but you should also send it to HR or whoever is listed in the harassment policy. Call it a "Formal Complaint of [Racial, Gender-based, Religious, etc.] Harassment" and detail how you were singled out. List everyone of a different status who did the same thing who wasn't disciplined, or who wasn't disciplined as severely. List any comments your supervisors made about your protected status. Then you give them a chance to investigate. Don't expect much, but this will help you down the road if you ever do decide to take legal action.  

You Didn't List Termination Papers As Something I Should Sign Ah, I'm tricky that way. You're already gone. Why should you cooperate with anything the now-former employer wants you to do? I recommend against signing termination papers unless one of the following situations exists: ·       

  • The employer offers a severance package. Then you sign the termination form, "as to receipt only," get a copy of the form, get a copy of the proposed severance package (which you should not sign yet) and take them to a lawyer to review.        
  •  The employer is offering positive references and/or says they won't challenge your unemployment. Again, sign the form, "as to receipt only," and get a copy of the form.

Always get a copy of the termination papers, whether or not you sign. If they won't give them to you, don't argue. I'm not sure what the point of not giving them would be, so maybe some of my HR readers can enlighten me. Most employers don't have to give you anything in writing about your termination. A few states do require they provide some sort of notice of termination so you can apply for unemployment, but most don't. Many employers won't even give a reason for the termination. That's because they don't have to.  

What About Exit Interviews? Why would you put yourself through that? In most cases, don't bother. They don't care what a disgruntled ex-employee has to say. If you have a discrimination situation, put it in writing if you want to complain. Anything you say in an interview, and some things you never said, can and will come back to bite you later. If you complain verbally about discrimination, many HR people will deny it later. I've seen people who were accused of making threats or engaging in inappropriate behavior in exit interviews. Why be alone with Darth Vader? Just so they can see you cry or get angry? Fuhgeddaboudit.

See more employment law posts on Donna Ballman's blog,  Screw You Guys, I'm Going Home.  Donna Ballman is the award-winning author of The Writer's Guide to the Courtroom: Let's Quill All the Lawyers, a book geared toward informing novelists and screenwriters about the ins and outs of the civil justice system.  She's been practicing employment law, including negotiating severance agreements and litigating discrimination, sexual harassment, noncompete agreements, and employment law issues in Florida since 1986.  Follow this link to view her full bio.

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