IF YOU SEE THE WRITING ON THE WALL…
WRITE BACK!
By
Neil Patrick Parent
In this fragile economy, loss of one’s job is a specter that looms large over every working person in the country. But people generally do not get fired
out of the blue. There are usually signs, whether it is an individual who is to be terminated, or an entire group of employees. You may be excluded from
meetings. Former large-scale projects may suddenly not be referred to anymore. You may begin to be treated harshly by, or start hearing negative comments
from, a supervisor. Other colleagues may begin to avoid you or suddenly stop talking when you enter a room. Not all of these are signs that something bad is
going to happen, but they don’t bode well. People often say, in retrospect, that they “should have seen it coming”, that they “could see the writing on the
wall.” (See the Old Testament, Book of Daniel 5:1-31.) Our experience has shown that if you do “see the writing on the wall”, the best thing to do may be to
write back.
If you believe you are about to lose your job, being proactive may ease the burden, or even save your employment. Many people are fired individually, or
included in larger numbers of employees laid off in what is commonly called a “reduction in force” or a “RIF”, who could avail themselves of protections built
into the law (See “The Law”, below), but the ability to effectively use these protections is often impaired if they are raised only after the fact.
If you believe you are the subject of discriminatory employment practices, abusive or harassing behavior in the workplace, or are in a hostile workplace
environment, it is always incumbent on you to make that fact known to your employers. But if you are let go, failure to have done that can hamper your ability
to object to your termination or to seek redress because of such practices. Understandably, many if not most, people who are the victims of such practices
are primarily concerned in keeping their jobs and don’t want to “rock the boat”. They make the deliberate decision that it is better to suffer from an abusive
boss, or to be given less lucrative assignments because of their age or gender, than to be marked as an uncooperative worker, a “complainer” or to suffer the
inevitable negative reaction by a person you have complained about, more so if that person is your superior.
But most employers of even moderate size, issue a document called an “Employee Handbook” that contains an anti-discrimination and harassment policy.
Sometimes these provisions are contained in a separated stated set of “company policies”, also made available to all employees. Many companies maintain
these documents or make them available on-line on their intranet. Sometimes their protections extend to categories of people or behavior beyond what is
provided in the law (See “The Law”, below).
Typical policies protect employees from discrimination and/or harassment in any form, whether verbal, physical or environmental, which is directed toward a
person’s sex, race, age, marital status, disability, religion, national origin, veteran’s status, sexual orientation or any other classification protected by federal,
state and/or local law. They might further go on to give examples of behavior, such as unsolicited remarks, gestures, or physical contact; display or circulation
of any materials which may adversely affect any person, and are
related to their [protected status]; and/or verbal abuse or insults directed at or made in the presence of members of a racial, ethnic or minority group.
These documents will also typically provide the rules and lay out the roadmap for making a complaint about such behavior or practices. Most provide that
complaints must be made in writing, although an e-mail will usually suffice and is often better than a paper document, copies of which can get lost. Invariably,
complaints are required to be made to the company’s Human Resources Department and are almost always kept in strict confidence. The company’s policies
also prohibit any form of retaliation for having made a complaint.
These policies are designed to encourage justifiable complaints and not to inhibit them. (Of course, the corollary to this is that if accusations are made in a
complaint, they must be true and accurate. Making false accusations is almost always grounds for termination.) You should never make a false or frivolous
complaint in an effort to save your job, but if you have a legitimate grievance, it could be a vital help to you.
The benefit of having made a complaint in advance of any adverse action is that 1) it makes any defense you might have more credible and 2) it makes a claim
that your subsequent termination may be in retaliation for having complained more viable. And it usually does not matter that the complaint was made months,
even years, in advance of termination. In our practice, we were able to achieve a positive outcome for a woman who lost her job as part of a RIF, in part
because two years before, she had made a complaint of sexual discrimination against her then boss, who subsequently became the CEO of the company and
was responsible for selecting her, from among a number of other potential candidates who had not complained about him, to be included in the RIF.
If you do find yourself in uncomfortable working conditions that violate the law or company policies, your natural instincts to keep your head down and suffer
in silence can really work against you. Waiting to complain of discriminatory, harassing or abusive behavior or a hostile workplace environment until you have
been fired, or warned that you are about to be fired,
dramatically limits the use of these facts to save your job or receive mitigating compensation. The credibility of these complaints is undermined by the fact that
they were not made in advance of any threat of termination of employment, even though the right to make such a complaint, the confidentiality, protection
against retaliation and the method of making such a complaint were clearly available all along. After all, if it was important to you then, or if it existed at all,
why didn’t you say something?
Companies, and especially Human Resources Departments, tend to take complaints seriously and are usually obligated to undertake an independent
investigation. (Intentional employment discrimination can carry penalties to the employer that may include corrective action, monetary damages and other
remedies, so failure to take a complaint seriously or conduct an investigation can subject the company to significant liability, especially if the practice
complained of is particularly widespread or affects a large number of people who are in a “protected class”.)
Many employees may find this investigative process uncomfortable, especially if they are making an accusation against another individual. You should not
expect a warm and fuzzy reception from the Human Resources personnel doing the investigation. They are there primarily to protect he company. It is their
role to be skeptical and to find out what the accused, or potential witnesses have to say before coming to a conclusion. Until your allegations are borne out by
their investigation, they may not seem terribly sympathetic to your cause. However, it is worth noting that if a complaint is made in accordance with the
company’s procedures referred to in the Employee Handbook and protections announced there are not enforced, it could give you further grounds to make
claims that might submit the employer to even further liability. In other words, if the company does not respect your confidentiality (which, obviously, and
especially if the complaint is made that a certain person did a certain thing to you, may be difficult to keep completely – due process requires the accused be
entitled to know the identity of his accuser and the evidence against him), or the company or the supervisor complained about try to “make your life miserable”
to encourage you to quit or to actually fire you in retaliation for having complained, it could bolster your case and go much worse for them.
It is vitally important to be specific in your complaint and able to martial factual events, relevant times and dates, or at least approximations of them. Witnessed
behavior is important, but not necessarily required. In making a complaint, it is a good idea to prepare a chronology of events and refer to your calendar and e-
mail logs to support it. Such documentary evidence that supports your claims can be very difficult to overcome. You may want to engage the services of an
experienced employment lawyer to assist you in this process.
The point is, however, not to wait. The closer in time that your complaint is made to the terminating action, the less it is worth. So if you see the writing on
the wall, don’t wait. Write back!
The Law:
Corporate policies typically follow, and as noted, sometimes exceed, numerous laws that protect employees from discrimination and retaliation in the
workplace, and these laws may extend to discrimination in the selection of who is to be laid off or terminated in a RIF . Among these federal laws are:
• Title VII of the Civil Rights Act of 1964, that prohibits employment discrimination based on race, color, religion, sex (but not sexual
orientation) or national origin;
• the Age Discrimination in Employment Act of 1967 (the “ADEA”), that protects individuals who are 40 years of age or older; and
• Title I and Title V of the Americans with Disabilities Act of 1990 (the “ ADA ”), that prohibits employment discrimination against qualified
individuals with disabilities.
You should note that certain laws apply to private sector employers only – whether for profit or not-for-profit – while others apply to government employees.
Federal, state and local laws provide an array of protections and remedies to workers, and your lawyer can advise you about what laws might apply in your
situation.
This article is not intended to provide legal advice to any person or group. Those requiring specific legal advice should contact an attorney with experience in
the field.
Neil Patrick Parent is a partner in the Manhattan-based law firm of Reavis Parent Lehrer LLP. The firm has a practice area concentrating in
employment law and the representation of companies, organizations and individuals in connection with a wide range of employment matters,
including counseling, dispute resolution, mediation and litigation.
Reavis Parent Lehrer LLP
Partners, Counsel, Associates and Affiliated Attorneys admitted in
New York, California , Connecticut , Australia , England and Wales
www.rpl-law.com
WRITE BACK!
By
Neil Patrick Parent
In this fragile economy, loss of one’s job is a specter that looms large over every working person in the country. But people generally do not get fired
out of the blue. There are usually signs, whether it is an individual who is to be terminated, or an entire group of employees. You may be excluded from
meetings. Former large-scale projects may suddenly not be referred to anymore. You may begin to be treated harshly by, or start hearing negative comments
from, a supervisor. Other colleagues may begin to avoid you or suddenly stop talking when you enter a room. Not all of these are signs that something bad is
going to happen, but they don’t bode well. People often say, in retrospect, that they “should have seen it coming”, that they “could see the writing on the
wall.” (See the Old Testament, Book of Daniel 5:1-31.) Our experience has shown that if you do “see the writing on the wall”, the best thing to do may be to
write back.
If you believe you are about to lose your job, being proactive may ease the burden, or even save your employment. Many people are fired individually, or
included in larger numbers of employees laid off in what is commonly called a “reduction in force” or a “RIF”, who could avail themselves of protections built
into the law (See “The Law”, below), but the ability to effectively use these protections is often impaired if they are raised only after the fact.
If you believe you are the subject of discriminatory employment practices, abusive or harassing behavior in the workplace, or are in a hostile workplace
environment, it is always incumbent on you to make that fact known to your employers. But if you are let go, failure to have done that can hamper your ability
to object to your termination or to seek redress because of such practices. Understandably, many if not most, people who are the victims of such practices
are primarily concerned in keeping their jobs and don’t want to “rock the boat”. They make the deliberate decision that it is better to suffer from an abusive
boss, or to be given less lucrative assignments because of their age or gender, than to be marked as an uncooperative worker, a “complainer” or to suffer the
inevitable negative reaction by a person you have complained about, more so if that person is your superior.
But most employers of even moderate size, issue a document called an “Employee Handbook” that contains an anti-discrimination and harassment policy.
Sometimes these provisions are contained in a separated stated set of “company policies”, also made available to all employees. Many companies maintain
these documents or make them available on-line on their intranet. Sometimes their protections extend to categories of people or behavior beyond what is
provided in the law (See “The Law”, below).
Typical policies protect employees from discrimination and/or harassment in any form, whether verbal, physical or environmental, which is directed toward a
person’s sex, race, age, marital status, disability, religion, national origin, veteran’s status, sexual orientation or any other classification protected by federal,
state and/or local law. They might further go on to give examples of behavior, such as unsolicited remarks, gestures, or physical contact; display or circulation
of any materials which may adversely affect any person, and are
related to their [protected status]; and/or verbal abuse or insults directed at or made in the presence of members of a racial, ethnic or minority group.
These documents will also typically provide the rules and lay out the roadmap for making a complaint about such behavior or practices. Most provide that
complaints must be made in writing, although an e-mail will usually suffice and is often better than a paper document, copies of which can get lost. Invariably,
complaints are required to be made to the company’s Human Resources Department and are almost always kept in strict confidence. The company’s policies
also prohibit any form of retaliation for having made a complaint.
These policies are designed to encourage justifiable complaints and not to inhibit them. (Of course, the corollary to this is that if accusations are made in a
complaint, they must be true and accurate. Making false accusations is almost always grounds for termination.) You should never make a false or frivolous
complaint in an effort to save your job, but if you have a legitimate grievance, it could be a vital help to you.
The benefit of having made a complaint in advance of any adverse action is that 1) it makes any defense you might have more credible and 2) it makes a claim
that your subsequent termination may be in retaliation for having complained more viable. And it usually does not matter that the complaint was made months,
even years, in advance of termination. In our practice, we were able to achieve a positive outcome for a woman who lost her job as part of a RIF, in part
because two years before, she had made a complaint of sexual discrimination against her then boss, who subsequently became the CEO of the company and
was responsible for selecting her, from among a number of other potential candidates who had not complained about him, to be included in the RIF.
If you do find yourself in uncomfortable working conditions that violate the law or company policies, your natural instincts to keep your head down and suffer
in silence can really work against you. Waiting to complain of discriminatory, harassing or abusive behavior or a hostile workplace environment until you have
been fired, or warned that you are about to be fired,
dramatically limits the use of these facts to save your job or receive mitigating compensation. The credibility of these complaints is undermined by the fact that
they were not made in advance of any threat of termination of employment, even though the right to make such a complaint, the confidentiality, protection
against retaliation and the method of making such a complaint were clearly available all along. After all, if it was important to you then, or if it existed at all,
why didn’t you say something?
Companies, and especially Human Resources Departments, tend to take complaints seriously and are usually obligated to undertake an independent
investigation. (Intentional employment discrimination can carry penalties to the employer that may include corrective action, monetary damages and other
remedies, so failure to take a complaint seriously or conduct an investigation can subject the company to significant liability, especially if the practice
complained of is particularly widespread or affects a large number of people who are in a “protected class”.)
Many employees may find this investigative process uncomfortable, especially if they are making an accusation against another individual. You should not
expect a warm and fuzzy reception from the Human Resources personnel doing the investigation. They are there primarily to protect he company. It is their
role to be skeptical and to find out what the accused, or potential witnesses have to say before coming to a conclusion. Until your allegations are borne out by
their investigation, they may not seem terribly sympathetic to your cause. However, it is worth noting that if a complaint is made in accordance with the
company’s procedures referred to in the Employee Handbook and protections announced there are not enforced, it could give you further grounds to make
claims that might submit the employer to even further liability. In other words, if the company does not respect your confidentiality (which, obviously, and
especially if the complaint is made that a certain person did a certain thing to you, may be difficult to keep completely – due process requires the accused be
entitled to know the identity of his accuser and the evidence against him), or the company or the supervisor complained about try to “make your life miserable”
to encourage you to quit or to actually fire you in retaliation for having complained, it could bolster your case and go much worse for them.
It is vitally important to be specific in your complaint and able to martial factual events, relevant times and dates, or at least approximations of them. Witnessed
behavior is important, but not necessarily required. In making a complaint, it is a good idea to prepare a chronology of events and refer to your calendar and e-
mail logs to support it. Such documentary evidence that supports your claims can be very difficult to overcome. You may want to engage the services of an
experienced employment lawyer to assist you in this process.
The point is, however, not to wait. The closer in time that your complaint is made to the terminating action, the less it is worth. So if you see the writing on
the wall, don’t wait. Write back!
The Law:
Corporate policies typically follow, and as noted, sometimes exceed, numerous laws that protect employees from discrimination and retaliation in the
workplace, and these laws may extend to discrimination in the selection of who is to be laid off or terminated in a RIF . Among these federal laws are:
• Title VII of the Civil Rights Act of 1964, that prohibits employment discrimination based on race, color, religion, sex (but not sexual
orientation) or national origin;
• the Age Discrimination in Employment Act of 1967 (the “ADEA”), that protects individuals who are 40 years of age or older; and
• Title I and Title V of the Americans with Disabilities Act of 1990 (the “ ADA ”), that prohibits employment discrimination against qualified
individuals with disabilities.
You should note that certain laws apply to private sector employers only – whether for profit or not-for-profit – while others apply to government employees.
Federal, state and local laws provide an array of protections and remedies to workers, and your lawyer can advise you about what laws might apply in your
situation.
This article is not intended to provide legal advice to any person or group. Those requiring specific legal advice should contact an attorney with experience in
the field.
Neil Patrick Parent is a partner in the Manhattan-based law firm of Reavis Parent Lehrer LLP. The firm has a practice area concentrating in
employment law and the representation of companies, organizations and individuals in connection with a wide range of employment matters,
including counseling, dispute resolution, mediation and litigation.
Reavis Parent Lehrer LLP
Partners, Counsel, Associates and Affiliated Attorneys admitted in
New York, California , Connecticut , Australia , England and Wales
www.rpl-law.com
 |  |  |  |  |  |  |  |  |  |  |  |
| The New York Optimist |
| If You See The Writing on The Wall Write Back! By Neil Patrick Parent |
