Absent a contract of employment, “at-will employment” is the predominant employment relationship in the United States. Under the system, an employer can fire an employee for good reason, bad reason, or no reason at all. However, an employee may not be fired for an illegal reason, such as racial, gender, or other types of discrimination forbidden by law. And an employer can’t retaliate against an employee who complains about illegal discrimination by his or her employer.
How can you deal with on the job discrimination? Here are some tips.
Tip #1: Information is the Key!
Information is key in the context of an employment dispute – you cannot protect yourself if you do not know whether you have been illegally mistreated. For example, if you are a female employee who suspects comparable males in your workforce are being paid more than you, your peers’ compensation information is important to determine whether you are being paid fairly. Do not shy away from talking to colleagues or HR about the terms and conditions of your employment.
Many states, including DC, prohibit employers from placing limits on employees’ ability to discuss their wages with other employees, and from retaliating against employees who exercise their rights to freely discuss their wages. There are also a variety of external resources to find out information about wages. Many publicly available resources such as Glassdoor and industry-specific groups publish job and market information based on job titles, positions, industries and geographic locations.
Tip #2: Keep Clear Records!
It is easy to get overwhelmed or exhausted at work and not have a clear memory of important facts. Therefore, it is important to keep contemporaneous records – hold on to any offer letters, employment agreements, employee handbooks, pay records, tax documents, and keep a detailed record of any unfair treatment from the company or coworkers. If the terms and conditions of your employment change without proper justification (for example, your projects were distributed to other coworkers who are equally or less qualified), you should promptly communicate with your employer in writing.
Companies usually conduct performance reviews to evaluate employees’ performance and to make vital decisions about pay and promotion. You should always try to have a written performance review and know how to handle feedback and disagreements about your performance. If you disagree with the comments that you received, you should ask to insert a copy of your notes documenting your disagreement, which then becomes a part of your performance review and your personnel file.
There isn’t one set format for how to keep these records, but the records should clearly identify when and where each incident occurred, the parties involved, the details of the incident, and how it was resolved. Whenever you’ve had an important conversation with your manager or HR, always follow up with an email memorializing what was discussed in the conversation.
While it’s important to keep records, you must be cautious about recording conversations without others’ consent and downloading, altering, or deleting employer’s information without authorization. Such actions are likely to be a violation of company policy and are against the law in many states.
Tip #3: Engage an Employment Lawyer ASAP!
Last but not least, you should seek legal advice from an employment attorney as early as possible. The attorney can help you assess whether an employer’s conduct constitutes a violation of employment laws and whether and when you can bring legal action. The attorney can also provide you with different options, whether it is to use the company’s internal complaint mechanism, engage in separation negotiations, file a charge with a federal or state agency, or bring a lawsuit in court. It’s crucial to engage an employment lawyer at an early stage so that you don’t miss any opportunity to resolve an employment dispute in the most timely and effective way.
Many employees may feel it’s a David vs. Goliath situation when they run into problems with their employer. It isn’t. If you take the steps outlined above and contact an employment attorney, the playing field will be leveled, and your employer is much more likely to treat you fairly, equitably, and in compliance with the law.
Qiaojing Ella Zheng (郑巧晶 律师) is a Lawyer in the SF office of Sanford Heisler Sharp, LLP., who is fluent in Mandarin Chinese and has extensive experience representing employees in individual and class action cases.