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What Type of Notebook is Right for You?
Forensic Notes offers three (3) different types of Notebooks to meet your specific needs.
- Forensic Notebook *
- Forensic Notebook (w/ edits) *
- General Notebook
* Professional account is required for Forensic Notebooks. [more info]
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Here are the 16 questions we get asked the most.
And our answers…
Q.1 Is Forensic Notes employing best practices in securing their application and the data that exists within it?
We understand this concern! In fact, there is a so much misinformation about the ‘cloud’ in the media, and TV and movies – we don’t blame you for being uncertain.
The reality is, however, that modern cloud storage solutions are often more secure and more reliable than what can be provided by your in-house IT department.
Let us convince you!
First, let us look at some facts:
- The ‘cloud’ is not some mysterious place where your information is stored in some unknown location in the world. When you use a proven cloud solution, your data is stored in highly secured datacenters on the most advanced servers in the world at known physical locations.
- Forensic Notes uses Microsoft Azure, a world leader in cloud solutions.
- Microsoft is investing a billion ($1,000,000,000) dollars each year to safeguard its Azure infrastructure by continuing to invest in cyber security research and development.
- Microsoft physically secures each datacenter to the highest standards (see video)
- Highly paid experts manage Microsoft Azure while having direct communication with the engineers and architects who developed the software running your critical applications.
- Microsoft Azure has obtained the most comprehensive compliance coverage of any cloud provider. Certifications include ISO, FedRAMP, HIPPA, etc. (see all certifications)
Can your IT department:
- Employ the top experts in the field, including experts in cyber security?
- Constantly upgrade and enhance the physical hardware of your network?
- Have direct communication with Microsoft to troubleshoot and quickly respond to potential security issues?
- Invest heavily in cyber security research and development?
- Use state of the art intrusion detection systems?
- Work with other Fortune 500 and Government agencies around the world?
- Listen to your needs as an end-user?
Chances are, your IT department just can’t do all of the above. Forensic Notes hosted on Microsoft Azure is your answer!
Q.2 Why did Forensic Notes choose Microsoft Azure as their cloud solution?
We worked hard to find the best solution for a secure cloud solution, and BizTech Magazine appears to agree with our choice! Read their article Why Enterprises That Value Security Trust Microsoft Azure
As a client of Forensic Notes, your organization can benefit from Azures world-class cyber security expertise and leverage the benefits of Microsoft’s annual Billion-dollar investment in technology and cyber security.
With this kind of support and proactive cyber security protection from Microsoft, you can have peace of mind that you are using the highest industry standards for cyber security.
Q.3 My organization requires that all data is stored in the United Kingdom (Canada / United States), what options do you have?
Forensic Notes currently hosts data in Azure datacenters located in the USA, but Professional clients who upgrade to Professional+ can choose to host within the United States of America, Canada or the United Kingdom.
You’ll have complete control over where your data resides, and we can work with your IT department or Chief Security Officer (CSO) to determine the best solution for your organization’s security needs.
For more information, see the Professional+ section.
Q.4 I think Forensic Notes would be more secure if it is hosted internally (in-house / on-site) within our network. Do you offer a Self-Hosted or Enterprise option for your application?
In some circumstances, organizations will choose this route depending on their needs and existing investment in their own security solution.
We can offer a variety of Enterprise options to meet your needs. Click here to view Enterprise solutions available. Please contact us if you have any questions.
Q.5 I need more detail about what makes the ‘cloud’ a more secure option than in-house?
Once again, this does depend on your organizations setup and current investment in security hardware and knowledge.
Forensic Notes utilizes several key Microsoft Azure Services that offer additional security not found in most IT environments, including:
- Azure Key Vault
Hardware Security Module (HSM) which protects the private keys used to decrypt your sensitive data.
- Multi-Factor Authentication (MFA)
All logins MUST utilize MFA to ensure compromised passwords do not result in compromised data.
- Data Encryption in transit and at rest
Data is encrypted using a unique encryption key for each note which can only be decrypted by utilizing the Azure Key Vault which logs every decryption. All data stored within SQL Server is also encrypted at rest using Transparent Data Encryption (TDE).
Click here to view detailed information on our security features.
Q.6 I do not trust the application if anyone can access the login page. What other options exist?
Professional clients can choose to upgrade to Professional+ which restricts access by IP address and allows you to choose the location of the server. For more information, see the Professional+ section.
Tell me more about Professional+
Professional+ is an upgrade offered to Professional clients (10+ users) that require enhanced security features, ability to select the data storage location and desire premium support.
- Only Professional+ clients are hosted on the server
- Application access restricted by IP address
- Ability to choose the location of your server and stored data (Canada, United States, United Kingdom)
- Each Account is setup with a unique Encryption Key (Key Encryption Key – KEK) stored within Azure Key Vault. This allows you full access to all logs generated.
- Premium Support (24/7/365)
- Unique login page with non-descriptive URL and login page details
Professional+ is designed for Law Enforcement, Government Agencies and Professional Digital Forensic Labs that require enhanced security. As a result, application access is granted to authorized IP’s only. This means that you will not be able to access the application from public internet connections unless you are going through an internal network via VPN.
By default, all accounts are setup within the United States. If you would like to upgrade to Professional+, please be aware that we will not be able to transfer your already existing account to a different region. A new account will need to be setup.
If you are unsure if Forensic Notes is right for your organization, please use the regular signup process and test with non-production data. Once you are confident that Forensic Notes is right for you, we will setup your account in the country of your choice once payment has been received.
For Professional+ pricing, please refer to our Pricing page.
Q.7 I’m worried that my login credentials will be compromised. What are you doing to secure my password?
You are not alone with this concern. Sites have been compromised in the past which has resulted in billions of passwords being stolen.
This is why Forensic Notes does NOT store any passwords.
All account creation, logins and Multi-Factor Authentication is handled by Azure Active Directory B2C service which can handle billions of authentications daily. As a result, we are only able to initiate a password reset and have no ability to view or retrieve your password.
Azure B2C is trusted by organizations and government agencies around the globe, including the State of Indiana which utilizes Azure and B2C to manage numerous applications for its 6 million citizens.
As a result of using Azure B2C, you will notice that upon signup or login, your browser address bar will redirect to
This is normal and upon successful login, you will be redirected to the Forensic Notes application.
Q.8 I work for a government agency so “the cloud” is not an option. What options do I have?
One of the main reasons Forensic Notes was created was to provide a solution to Law Enforcement agencies to move away from paper notebooks towards electronic documentation.
The State of Indiana is now utilizing Azure to host multiple applications to service approximately 6 million citizens within the state.
The State of Indiana is not alone in trusting Azure. Other governments, healthcare, insurance and technology agencies like Somerset County Council (UK), Medisys (Canada), Geico (USA) and Citrix (Worldwide) also trust Azure with their sensitive data.
View 880+ case studies detailing how organizations in Banking, Education, Government and Healthcare are using Microsoft Azure.
The reality is that government agencies are trusting Azure Cloud solutions to host some of their most sensitive information as Azure now offers a Government only cloud hosting which is currently available in both the United States and Canada.
In fact, Azure Government is Level 5 DoD approved.
If you are a Government agency and require an Enterprise solution that uses Azure Government, contact us to find out what options exist.
Q.9 I see that you allow Social Logins, doesn’t that make your application less secure?
As a user, access to your application may be considered less secure if you decide to use Social Login. But the reason why is not so obvious.
Multi-Factor Authentication (MFA) greatly enhances the security of any account but like anything security related, you must take the proper precautions to secure not only your credentials, but more importantly your MFA device.
Many people will leave their Gmail, Facebook or LinkedIn accounts logged in on their computer or phone. If a person obtains your cellphone, then they will also have access to your Multi-Factor Authentication (MFA) device. This would allow them to click on the login, select your appropriate social account and then utilize your phone to provide access via MFA.
Therefore, the security of your account is dependent on proper security of your MFA device (usually your cellphone).
Why do you allow Social Logins?
Many users want the convenience that Social Logins provide. By using a Social Login, you do not need to re-enter a password each time you login. This is why many organization offer Single Sign-On (SSO) services.
Some experts believe that SSO can enhance account security because when users are forced to provide a unique password for every account they manage, human nature says the result will be less-than satisfactory.
A Social Login does not inherently make your account less secure as the main security issue is the potential loss of an un-secured cellphone that is utilized as your MFA device.
If you are concerned about the use of social login, you can create a local account.
In addition, we provided a list below on how the security of ANY account can be further secured if you adhere and follow all of the following recommendations:
- Create a unique email address that will be used to create your account. Ensure that the password is unique and complex.
- Do Not write down your password except within a secured password manager application.
- Do Not use this email or password for any other services.
- Do Not auto-save the login credentials for this account on any devices including your cellphone.
- Do Not access your sensitive accounts from public or unknown Wifi access points.
- Encrypt your MFA device (cellphone) and use a strong password to lock your phone at all times when not in use.
- Ensure your MFA device is set to NOT allow answering of calls or viewing of text messages without being unlocked.
- Do Not use Social Login. Social Logins bypass the need to enter a password each time on trusted devices.
Q.10 What happens if Forensic Notes is taken offline due to a programming bug, DDoS or local internet blackout?
This is the reality of any application, be it online or offline. From a network perspective, Microsoft Azure protects client websites with a “distributed denial-of-service (DDoS) defense system that is part of the Azure continuous monitoring and penetration-testing process. The Azure DDoS defense system is designed not only to withstand attacks from the outside, but also from other Azure tenants”.
To handles application specific attacks, Forensics Notes utilizes various programming detection techniques and dynamic IP blocking.
Professional+ and Enterprise clients are further protected by using unique non-descriptive URLs and IP blocking of any unknown IP addresses.
If you ever encounter a problem when using Forensic Notes, please contact [email protected]
Q.11 What happens if a ‘hacker’ logs into the database and accesses all the information?
As discussed within the Security & Encryption page, every individual note and associated attachment is encrypted using a unique 256-bit symmetric key (Content Encryption Key – CEK).
This CEK is then encrypted using the public key of a 2048-bit asymmetric encryption key (Key Encryption Key – KEK).
The Private key (KEK) used to decrypt all data is stored and only accessible within the HSM Azure Key Vault.
As a result, even if a ‘hacker’ gained access to an individual service, they would not be able to decrypt the information as the system works in tandem to create the overall security of the application.
Each service is locked down to only operate with other specified services.
Q.12 What about if the ‘hacker’ is able to download the database and brute-forces each individual record?
According to Wikipedia…
“breaking a symmetric 256-bit key by brute force requires 2128 times more computational power than a 128-bit key. Fifty supercomputers that could check a billion (1018) AES keys per second (if such a device could ever be made) would, in theory, require about 3×1051 years to exhaust the 256-bit key space.”
Each note you create and store is individually secured with unique 256-bit key!
Moving from questions about technology to business practices…
Q.13 What happens if my accountant/accounting department, etc. forgets to pay the monthly (or yearly) subscription?
We are committed to maintaining and securing your important data. We send out reminders about payment for overdue accounts.
For significantly overdue accounts we may disable your ability to add new notes, but we would never hold notes or files hostage for payment nor delete your data without providing you with a reasonable opportunity to bring your account up-to-date.
Q. 14 What happens if your company folds and shuts down the service?
Any company could theoretically go out of business. We are committed to our customers and would never leave our valued clients without options or without providing significant notice of a pending shutdown.
We would do everything in our power to keep the site accessible to download existing files and records.
For Enterprise and Professional+ accounts, we would provide all source-code and instructions for properly deploying the application within your own Azure hosting environment.
For those organizations that require legal agreements, we would be happy to setup a software escrow for an additional fee.
Click here to find out more about Software Escrows.
Q.15 Is there 24/7/365 Support available?
Yes, we recognize that Forensic Notes will be a critical software solution within your organization. As a result, Premium Support is standard when you upgrade to Professional+.
All Professional and Enterprise accounts have standard Priority Email Support during the hours of 8am to 6pm PST.
Q.16 Who runs Forensic Notes?
Forensic Notes was founded by a group of guys living in Canada.
And who doesn’t trust Canadians?
These guys have a lot of experience involving technology and legal matters, both criminal and civil.
And no, it’s not because they’ve been arrested or sued a lot.
If you want to know more, please check out our Bio’s.
Menu (tap to expand)
Multi-Factor Authentication (MFA) further secures your account from un-authorized access should someone obtain your username and password.
We highly recommend that you use your cellphone number and ensure you always have access to this device when logging into the application.
With MFA, you have two (2) options:
- Send Code (via text message)
- Call Me
Send Code (via text message)
MFA via Text Message is the most common way that users authenticate, but this does require you to manually enter the code provided within the login form after viewing it on your cellphone.
We recommend that you use the “Call Me” feature as it is often the faster method.
MFA via “Call Me” simply requires that you acknowledge the login by pressing the “#” (pound key) upon answering a call from Microsoft Azure on your authentication device (cellphone).
Upon granting access, the application will log into Forensic Notes.
Can You PROVE When You Wrote a Note or Saved a Document?
The ability to prove when you wrote a note or saved a document is essential in both civil and criminal court.
Being able prove that a document existed or was written on a particular date can often determine the outcome of the trial.
Due to how prevalent harassment is within many organizations, civil courts have begun to award large settlements to victims who are able to prove that they were a victim of harassment within an organization.
As a result, Human Resource (HR) Departments need to ensure they are properly documenting all employee interactions as a lack of notes is considered a lack of evidence.
The inability to properly recall events potentially months or years in the past can be detrimental to the outcome of the case.
However, the reality is that it is nearly impossible to PROVE the date of a document unless it is Digitally Signed and Timestamped.
The only way that you can potentially prove the date of an electronic file that is not Digitally Signed and Timestamped is to hire an experienced Digital Forensic Examiner to examine the computer system that created the document.
Digital Forensic Examination
An independent and experienced Digital Forensic Examiner will cost between $150 – $350 / hour with most forensic examinations taking a minimum of 40hrs.
(avg. $240/hr x 40 = $10,000 USD)
In many cases, the Digital Forensic Examiner will still be unable to state with 100% confidence that the file existed and that no manipulation of the date and time had occurred within the system.
Document Dates Are Important – Google Proof
A recent Google search for the following terms was conducted.
~ Date: 2016-08-27
How do I prove when I wrote a word document
How do I prove when someone wrote a word document
How do I prove the date of a file
As you can see, the above questions are commonly Googled and as a result they have between 114 to 172 Million results each!
Date Altering Programs
Watch the following video to see how easy it is to change the Date Created, Date Modified and Date Accessed values within Microsoft Windows.
Fake a Date – Change Microsoft Windows Date & Time
Watch the following video to see how easy it is to change the date & time within Microsoft Windows.
Almost all programs such as Microsoft Word, Excel and Adobe PDF rely on the date & time set within Windows to timestamp files with an internal date & time (metadata).
This metadata is often used within court proceedings to prove the existence of a document at a particular date & time as it’s believed to be accurate.
In most circumstances this metadata is accurate, but as you will see, it can be easily manipulated for nefarious reasons.
Fake A Date Documents
The following Microsoft Word and Adobe PDF documents are the files created within the “Fake a Date” video above.
Both were created on 2016-08-01 but the metadata within the files show that they were created on 2010-06-10.
Do you Trust the Metadata within documents?
Can You PROVE When You Wrote a Note or Saved a Document?
The Solution is Forensic Notes!
Forensic Notes is your solution to PROVING the date of every important document in your future.
Every Forensic Notebook, Note and Attachment is Digitally Signed, Independently Timestamped and easily verifiable.
Interested in seeing how Forensic Notebooks, Notes and Attachments are validated?
Tour & Features
Interested in seeing all the features of Forensic Notes?
Validating Forensic Notes
The following page will allow you to test the Validation Process so that you can see how easy it is to PROVE when you Wrote a Note or Saved a Document.
Nursing, like every other field, is not immune from bullying and other forms of workplace harassment.
However, for nurses who already face their own unique daily challenges in their workplace, bullying can be tipping point to deciding to leave work they once loved.
However, you can take the power back and stop bullies from ruining your career.
Influential Leader in the Fight Against Nurse Bullying
Dr. Renee Thompson, DNP, RN, CMSRN, CEO and President of RTConnections, LLC.
Dr. Renee Thompson is an influential leader in the fight against nurse bullying and harassment.
With over 25 years of experience as a nurse, nurse educator and nurse executive, Renee fully understands the issues many face in the healthcare industry.
Renee is one of the most sought out speakers in the industry for nurse on nurse bullying, repeatedly published, interviewed and awarded for her dedication to helping inspire current and future nurses.
Renee’s seminars & presentations focus on:
- Improving clinical and professional competence
- Eliminating nurse-to-nurse bullying
- Effective communication and leadership
- Building a positive and healthy workplace
- Nurturing a culture of respect
In the article below, Dr. Renee Thompson will explain the steps you need to take to create a better nursing environment, free from nurse bullying.
Dr. Renee Thompson discusses
“How to Catch a Professional Bully”- Tips & Tricks
TAKING BACK THE POWER FROM NURSE BULLIES
– article by Dr. Renee Thompson –
Nurse bullying has been around since we donned our white uniforms.
I’m quite sure that nurses back in the early 1800s experienced the same behaviors we see today (intimidation, open criticism, exclusion, etc.).
Every nurse has heard the phrase, “nurses eat their young” and were warned about the mean, crusty nurses when they were in nursing school. The problem is, now we eat our young, our old, and everything in between!
“93% of healthcare employees report witnessing or experiencing bullying behavior.”
With the increased attention on professional practice, inter-professional relationships, innovation and advanced education, shouldn’t nurse bullying be decreasing?
As I travel the globe helping individuals and organizations eliminate workplace bullying, this question often comes up.
Is bullying getting better or worse?
While I wish I could say that we are seeing a decrease in reports of workplace bullying, many studies show that bullying is on the rise in all industries but in particular, it’s getting worse in healthcare. 93% of healthcare employees report witnessing or experiencing bullying behavior.
Bullying in Nursing is Occurring
I’m seeing the same thing in my world.
Almost every day a nurse reaches out to me asking for help to deal with a bullying situation at work.
It breaks my heart to hear their stories of sabotage, backstabbing, exclusion or being dumped on and made to feel unworthy.
How can nurses be so caring and compassionate to their patients but so cruel to each other?
“DOCUMENT, DOCUMENT, DOCUMENT”
It’s so bad that many nurses are choosing to leave the professional all together.
The reality is, nurse bullying is alive and well.
One of the reasons is that many targets of bullying think they are powerless to do anything about it, especially if tortured by a gang of bullies or if the bully is their boss.
However, that’s what the bullies WANT you to think.
The bullies are wrong! If you’re being bullied, you are NOT powerless. There is something you CAN do.
DOCUMENT, DOCUMENT, DOCUMENT!
Every time a nurse shares his/her bullying story with me, I ask this question:
“Have you documented your experiences?”
In most cases, the answer is no.
Action Steps to Take Against a Bullying Nurse
Document the bullying behavior immediately
- If you are being bullied, START DOCUMENTING your experiences.Keep a small notebook with you and write down dates, times, witnesses, verbatim comments, and any behaviors you believe constitute bullying behavior.
Transfer your notes into a more formal documentation system
- This can just be an electronic file or something more substantial, like Forensic Notes which can make sure your documentation is “court ready” just in case you decide to take legal action.
Link bullying behavior to patient safety
- Anytime you can link the bully’s behavior to a patient safety issue, you have a greater chance of your leaders taking action. Patient safety is on the radar of administration and is more likely to be addressed. One nurse shared with me that the bully took away her trach patient’s call bell and then wrote her up for “not having the call bell close to her patient.” What the bully didn’t realize was that patient witnessed her (bully) moving his call bell and reported it to the manager.
This nurse was then terminated.
Example of Workplace Bullying In Nursing & Fighting Back Against the Nurse Bully!
I received an update from a nurse who reached out to me last year regarding a bullying situation resulting in HER termination from employment.
This nurse had been documenting her experiences all along – dates, times, verbatim comments, facts, etc.
She decided to take legal action against her employer and the bullies and sought the help from an attorney.
Although it was a long road, she just won her case!
“She decided to take legal action against her employer and the bullies and sought the help from an attorney. Although it was a long road, she just won her case!”
In her update, she thanked me for supporting her and other nurses who are targets of bullying and shared the following advice:
“Document, document, document everything you see, hear, and suspect to be occurring.
This proved to be vital to my case, as the themes I documented in my notes (while still employed) and had given to my attorney well before the discovery (sharing of records) process began approximately two years later.
As discovery began, it became more & more evident how much of what I suspected to be occurring was occurring during the 8-10 months prior to termination.”
I’m so happy for her that her experience was validated and that she is being compensated for her pain and suffering.
Documenting your experiences is one of the most powerful actions you can take against bullying.
“Documenting your experiences is one of the most powerful actions you can take against bullying.”
Let’s each do our part to finally stop the cycle of nurse bullying so that we can get back to the essence of nursing – delivering caring, compassionate, and competent CARE.
Be kind. Take care. Stay connected.
As an international speaker and consultant, Dr. Renee Thompson tackles the clinical and professional challenges facing healthcare leaders today.
With 26 years as a clinical nurse, nurse educator, and nurse executive, Dr. Thompson is an expert on workplace bullying, professional development, and clinical competence.
For more information about Renee and her work to stop the cycle of bullying, go to www.ReneeThompsonSpeaks.com
Nurse Bullying Examples
Bullying in nursing affects both new and veteran nurses.
Unfortunately, nurse to nurse bullying has been around since the beginning of the nursing profession leading to the common belief that “Nurses eat their young”.
But a common question is:
“Why do nurses bully?”
As Dr. Thompson points out in one of her nurse bullying articles, there will always be bullies in nursing as “humans have been bullying each other for centuries”. But this doesn’t mean that you have to accept and tolerate bullying within your nursing environment.
So why do nurses bully other nurses?
Dr. Thompson has found that nurse bullies have 5 common traits.
5 Common Traits of a Nurse Bully
- Bullies need targets to survive
- Bullies tend to be really good clinicians
- Bullies see the workplace as a battlefield
- Bullies enjoy keeping their targets guessing about when the net attack will occur
- Bullies don’t play by the rules
Bullying Nurses: Examples can include both Overt and Covert Bullying
Overt Nurse Bullying:
- Verbal criticism or name-calling
- Ethnic jokes or slurs
- Finding fault
- Threatening Physical violence
Covert Nurse Bullying:
- Withholds information
- Excludes others
- Unfair assignments
- Downplays accomplishments
© TwiceSafe Software Solutions Inc. | All Rights Reserved
TwiceSafe Software Solutions Inc. DOES NOT provide any legal advice and users of this web site should consult with a lawyer to determine if the information provided on this site is valid for their given circumstances. Use of this web site is governed by our Terms & Conditions; refer to this document for more information.
© TwiceSafe Software Solutions Inc. | All Rights Reserved
TwiceSafe Software Solutions Inc. DOES NOT provide any legal advice and users of this web site should consult with a lawyer to determine if the information provided on this site is valid for their given circumstances. Use of this web site is governed by our Terms & Conditions; refer to this document for more information.
Article Quick Links
- Legal Considerations are a Priority
- Workplace Documentation is Critical
- Employee Privacy and Confidentiality Should be Maintained
- Employee Rights During Investigation
- Employer Policies Need to be Followed Consistently
- Internal HR Policies
- Investigators Should be Properly Prepared
Conducting a Workplace / Employee Investigation
As an HR Manager, you have a lot of responsibilities, including the unenviable task of conducting workplace investigations, commonly referred to as an HR investigation.
Conducting HR investigations may be undertaken when:
- An employee lodges a complaint.
- Your organization is facing a lawsuit from the EEOC, ICE, an Employment Lawyer, or other government agencies.
- You suspect wrongdoing by an employee and require proof prior to termination for just cause.
- Whistleblowing accusation.
These kinds of situations call for a thorough workplace investigation to take place and must be handled carefully from the beginning to avoid legal consequences later.
Conducting a proper workplace investigation will ensure you can fully understand and manage the situation. Failing to do so could leave your organization vulnerable to large legal settlements from lawsuits.
Some investigations may only be fact-finding missions, or undertaken to assess whether an employee complaint should result in disciplinary action.
Internal investigations may also be required in situations where the company is already facing legal action and needs to have all the facts to properly defend themselves in court.
No matter the situation, workplace investigations can be fraught with tension.
You can protect yourself and your organization!
To do so, you must consider:
- Legal Issues
Will your organization be held liable if you fail to investigate or investigate improperly?
- Employee Rights
Are you respecting the rights of employees and fostering an appropriate work environment?
Failure to properly investigation a situation places you and your company in a poor light, and can quickly make the situation worse.
As employment lawyer & mediator Stuart Rudner writes within his article, Conduct a Workplace Investigation, “How a workplace incident is handled can have serious repercussions for employers, including liability for extraordinary damages.”
Let us look at some items that must be considered before any investigation begins.
When conducting a workplace investigation, you must consider that the steps you and the organization take are responsible and within the bounds of the law.
Anyone involved in the investigation needs to be trained in how to act so that they do not risk putting the organization in legal jeopardy.
As Stuart states within his article, Conducting an Investigation, “If the investigation is to be carried out by someone within the organization, it is critical that she be trained in the conduct of an investigation, which would include conducting interviews.”
The investigation itself (or the actions taken resulting from the investigation) could become grounds for a discrimination, harassment, or retaliation claim if it is not handled with proper diligence and care.
Of course, even with a proper investigation your organization could still face a lawsuit.
To help mitigate the risk, however, you can show you did everything you could to comply with the law by:
- Investigating properly
- In a timely manner
- With complete documentation
Many employees fall into one or more legally protected classes, so it is not difficult to see how a claim of discrimination or retaliation could arise—even if it is unfounded.
This is why proper documentation is paramount.
It is important not to just properly document the case you suspect could result in problems, but to be consistent in having proper documentation for all your employees.
You can then show in court that you are fair in your treatment of all employees, and that you are consistent in how:
- Employees are treated
- Investigations are conducted
Keeping detailed and contemporaneous written records is the cornerstone of good documentation.
Workplace investigations rely on good documentation and an investigation by an outside agency such as the EEOC will quickly uncover if your documentation is inadequate.
Lack of Workplace Documentation
As employment lawyer Stuart Rudner points out in his Forensic Notes feature article, Termination for Just Cause, “lack of documentation will almost inevitably weaken your case if your actions are challenged”.
If your workplace investigation results in the decision to terminate / fire an employee, will you be able to terminate for just cause and avoid paying severance to the employee?
Without proper prior documentation, this will be highly unlikely.
Prepare for Potential Lawsuits Before They Happen
Any workplace investigation should be conducted in a way that prepares for the possibility of a lawsuit happening in the future.
If the investigation is conducted properly, with proper documentation, credibility will be on your side.
Documentation will allow your company to prove that:
- They conducted the investigation properly
- Proper procedures were followed
- Your organization investigated or complied with an external investigation as required
Utilizing a Forensic Electronic Document Management System (FEDMS) to organize notes and files can make the process of documentation and document disclosure easier.
Forensic Notes is designed to act like a legal Notebook in electronic form for keeping all your employee documents in one place. It includes advanced security and authentication features, while allowing simplicity in tracking and disclosing notes in a court-ready package if the need arises.
What this means is that you can quickly present employee documents as one easy to read court-verifiable document or electronic package.
However, the benefits of using a FEDMS is much more than simply having a quick and simplified way of presenting documentation.
Perhaps the most important feature, is that it improves the legal credibility of your documentation.
This is because an FEDMS, like Forensic Notes, uses advanced electronic documentation technology to allow you to show not only that a document you created was never altered, but also allows you to PROVE the date and time it was written.
It can also help show that pertinent documents were not destroyed to “hide” a company’s misdeeds.
If changes are required to a document, a FEDMS can log and tracks all changes, and make available for investigative purposes the original versions of the documents.
When it comes to court, having documentation is vital.
Remember that the organization should have policies in place to preserve documentation when an investigation begins.
This is legally required in most areas.
Whether documentation was created for an internal investigation or regular HR purposes, preservation of these documents is important, as allegations of misconduct may arise months or years after an alleged incident occurred.
Maintaining proper documentation can make or break your case!
Intended Audience May Change
It is also important to create your documentation with an eye to the future, as the intended audience may change.
It may be someone from an external government agency that must read and interpret what is written.
If the documentation is not clear, concise and fact-based, the person reading your documentation may interpret the information differently than what was intended.
An outside organization such as the EEOC may use the interpreted information to determine if the company acted properly which could result in a lawsuit.
Although your organization ‘may’ be able to defend the interpretation, isn’t it better to avoid the hassle and expense by documenting properly to begin with?
While conducting a workplace investigation, you must balance the need to be thorough with the need to keep the investigation as nonintrusive and respectful of your employees’ privacy as is appropriate for the situation.
Employees have an expectation of privacy, and they will likely assume that any investigation will be limited to only those who need to know.
Request Confidentiality During Discussions
Asking everyone involved to maintain confidentiality also helps to ensure that people can speak freely during your interviews.
Any time confidential information is leaked, the employees will lose trust in the employer and you as the person representing the organization
If trust is lost, other employees may not come forward with complaints in the future or provide key information and evidence that could help protect the organization from lawsuits.
Maintaining confidentiality also helps to reduce the chance that key evidence is destroyed by other employees or inadvertently influence another person’s memories.
Workplace retaliation can also occur, so keeping the investigation private can reduce the likelihood of threats or retaliation during the process.
It will also help protect witnesses from being intimidated into changing what they will say by co-workers or even managers.
Employees Have a Right to Speak About Workplace Conditions
That said, employers have a very fine line to walk here in regards to confidentiality.
The National Labor Relations Act (NLRB) protects an employee’s right to speak about workplace conditions.
As a result, the employer should assess whether the need for confidentiality outweighs employee rights.
In many cases, the need for confidentiality to protect the integrity of the investigation and to protect those who may be intimidated, will be enough to temporarily disallow communications about the issue within the organization.
Know the Risks!
Employers should ask themselves whether there:
- are witnesses who may need to be protected?
- is a risk of evidence being destroyed?
- is a risk of information being fabricated?
- is a risk of anyone trying to create a cover up?
If these above risks are substantial, confidentiality should be maintained.
Document Requests to Keep a Workplace Investigation Private
Where confidentiality is required, advise employees that it is needed for the duration of the investigation and be sure to document these conversations with every employee. Documentation should include their response to the request to keep information confidential.
“Congress enacted the National Labor Relations Act (“NLRA”) in 1935 to protect the rights of employees and employers, to encourage collective bargaining, and to curtail certain private sector labor and management practices, which can harm the general welfare of workers, businesses and the U.S. economy.”
~ National Labor Relations Act
In 2016, the NLRB awarded over $52 Million dollars in back pay, fees, dues and fines due to illegally fired employees for protected activity.
Source: NLRB Monetary Remedies
Even after legal considerations are met, employers must also follow their own internal policies.
Ideally, employers should create a policy outlining how workplace investigations will be conducted. This helps:
- Employees to know what to expect.
- Employers to be consistent in their actions.
It also helps HR staff begin an investigation in a timely manner since the HR investigation process is already outlined with the key steps to follow.
Any policies related to underlying issues that brought about an investigation should also be followed.
If the issue relates to employee conduct, the employer should follow their own disciplinary policies.
Employers should be consistent in how employees are treated as un-fair treatment can result in future legal issues.
HR teams may also have internal HR policies that are not necessarily made public to the rest of the organization, other than management.
There should be an HR policy about how to advise an employee that they are suspended.
This type of policy is not something that needs to be publicized, but the HR team needs to be consistent in how its accomplished.
Failing to be consistent with how employees are notified of a suspension could result in an employee claiming that they were unfairly made an example of compared to other employees.
One important question for any workplace investigation is:
Who should lead the workplace investigation?
Obviously, it is important that the person leading the investigation be well-versed in employment law and is trained to handle sensitive and emotional situations.
This person should also be impartial.
The person leading the investigation must be impartial to the outcome of the investigation to help ensure that the investigation is fair to all employees affected.
This point cannot be emphasized enough.
Failing to be impartial could result in future legal litigation.
Workplace Investigation Training Courses
There are a lot of different training courses that can be beneficial for the HR investigator, including:
- Legal Training
- Recognize and Combat Bias Training
- Empathy Training
Be forewarned, legal training courses can be expensive and take up most of your organizations training budget. Legal information can be complex and cover numerous legal aspects and situations.
External Workplace Investigator
If your organization lacks a person with the proper training to conduct an impartial workplace investigation, then it is highly recommended to hire an external workplace investigator or agency.
Outsourcing workplace investigations often happens if the company does not have enough resources in-house to allow one person to devote all their time to an investigation or if the investigation is complex and beyond the capabilities of the person currently designated to be the investigator.
The decision to outsource your investigations may also be wise if there is an insufficient budget to get the training needed for a person to fill this role internally.
Although contracting to an external person or company could lead to higher initial costs if an investigation is required, the quality of the workplace investigation will likely be superior with less chance of issues in future legal proceedings.
This could save you money overall.
If you do choose someone external, be sure to vet him or her thoroughly to ensure they will be a good fit for your work culture and have the necessary experience to deal with your situation.
You need to be sure they are well-qualified, have sound judgment, and can remain impartial.
The external investigator should also know enough about your business or industry to be able to understand any jargon or Standard Operating Procedure (SOP) discussions that may arise.
Once an investigation has started, it will be difficult to hire a different lead investigator without duplicating work and greatly increasing the costs of the investigation.
As a result, it is best to have external investigative resources in place prior to needing them for an investigation.
If you are planning to conduct your own workplace, HR or employee investigations, the preparation to conduct an effective investigation starts long before you have an issue to investigate.
The following steps should be taken to help ensure a positive and an effective workplace investigation:
- Create a Workplace Investigation Policy
A clear policy on how to conduct workplace investigations should be created.
Train everyone involved to ensure they understand their legal obligations including the need to avoid bias within the investigation.
- Create Employee Policies
Have clear employee policies in place to help guide employee behavior. Employees should have a clear understanding of what is expected of them. These polices also serve as guidelines to ensure you are treating employees fairly and consistently.
- Documentation System
Have a system for creating thorough, legal documentation. Consider using a forensic electronic document management system (FEDMS) to ensure you have documentation that will hold up to the scrutiny of court should your investigation end up in criminal or civil court.
We created the first Forensic Electronic Document Management System.
See how you benefit from it today!
Examples of important employee policies include:
- Employee code of conduct
- Employee disciplinary procedures
- Employee communication guidelines
- Workplace security
- Drug/alcohol use
- Open door communication
- Workplace bullying or violence
- Employee privacy
Below is a list of workplace investigation templates you may want to download and modify to meet your organization’s specific needs when conducting workplace investigations.
Ontario Human Rights Commission
This template is designed for employers or external investigators who are investigating human rights concerns within the workplace.
Confidential HR Investigation Template
When the need for a workplace investigation arises, there are a lot of questions to ask not only yourself, but all other employees that are involved.
Below is a list of questions that you may have to ask during the various stages of your investigation.
Hint: [bookmark this page or share it to ensure you can find this list in the future]
Before you begin, assess whether there are any immediate steps you need to take to better protect your organization.
- Do any employees need to be suspended during the investigation process?
– If yes, do temporary replacements need to be put in place?
– Alternately, perhaps someone should be transferred to another department or shift rotation?
- Are there any safety concerns that need to be addressed right away?
- Does the IT department need to be involved to terminate (or grant) an employee’s access to any system?
- Does the IT department need to get copies of any reports or information to assist with the next steps you plan to take during the investigation?
- Do you need to consult with legal counsel?
Need an Employment Lawyer or Mediator?
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We suggest you contact Stuart Rudner at Rudner Law
Plan all steps of your investigation as thoroughly as possible prior to taking any steps to contact those that are involved.
There are many legal issues that can arise if you fail to properly plan an investigation and instead react abruptly to a situation.
If you have a policy in place (which you should), this is the time to start following the policy to ensure you as the HR representative are protected should your organization question your actions in the future.
CYA – Cover Your Assets
Not only do you want to document that entire investigation to protect the organization, but you also want to document all your actions showing that you are adhering to policy to protect yourself from allegations of wrongdoing.
This is called C.Y.A. (Cover Your Assets).
When planning your investigation, remember the 5 P’s.
Proper Planning Prevents Poor Performance!
Whether you have a policy to follow or not, you should consider the following workplace investigation questions.
Before You Start the Investigation
What is the problem at hand?
- What has prompted you to start the investigation?
- What are you solving?
– Are you trying to discover the facts in a dispute?
– Are you trying to see if a company policy was not followed?
– Are you following up on a complaint?
– Are you investigating a suspicion or a hunch?
– Are you trying to comply with an external entity, such as an EEOC, ICE or DOL?
- Has a lawsuit already been filed?
Who should investigate this?
- Who has been trained to properly conduct the investigation?
- Who is impartial in this situation?
Handling the investigation carefully is critical.
Mishandling your workplace investigation can make a bad situation worse and lead to legal issues for both yourself and the organization.
Start the Investigation
These questions can be used to guide the way:
- Who is involved?
- Who should be interviewed?
- Who are the witnesses?
- Who is being accused?
- Are there people outside the company who you need to talk to?- Remember to involve both witnesses and anyone who may have relevant information. Failing to speak with all potential witnesses could be seen as failing to complete a full investigation.Do not forget to attempt to speak with former employees if applicable.
- What risks do you face during the investigation itself?
– How will you mitigate these risks?
- What documentation will you need to gather and review?
– How will you get the documentation?
– Has the organization used a forensic electronic document management system to ensure the files have not been tampered with?If not, what steps will you need to take to ensure you have complete information?
- Examples of documentation you may need:
– All relevant HR policies.
– All relevant operating procedures.
– Employee personnel files.
– Copies of any previous related complaints.
– Files kept by managers.
– Access to employee communications, including emails, texts, phone logs, instant messages, and any other formal or informal form of workplace communication.
– Employee personnel files and/or other general company files.
– Access to any system that records relevant information, such as timecard systems (showing who was there on a given day), or log-in systems (showing who accessed specific programs).
– Expense reports/receipts.
– Security camera footage.
– GPS data for company vehicles.
NOTE: Many of the above documents may not be applicable to your situation.
- How will you maintain confidentiality?
– Assess whether strict confidentiality is required
— If yes, document conversations about confidentiality with everyone involved
– Know in advance what steps you will need to take to ensure confidentiality
– Plan how much information will be communicated and to whom in advance
– Work with others as needed to ensure that file security is maintained
- How will you handle any information that is leaked during the process?
– If there is already a lawsuit, you may be dealing with public inquiries in addition to the internal aspects.
- How will you clearly document every aspect of the investigation?
– You will need to document who is talked to and when.
– Document what is said.
– Document what discoveries are made.
— Ideally, this documentation should be in a format that is easy to use and hard to tamper with, such as a forensic electronic document management system like Forensic Notes.
- Do you have a clear plan for follow up?
– What actions will you take to prevent the situation from recurring.
– What support mechanisms can you put in place to support employees negatively affected.
– Remember, how you and the company follow-up is just as important as the investigation itself.
When scheduling interviews, consider the most logical order to ensure the least amount of disruption to both the organization and those involved.
Consider in advance what questions need to be asked of each person and have that list prepared prior to contacting them for the interview to give them a proper estimate of the time required to complete the interview.
You should also have a clear plan on how you want to contact each person to ensure the privacy of those involved.
Treat every employee with respect and appreciation.
In many cases, you will need their cooperation to gather the information you need.
The majority of workplace investigation will involve electronic data either stored on company computers or electronic devices such as cellphones, laptops and tablets.
As a result, you will likely require outside expertise from a Digital Forensic Examiner to ensure you are able to obtain hidden or deleted information within your corporate environment.
‘Electronic Discovery’ (or E-Discovery) allows you to analyze information only digital forensic experts can obtain.
If you require assistance or recommendations on E-Discovery firms, please do not hesitate to contact us at [email protected].
We have numerous connections in the digital forensic field and can recommend high quality organizations and individuals in your area that can assist with your workplace investigations.
Once the workplace investigation has completed, then it is time for HR and the organization to analyze the investigation to see if changes need to be made for future investigations.
You should also discuss what could have been handled more appropriately in the future.
- Do policies need updating?
- Is further training required for HR?
- How will the company repair employee morale and answer questions regarding the completed investigation?
- What steps does the organization need to take to follow up on issues that were discovered during the investigation?
Anything you discovered during the workplace investigation will now be a matter of record and needs to be handled appropriately.
Failing to correct issues discovered could result in legal action in the future if the same mistakes are made.
Workplace investigations WILL occur.
Good documentation and good policies will protect your employees and your organization.
Workplace investigations can be frustrating and tense, but having a plan in place can make them less stressful for not only yourself, but the rest of the organization.
Document your workplace investigations with Forensic Notes.
Sign up today for a free 14-Day No Restriction Trial. No payment information is required.
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Article Quick Links
What is Whistleblowing?
- Laws and Groups Related to Whistleblowing Protection
- Whistleblower Laws
- Groups Associated with Whistleblowing Enforcement
- Investigation Arising from the Initial Complaint
- Discrimination or Retaliation Claim by Employee or another Protected Individual
“an employee who brings wrongdoing by an employer or other employees to the attention of a government or law enforcement agency and who is commonly vested by statute with rights and remedies for retaliation”
In legal terms, whistleblowing refers to the act of exposing employer wrongdoing in some capacity: i.e. “blowing the whistle” on such activity. A whistleblower would then be the person (perhaps a current or former employee) who initiates exposing such activity.
“Wrongdoing” in this case could encompass a large number of things, such as:
- Securities violations or other types of financial fraud
- Major safety violations
- Any other illegal or unethical activity
Whistleblowing is a legally-protected activity in the United States, Canada, Australia and the United Kingdom.
Laws in each country vary with the strongest policies enacted within the United States which even rewards Whistleblowers with financial incentives if the prosecution results in over a Million dollars in penalties.
When someone chooses to become a whistleblower, they may bring their concerns to someone within the organization or bring them to the appropriate governmental office to initiate an investigation, if warranted.
Some whistleblowers choose to bring their suspicions to other concerned parties, such as the media, to allow that group to take the next steps. Whistleblower protection laws exist to encourage these people to report wrongdoing, because if whistleblowers feared retaliation, they may not be inclined to report their important information.
Since keeping this type of information hidden could perpetuate the associated problem, it is in everyone’s best interest to have incentives for people to come forward—or at least eliminate the disincentives, like retaliation, by making it illegal.
This is what most whistleblowing protections do—they make retaliation or discrimination against whistleblowers illegal. Some even go as far as to offer rewards to ‘incentivize’ whistleblowing when wrongdoing is discovered.
Despite such protections, initiating a whistleblower claim is often a difficult decision, even if the individual has documentation he or she feels may prove the case.
The resulting investigation could take months or even years, and then there is the possibility of court cases that result. The person who brings the initial complaint may end up being involved with the process for much of that time, regardless of how closely they were involved with the situation before they reported it.
Some people view whistleblowers as unethical, because they may be breaking confidentiality agreements in place with their employer (even if such agreements are informal).
Regardless of legal protections, whistleblowers often face a lot of pushback and negative outcomes. They may even have difficulties finding new employment.
This is not a decision taken lightly, but whistleblowing protection does what it can to help.
Did you know there are almost two dozen different laws related to whistleblower protection in the United States?
And these are just the ones that are enforced by OSHA. Several other laws have provisions that have anti-retaliation components as well.
According to the US Department of Labor (DOL):
Since passage of the OSH Act in 1970, Congress has expanded OSHA’s whistleblower authority to protect workers from retaliation under twenty-two federal laws.
Here are a few of the most prominent whistleblower laws:
Section 11c of the Occupational Safety and Health Act of 1970 relates to protecting employees who exercise their legal rights under OSHA. It states that it is illegal for an employer to act in a discriminatory way against an employee who has:
- Filed a complaint
- Participated in an inspection
- Talked to an inspector
- Sought access to exposure and injury records
- Reported an injury
- Raised safety or health complaints
Whistleblower Protection Act
The Whistleblower Protection Act of 1989 protects federal whistleblowers.
It is specifically aimed at protecting people who work for the government if they report any type of misconduct.
Government agencies cannot retaliate against such individuals. The types of complaints or concerns a governmental whistleblower might bring include things like:
- Illegal activity
- Waste of funds
- Abusing authority
- Public health/safety concerns.
The Office of Special Counsel investigates whistleblower claims related to governmental agencies.
SOX is primarily associated with tight financial oversight for corporations in the wake of multiple corporate financial scandals prior to its implementation. To reduce fraud committed by publicly-traded companies, it introduced several laws and regulations.
Increased the Number of Financial Disclosures
It increased the number of financial disclosures a publicly-traded company is required to make, as well as requiring more assurances that the figures are accurate.
Increased the Documentation Requirements
It increased the documentation requirements for affected organizations.
Introduced Auditing Requirements
It introduced auditing requirements, ensuring the following is properly logged and monitored:
- Database activity
- Network activity
- Internal controls
- Login activity
- Account activity
- User activity
- Information access
An audit trail showing access and activity to all sensitive information within the business must be maintained and made available if required.
Whistleblowing protection is just one aspect of a law designed to protect consumers and shareholders from corporate financial wrongdoing.
According to the Department of Labor factsheet about SOX:
Employees who work for publicly traded companies or companies that are required to file certain reports with the Securities and Exchange Commission (SEC) are protected from retaliation for reporting alleged mail, wire, bank, or securities fraud; violation(s) of SEC rules and regulations; or violation(s) of Federal law relating to fraud against shareholders.
These protections extend beyond the employee who directly reports such things, and include anyone who provided any additional information or participated in the investigation.
It also includes contractors and subcontractors of these organizations.
Dodd-Frank Wall Street Reform and Consumer Protection Act
While the Dodd-Frank Act was focused on improving financial regulations to avoid another financial crisis, it also has provisions that incentivize whistleblowing to ensure compliance.
It expanded whistleblower protections that were previously established under SOX, and expanded the prohibition on retaliation.
It also increased the payments financial whistleblowers could expect to receive in the event their information leads to substantial sanctions.
Per the Securities and Exchange Commission (SEC):
The Dodd-Frank Wall Street Reform and Consumer Protection Act, enacted on July 21, 2010 (“Dodd-Frank”), established a whistleblower program that requires the Commission to pay an award, under regulations prescribed by the Commission and subject to certain limitations, to eligible whistleblowers who voluntarily provide the Commission with original information about a violation of the federal securities laws that leads to the successful enforcement of a covered judicial or administrative action, or a related action. Dodd-Frank also prohibits retaliation by employers against individuals who provide the Commission with information about possible securities violations.
(Further details available here: https://www.sec.gov/rules/final/2011/34-64545.pdf)
Here are the groups most commonly associated with whistleblowing enforcement:
As noted above, OSHA is responsible for hearing whistleblowing complaints and investigating employee concerns for almost two dozen different laws with whistleblowing provisions.
They are the first go-to for many whistleblower statutes.
Securities and Exchange Commission (SEC)
Besides being responsible for enforcing some of the laws outlined above, the Securities and Exchange Commission helps to investigate fraud claims.
They can give rewards to employees who come forward with legitimate, actionable information that leads to a large enforcement action.
In fact, the whistleblower may be entitled to a portion of the sanctions imposed on the organization, which gives whistleblowers a monetary incentive to come forward.
The SEC can also lodge a retaliation case against an employer on behalf of the employee.
It is important to note that in most cases, an employee will have whistleblowing protections even if he or she turns out to be incorrect in their allegations.
These are not the only laws that have whistleblowing or anti-retaliation protections; this is meant to be a primer of some of the more prominent legal examples.
Always consult legal counsel with specific questions.
Currently, legal protection for Whistleblowing in Canada varies from province to province with each province enacting policies to strengthen the national laws that many feel are currently inadequate to properly protect employees.
For example, in 2016 the Ontario Securities Commission (OSC) started up a Whistleblower hotline and enacted quasi-criminal laws to help stop reprisal action against those that ‘blow the whistle’.
There are currently discussions within the Government of Canada to strengthen current legislation to better protect employees.
An interesting article in the Financial Post compares Canada to United States in regards to Whistleblowing titling the article “Whistleblowing in the U.S. can make you a millionaire. In Canada, it can get you fired”
See “Enhancing Whistleblower Protection” for further information.
Whistleblowers are protected in the United Kingdom under the Public Interest Disclosure Act 1998.
The UK government has created a simple webpage that describes what a Whistleblower is and who is protected by the law at https://www.gov.uk/whistleblowing.
According to Whistleblowing.com, Australian laws regarding Whistleblowing are stronger for Public Sector employees than those in the Private Sector with rules covering all states in Australia.
Protections for Whistleblowers in Australia’s private sector are weaker than those of the Public Sector. However, from an employer’s perspective, this means that private sector organizations need to have comprehensive polies and procedures for employees to allow reporting of wrongdoing by the organization.
As noted above, when an employee has a concern that falls under one of the statues (or any other statute with whistleblower protections), that employee has options of where to turn.
- Come to the employer in the hopes of getting the issue resolved.
- Go to the appropriate governmental organization, such as OSHA, the SEC, or the Office of Special Counsel.
- Go to a third party.
Regardless, there is a possibility a lawsuit may be initiated, either by the employee or by the organization responsible for pursuing the matter.
For employers, it is important to make a distinction here.
Remember, there are two entirely separate situations in which a lawsuit could be initiated:
A lawsuit could be the result of the investigation arising from the initial complaint (i.e. the issue for which the employee is “blowing the whistle”).
The details of such a lawsuit depend entirely on what the problem is and all the specifics involved.
A lawsuit could be initiated based on a discrimination or retaliation claim by the employee or other protected individuals, after the fact.
In this scenario, the retaliation suit could be brought by almost any of the organizations the employee might turn to with the original complaint.
In many cases, if a whistleblower has been wrongly terminated and the court agrees, the employer may be liable for not only back pay, but possibly additional pay with interest, along with reimbursement for any costs incurred.
If an employee comes to you with concerns about any type of wrongdoing or other items that could fall under the whistleblower umbrella, there are things you can do to ensure you are acting legally.
However, it pays to ensure that your team is aware of employee rights prior to any issues arising. Specifically, the right to bring such concerns without facing retaliation.
Let us start there.
The laws we described above give significant protections to employees who become whistleblowers.
Most critically, they are protected from any retaliatory action—and this is usually true even if their complaint turns out to be completely invalid, if the complaint was brought in good faith.
As such, employers need to understand that they are not to do anything to retaliate against the employee.
In practical terms, this means that employers should ensure everyone in any position of power or influence over employees understands this obligation. It may be beneficial to hold training for these individuals so they know their responsibilities in this regard.
Be sure to have an environment in which employees feel they can come to you.
It will be better for the employer if they can work with the employee to resolve any concern before the employee takes the concern to an external organization. Of course, this is not always possible, and if others have been harmed it is important to not attempt to hide things.
Instead, try to make things right.
That said, if there is a concern or a potential issue that can be addressed or a problem that can be rectified, the employer has a good opportunity to do so by keeping lines of communications open with employees.
Implementing a formal whistleblower anti-retaliation program is a good idea for most large organizations. In fact, OSHA has created a set of recommendations for employers who want to create such a program. Detailed guidance can be found on the OSH official site.
Anti-retaliation programs can:
- Help employers to ensure that employees feel safe in bringing forth concerns.
- When employees can bring up issues early, they are often easier to fix.
This is better for everyone.
Formal Whistleblowing Policy can:
- Help to mitigate the risk of inadvertent retaliation (i.e. having trained staff helps to ensure no one retaliates and causes legal trouble for the employer).
Key Pieces of a Good Anti-Retaliation Program include:
- Managerial commitment
- A clear method for hearing and addressing concerns
- Anti-retaliation training
- Program management
Anti-Retaliation Program should:
- Be regularly reviewed and updated as needed.
- Not be merely symbolic.
- Work to ensure that employees truly feel they can bring concerns and ensure that management understands it is never appropriate to retaliate—even if the employee voiced a concern that turned out to be incorrect.
If you have an employee that comes to you with concerns, listen respectfully and try to work with the employee to find the underlying cause of any issues.
Usually, this is the best way to handle any issue—investigate it thoroughly and address anything you find.
Consider having a third party involved in the investigation process to ensure impartiality.
Do NOT try to cover up wrongdoing!
Remember, it is possible the employee (or others) will also take the concerns externally.
An online article like this one is not a substitute for proper legal counsel. Always consult legal counsel in your area with specific questions.
Your documentation can help you defend yourself from incorrect or fraudulent claims.
During a whistleblower investigation, nearly all types of information will be fair game for investigators to review, including:
- Phone records
- Text messages
- Log files for computer systems
- Meeting minutes
- Other pertinent documentation
All types of documents can and will likely be reviewed as evidence. If found to contain relevant information, those files can then be used in court proceedings.
This is true for a lawsuit related to wrongdoing highlighted by a whistleblower, or for a retaliation lawsuit initiated by the whistleblower or his/her representative.
Remember, the whistleblower has likely gathered their own documentation in advance of making any type of claim.
Therefore, it is critical for employers to have good documentation to defend their case. This means documentation that will hold up in court.
Utilizing a Forensic Electronic Document Management System (FEDMS) is a great way to ensure that your documentation can be used to defend your case if the need arises.
With a FEDMS, you will be able to show that documents were not altered or falsified.
You will also have proof of when a document was created.
Having that level of court-ready, verifiable documentation will go a long way in establishing and maintaining credibility should you have to defend yourself against a claim of wrongdoing or a claim of retaliation.
Forensic Electronic Document Management System (FEDMS) – HR Solution
Creating and maintaining the entire host of HR-related documents for all employees can be daunting.
After all, you’ve got to maintain files in a way that is:
- Legally compliant
- Easy to access
- Easy to use
- Maintains confidentiality and security
Complicating matters is the fact that:
- Files may be subject to audit
- Need to be accessed separately from the rest of the employee files
- Usually exists in many places
Considering the above, you can see why it is often a thankless job to keep employee documents maintained in an orderly, legal, and efficient manner.
A lot of organizations today have some combination of paper and electronic records for each employee.
For example, at the time of hiring, there may be the application and I-9 form.
The I-9 form is often filled out on paper, but there may also be electronic records for other pertinent hiring details.
There may be any number of different files maintained by the HR staff. This may include documentation of:
- Disciplinary actions
- Tracking of paid and unpaid leave
- Emergency contacts
- Yearly documents for the government
And the employee’s manager will often maintain performance reviews and related documentation separately within their own department.
Why Move from Paper to an Electronic Document Management System?
Keeping Human Resource (HR) documents (and much more) organized and compliant is a big task.
As a result, more organizations are making a push for an all-electronic system, as the benefits can be significant.
Moving away from paper-based employee records has many advantages, including…
Reduce Redundancy & Allow Files to be Accessed Instantly from Remote Locations
With a digitized system, files can be accessed from multiple locations on various devices.
This can streamline access issues and ensure that anyone that should have access to the files will have access. Even if they are on the other side of the country.
Compare this to a physical file cabinet which requires the person with the keys to be physically present at a location to get a file out.
Once they get the physical file out of the locked file cabinet, they may need to scan and email the contents of that file to a remote location.
Although this may not seem like a big task, each request can easily take 15 or more minutes to complete:
- Go to secure file cabinet
- Unlock cabinet
- Search for correct document
- Make sure its the latest version
- Scan the document
- Deal with the typical “paper jam” issues that seem to plague scanners and copiers
- Email the document
- Go back to the secure file cabinet
- Properly place back the document in the correct folder
- And finally write down that you accessed and sent this document off to another person
Electronic Documents Management Systems (EDMS) allow immediate access to files no matter the location of the user or electronic file.
As we’ll see in a moment – there’s no need to sacrifice security for the convenience that a EDMS offers.
#1 Priority – Security
Security of files is critical for many reasons. One such reason is to maintain confidentiality.
Employers may need to store employee medical information which may be relevant for:
- Health insurance
- Wellness programs
- Leave taken under the Family and Medical Leave Act.
This information should not be distributed to anyone, not even the employee’s manager in most cases.
When there are files that should have limited access, storing them electronically can allow you to have safeguards.
Forensic Audit Logs
These safeguards should result in forensic audit logs which clearly show who had access and when it occurred.
This ensures that the information does not get distributed to anyone who should not have it.
This is a clear benefit over a paper filing system, which could be accessed by anyone who gets into the area where it is stored.
Compliance & Legal Safeguards
Compliance and legal safeguards should be built into the product you’re using.
Compliance concerns can take several forms.
The organization may need to prove that some forms were created in a timely manner, such as I-9 forms or OSHA accident records. When using an electronic filing system, it’s easy to see the date the item was created and every time it was accessed or modified.
But note that these dates are not foolproof in all systems.
Unless a system is designed to stop and detect attempts to modify data, the validity of your documents can be questioned in legal cases. This could reduce your organization’s credibility if you are unable to prove when a document was created or accessed.
This is possible since it is actually very easy to create or modify electronic documents to show whatever date you want.
But, if you utilize a product like Forensic Notes, you’ll also have the ability to prove that the dates were not altered.
This is a core functionality of Forensic Notes.
This is accomplished through a digital timestamp certificate issued by a third party which can’t be altered.
Being able to prove file creation, access, and modification dates can prove that important files were created in a timely manner and only viewed by authorized employees.
Another legal safeguard relates to keeping files private and confidential as needed.
This is yet another area where an electronic document management system can be beneficial.
You can setup security parameters on specific folders or Forensic Notebooks based on users or groups. This could include passwords or access restrictions.
This means you can keep some parts of an employee file separate from others without having to have two separate physical file cabinets.
Yet another way that a system like Forensic Notes can help with legal compliance is to prove that a document has not been modified after-the-fact.
If you’re defending a wrongful termination claim, you’ll be able to show that you contemporaneously documented problems as they occurred.
As a result, you’ll be able to:
- Prove that you didn’t simply go back and add documentation after the case was initiated in an attempt to show no wrong-doing
- Show that no files were deleted such as deleting a stellar performance review that contradicts the termination rationale
In court, the credibility of the witness and authenticity of the evidence is key to having evidence admitted and relied upon.
This is only possible if you have a system that ensures that dates cannot be altered or falsified. It is also important to show that documents cannot be deleted without a trace.
These are features of a Forensic Electronic Document Management System (FEDMS). Forensic Notes is the first and only such system.
Why is Forensics Important?
Civil and criminal courts regularly rely on Digital Forensics to determine the guilt or innocence of individuals and organizations.
Printable Employee Documents
Electronic files can always be printed if needed for legal or personnel purposes.
A common fear of transitioning to an all-electronic system for employee files is how to manage situations in which someone needs to review the files but doesn’t have access to the system.
This could be an outside inspector conducting an I-9 audit.
In a case like this, you could either print a physical version of the document and provide to the inspector or an electronic version which can be further safeguarded with the use of passwords.
Save Time During Legal Proceedings
You may be required to provide all information about an employee due to a lawsuit.
In these circumstances, you will likely need to provide all information you have in regards to that employee.
This process is often referred to as Full Disclosure.
Full Disclosure can be a daunting task if you currently using a paper-based system or inefficient electronic system.
Having a FEDMS can save you both time and money.
This is because FEDMS like Forensic Notes can show when, how and by whom a document was created or modified.
This eliminates the need to spend hours and thousands of dollars paying a Digital Forensic Expert to examine the documents to prove their authenticity.
Bear in mind that this is not true of all systems.
A system like Forensic Notes that eliminates the ability to alter time and date stamps or delete information from a file without a trace, means you’ll have documentation that will stand up in legal proceedings.
If you’re defending the organization, you’ll be able to prove:
- No documents were deleted before or during the course of the proceedings
- No documents were created or modified after the fact
- Documents were actually created at the time indicated
You’ll also be able to show that you’ve followed the legal obligation to not destroy any documents after the case was initiated.
Forensics is the key to many civil and criminal cases. Using an FEDMS strengthens your case from the start.
It helps to ensure that your documents will be in a format accepted in the courtroom and able to withstand legal scrutiny.
Re-Organizing & Purge Faster
An electronic document management system (EDMS) allows the greatest flexibility in how you store employee files and documentation.
This results in a customizable and flexible system while keeping security measures in place to ensure confidentiality and privacy.
An electronic system also allows you to purge and move files quickly as required.
Easier & Cheaper Backups
Electronic systems allow backups in case of emergencies or disasters at a much cheaper cost to the organization.
With paper files, an organization typically has one physical copy. In the case of a fire, theft, flood, or other disaster, that one copy could be gone forever.
This risk is easier to mitigate with electronic systems since the entire system can be backed up and replicated in a different region.
This would allow your organization to function as if the natural disaster never occurred in your other office locations.
Forensic Notes is hosted on Microsoft Azure which has the most comprehensive compliance coverage of any cloud provider. All data is geo-replicated in two separate regions of the United States.
To ensure that your data is secure, all data is encrypted both in transit and at rest. Click the following link to view the extreme measures Forensic Notes takes to ensure your data is safe & secure.
Searching & Auditing
An Electronic Document Management System will allow notes and documents to be searched. This saves you a lot of time compared to searching physical paper files.
Save Money on Maintenance
Electronic document management systems cost less to maintain.
While there may be an initial cash outlay to create and set up an online record-keeping system, there are also savings in the form of:
- Less paper
- Less ink
- Less storage space
- Fewer labor costs associated with maintaining the system
With all these benefits, it’s easy to see why most organizations have opted to digitize and streamline their personnel files.
With Forensic Notes, you’ll be able to have all these benefits plus the peace of mind that comes from knowing that you’ll be better protected in legal proceedings.
Always remember that the electronic document management system you put in place is one piece of the bigger picture.
You’ll need to plan for the rest of the implementation and maintenance like you would any other process change.
It starts with ensuring that the organization’s policies and processes will support the system. And that everyone involved has adequate training to make sure the system will be used to its full potential.
A system is only as good as those using it.
If documentation protocols are not followed, an EDMS cannot protect the organization.
But, if proper procedures are followed, you’ll have proof that you’re legally compliant when the time comes.
Are You Ready?
Are you ready to take the next step and move towards a Forensic Electronic Document Management System (FEDMS) like Forensic Notes?
Protect the credibility of your organization with Forensic Notes.
Employment Lawyer & Mediator
Listed in “Best Lawyers in Canada”
Top Legal Social Media Influencer
Author on Employment Law
Do you have an employee that is causing ongoing frustration due to their workplace behavior and performance?
Do you believe you are justified in firing this employee without providing a severance package, but fear that this will result in a costly lawsuit?
Luckily, Employment Lawyer Stuart Rudner has written the following article for you on Just Cause Termination.
He also discusses severance packages, human rights, workplace harassment and allegations of unpaid overtime.
Read the following informative article to learn exactly what is Just Cause for Termination from a top influential legal expert.
Stuart’s law firm was named as one of the top 3 employment law firms in the country.
Just Cause Definition
Lack of Documentation
Those of you who work with Employment Lawyers will have heard this before: the best thing that an employer can do is to “Document, Document, Document!”
Document performance concerns, misconduct, disciplinary actions, requests for accommodation, and anything else that may become contentious.
Otherwise, the lack of documentation will almost inevitably weaken your case if your actions are challenged.
One obvious area where this is relevant is discipline and dismissal.
Discipline & Dismissal
It is a common occurrence for members of my firm to receive a call from a corporate client in which the client expresses their frustration with the ongoing performance or behavioral issues of a particular employee and proclaims that they have had enough and want to dismiss him or her.
They then broach the issue of whether they can do so for cause, at which point we ask them to send us the employee’s file.
In the vast majority of cases, what we receive is a file that does not contain a single negative comment.
It will contain average performance reviews, and no indication of any concern.
As we must then explain to our client, the lack of evidence of any ongoing concerns, and the fact that the employee was apparently never advised of any concerns, or of the consequences of failing to remedy the situation, means that a dismissal for cause is extremely unlikely to withstand scrutiny.
By way of background, in Canada there are two forms of dismissals:
- Termination without Cause
- Termination for Just Cause
Termination without Cause
Generally speaking, employers have the right to terminate an employee’s employment at any time without cause, as long as they provide the employee with reasonable notice of the termination, or reasonable pay in lieu thereof.
Often the biggest legal issue surrounding these dismissals is the adequacy of the notice offered to an employee.
Employment standards legislation sets out the absolute minimum that can be provided.
If the contract of employment contains a properly drafted termination clause, then that will establish the employer’s obligation, which can be as little as the legislated minimums.
In most cases, there is no such contractual provision, and the employee will be entitled to “reasonable notice”.
Contrary to popular opinion, this is not necessarily one month per year of service.
Our courts have been clear in stating that there are no convenient formulae or calculations, and that every case is to be assessed on its own particular circumstances.
The most common factors are often known as the “Bardal Factors, after the Bardal v. Globe & Mail, decision, which are age, length of service, nature of the dismissed employee’s position, and availability of similar employment.
Of course, this list is not exhaustive, and many other factors (such as inducement), can be considered.
“Reasonable notice” can be extensive. The unwritten rule is that it will not exceed 24 months, though the trend is to see increasing numbers.
In many cases, it will be close to a month per year, but it can be significantly more.
If you’ve been terminated without cause, you may be dealing with a wrongful termination. In this case, you will want to seek an experienced employment lawyer.
When meeting with an employment lawyer, you will want to provide several documents such as:
- Your personnel file
- Company policies
- Pay records
- Physical evidence such as pictures and messages
- Diary or journal entries
- Witness statements and contact info
Termination for Just Cause
Termination for just cause, on the other hand, means that an employee is not entitled to any notice or compensation for dismissal whatsoever.
Obviously, the ability to demonstrate just cause can be critical.
Furthermore, if an employer alleges just cause and then loses a wrongful dismissal suit, they will be liable for all pay in lieu of notice, possibly other damages if a court finds that they acted in bad faith, their own legal fees, and a portion of the employee’s.
This can be a massive liability.
I am the author of You’re Fired! Just Cause for Dismissal in Canada, which discusses the law regarding when individuals can be dismissed for cause.
In the course of writing the book and updating it twice every year, I review all just cause decisions.
Courts are very protective of employees, whether in the context of dismissal, accommodation, or otherwise.
Given the harshness of a for cause dismissal, it is often referred to as “the capital punishment of employment law”.
It is absolutely possible to dismiss an employee for cause, but the threshold is high, and evidence will be crucial.
For that reason, employers need to be sure that they have evidence to support any allegations or defend their conduct.
Otherwise, many courts and arbitrators will “default” in favour of the employee.
Document Employee Interactions & Requests
Another area of employment law where documentation is important is human rights.
We have seen a tremendous growth in the protections afforded by Human Rights legislation and the need for employers to accommodate various employee conditions and obligations, including childcare, disability, and religious observance.
As we always advise clients, you should never dismiss a request for accommodation out of hand.
Rather, all requests should be documented, as should the assessment of the request and the possibility of providing accommodation.
Simply advising that accommodation is “not possible”, without any documentation of a legitimate assessment, will not be enough.
Workplace Harassment & Bullying
In recent years, we have also seen increased emphasis on workplace harassment, and the obligation of employers to address any such misconduct.
Legislation that will soon be in place in Ontario requiring that specific issues be addressed in written policies, including a clear process for investigating allegations of harassment.
It is critical that employers document all such allegations, as well as the steps that are taken to investigate them, the conclusions reached, and the actions taken as a result, including any disciplinary or remedial measures.
Our firm has also seen several clients taken to the Ministry of Labour based upon allegations of unpaid overtime.
In some cases, the employee had handwritten notes of hours worked, and the employer had nothing.
Obviously, they were at a tremendous disadvantage.
The bottom line is that whether you need to justify discipline or dismissal, investigate harassment, or respond to allegations of failure to accommodate, documentation is critical.
While you may be able to call a witness, oral evidence is less reliable and less compelling than contemporaneous documentation.
Of course, it is also important to utilize a tamper-proof, secure system.
I have seen individuals allege that disciplinary and other records were fraudulent, or backdated, or otherwise unreliable.
It will be important for any party producing documentary evidence to be able to demonstrate that it is reliable.
We work with both employers and employees.
Many of our clients are based in the United States or Europe, where the employment laws are quite different.
In the course of explaining Canadian Employment Law, we stress the need for documentation, and the value that an employee’s “file” can have when issues arise.
Unfortunately, both sides tend to overlook the fact that the employment relationship is based upon a legal contract, and that while everything might be good in the “honeymoon phase”, disputes can arise and it is very difficult to pursue a claim, or defend against one, without any documentation.
Just Cause Employment Law
Stuart Rudner and his firm, Rudner Law, specialize in Canadian Employment Law.
Stuart has been listed in Best Lawyers in Canada (Employment Law) and named a Top Legal Social Media Influencer (follow him on Twitter @CanadianHRLaw). His firm was named one of the Top 3 Employment Law Firms in the country.
Stuart is the author of a leading text on Summary Dismissal as well as chapters in four other books.
He can be reached at [email protected] or 416.864.8500.
For more information about the firm, see RudnerLaw.ca
Just Cause Termination Letter
A Just Cause Termination letter should be carefully prepared and vetted by legal counsel and Human Resources. It should clearly outline any severance or benefits that will be paid out to the employee being terminated.
Just Cause Termination Examples
Termination for Just Cause may be valid based on the following examples:
- Violate company ethics policy
- Failure to follow company policy
- Neglect of Duty
- Breach of contract
- Stealing money or products from the organization
- Lying or deceiving within the organization
- Falsifying records
- Harassing other employees or customers
- Threatening other employees or customers
- Violence towards other employees or customers
- Being intoxicated on the job
- Being under the influence of drugs on the job
- Criminal conviction
- Viewing inappropriate websites at work, including pornography or illegal material
But is Termination for Cause as straightforward as you would like?
This is likely not the case as the following example of employee theft could result in a wrongful dismissal case against your organization if not handled appropriately or without proper documentation.
Source: BC Employment Standards Branch
As you can see from the above example, the laws in your region may not be clear on when you can fire a employee for cause.
It is highly recommended that you always contact an experienced employment lawyer prior to termination of an employee.
Termination vs Dismissal
Are “Just Cause Dismissal” and “Just Cause Termination” the same thing?
This common question is best answered by first understanding both the definition of Termination and definition of Dismissal.
1. Last step of employment where a worker is let go.
2. Customer cancellation of remaining work of a contract.
Dismissal Definition – Dismiss Definition
The reality is that termination and dismissal are often used interchangeably – but there is one key difference:
Termination could be an action taken by either the employer or employee in ending a contract.
A Quora post provides further information on the difference:
Like a cancer,
he or she insidiously eats away at the fabric of a peaceful workplace and sows poison and discontent among fellow employees, while keeping within the very fringes of company rules and regulations.
Problem employees and why you need to keep records
Problem employees abound in workplaces and neither small companies nor large ones are immune to them. Sometimes, they’re easy to spot – the lazy one who always turns in sub-standard work despite being given all necessary support to help him excel; or that one inconsiderate person who rubs everybody up the wrong way and considers any attempt to correct her as harassment; or the perennial late-comer who seems to think that showing up at work is optional. Other times however, the problem employee is not so easily identified. Like a cancer, he or she insidiously eats away at the fabric of a peaceful workplace and sows poison and discontent among fellow employees, while keeping within the very fringes of company rules and regulations.
Regardless of whether the problems are obvious or not, problem employees do not bode well for a company’s productivity or well-being. They consume a disproportionate amount of HR and management time and attention and since you, the HR manager, are the intermediary between employees and the organization, it falls to you to determine how this important issue ought to be tackled within your organization. As the HR manager, you ought to take precautions to protect your company (and if we’re being honest, your own job too) from the ugly consequences of not having a proper system in place for handling such employees as early as possible.
It is easy to fall into the trap of thinking that termination of employment is the simplest and most obvious route to taking care of a problem employee, but the reality is that it is hardly ever that easy. Problem employees become angry ex-employees. Like a marriage gone sour, angry and disgruntled ex-employees have been known to go out of their way to make the ‘divorce’ as excruciatingly painful for the former employer as possible. Expensive litigation, campaigns to assassinate the character of the company, even leaking confidential company information is not outside the realms of possibility for such people. Even companies as big as Yahoo and Microsoft are not immune. In recent times Yahoo has been forced into litigation after someone it described as a “former rogue employee” leaked confidential company information that formed the backbone of a book the company was very unhappy about. Such conduct, as Yahoo pointed out in its lawsuit not only puts the company at risk, it can “cause unnecessary distraction within [the] workforce” and “undermine the conduct of every other…employee” who honored a promise to safeguard confidential information. Microsoft for its part had its trade secrets leaked by another such ex-employee, who apparently was not happy about a poor performance review he received while employed at the company.
Such cases clearly show that problem employees represent a danger for the company and its workforce. The most important thing any HR manager can do is to anticipate the likelihood of such an occurrence. You should never wait until you have a problem employee before trying to decide the best course of action. In fact it is best to assume that at some point or the other, your company will employ at least one such employee and so you need to be prepared for the day that this delightful personality will walk through your doors and proceed to make your life a misery.
While it may be difficult to find an appropriate way of addressing this issue, at the very least, your company needs to make sure that its expectations are clear through written policies and performance reviews. More importantly however, bear in mind that as with most conflict-related issues in the workplace, the first line of defense is solid documentary evidence to back up the company in the event of any disciplinary hearings, adjudication or litigation that may arise.
Below we’ll talk more about the unique advantage that Forensic Notes offers to HR managers in addressing the issue of problem employees, but first it is important to understand how to address the issue of problem employees, including the benefits of keeping proper records and the potential consequences of not doing so.
I have a problem employee. What should I do?
We live in a highly litigious society and employee lawsuits are some of the most frequently filed. In 2014 alone, 88,778 cases were brought before the Equal Employment Opportunity Commission, (EEOC) the agency that enforces employment laws in the United States. Managing problem employees in the face of our increasingly litigious society is one of human resources’ most serious challenges. Although it is tempting to ignore the problem due to fear of litigation, the best approach is to tackle the issue of problem employees head on. Below is a suggestion of what to do when faced with the problem of a difficult employee:
- Collect as much information about the problem from as many sources as possible. This will help you convince both yourself and the employee in question that the problem exists – and that the behavior must change.
- Have a meeting with the employee to discuss the issue without making a big scene. Be honest, and upfront, and discuss what you are seeing and how important it is to have the whole department working in “harmony”. Focus on the problem, not the person.
- Set up a three-step disciplinary process that includes formal notices such as: verbal warning, first report in writing, and second/final report in writing.
From the outset, the goal should be to reach a mutually acceptable solution that resolves the difficult employee’s inappropriate behavior, but sometimes this is just not possible if the employee is unwilling to change. You may then find yourself with no other option but to terminate in order to protect your company and other employees. In that case, begin termination procedures in accordance with your company’s policies. Bear in mind though that firing the employee does not necessarily mean the problem is solved. In fact, there are well-documented instances where employees who are fired resorted to extreme action. One of the most notorious examples is that of self-described “powder keg” employee Vester Lee Flanagan, the onetime TV reporter who killed two former co-workers on live television. While it’s true that not every disgruntled employee will resort to such extreme action, it is also true that retaliation claims by former employees are not uncommon, so it is important that your company is proactive to protect itself against retaliation claims or other legal actions.
- Keep a record of everything that transpires and store this securely.This is absolutely the most essential step you can take to protect your company in the likely event that litigation arises, and should be an integral part of each of the four preceding steps. All information about and arising from the meetings and discussions should be recorded and this documentation should be stored safely in a manner that will protect its integrity and ensure its authenticity cannot be challenged. To be on the safe side, employment law practitioners recommend keeping records for at least five to seven years after an employee has left the firm.
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How does good record keeping protect me and my company?
Record keeping is already mandatory for HR managers because of numerous various laws, which require employers to create and retain various employment records, so your company likely keeps detailed information about employees in personnel files. However, it is important to bear in mind that the kind of information that is required to be kept in relation to problem employees and how such information needs to be kept is quite different from the usual general record-keeping. For one, it is entirely possible that some details may be of an intimate or personal nature and may involve a third party whose anonymity needs to be protected. Or it may include some sensitive business information. These various kinds of sensitive data make it imperative that your company have a state-of-the-art information security system, preferably one kept outside the physical premises of the company such as that which Forensic Notes provides. Also, as problem employees are more likely to institute legal proceedings or initiate complaints to adjudicatory bodies, or even expose your company to some form of liability, keeping the right kind of record is a strategic and prudent approach to managing these employees and protecting the interests of your company.
The right kind of record keeping protects you in the following ways:
Legally speaking, an employee who engages in reckless behavior, such as reckless driving or use of drugs or drinking on the job, can leave the employer liable for the actions within the “course and scope of employment.”
In such a case, the appropriate action to take when you learn of such behavior is to investigate the situation, impose discipline and keep a record of the issue and all actions taken by the company. In addition to other benefits, this will show that your company was not complicit in the employee’s actions. And consider the possibility that an employee who has no problem disregarding company rules and regulations will likely not have any problems being dishonest. In the event that adjudication is required, what is preventing him or her from lying and fabricating evidence? In the end, it’s your word against theirs. Considering the fact that in any employer vs. employee case, the company already has the distinct disadvantage of being perceived as the “big guy” trying to take advantage of the “little guy”, you need to have compelling evidence that establishes facts rather than hearsay or word of mouth testimony. Such evidence needs to be in a form that details every step taken by your company to address the problem, at the time they were taken. This will include every effort made by the company to assist the employee, his or her response to such efforts, observations made about any changes in behavior either by you or by other employees.
Obviously, all of this information amounts to a copious quantity of notes and materials, and ensuring their timeliness can be a burden, especially when you’re recording and storing everything manually. This is one of the distinct advantages that Forensic Notes offers. With the ability to make contemporaneous notes of everything, be it emails, memos, voicemails, SMS messages – or whatever it may be, Forensic Notes offers you the ability to create a detailed and accurate timeline of events in relation to this problem employee. Not only that, it also gives you the peace of mind of knowing that all your record keeping is not in vain – your records cannot be tossed out in court because they’re unverifiable or are subject to claims of being tampered with, which is a major disadvantage when documents are stored traditionally either in physical files or simply as electronic documents on your company server.
What kind of records should you keep and how does Forensic Notes help you do that?
It is best to keep all records of the behavior that is considered problematic including the date, time and reason given for each incident and who was involved. In addition, keep records of:
- Every complaint that you get about the employee
- All physical or electronic interaction with the employee.
- Details of discussion with the employee, including what was discussed, when and any witnesses.
- All performance issues related to the employee.
Why is Forensic Notes the best way to record information related to problem employees?
In today’s business world, it is not enough to keep only basic personnel records. A company needs to anticipate that a problem employee issue will arise, and prior to any lawsuit, take and keep detailed notes that will provide best evidence in a court of law. The accuracy of your documentation can mean the difference between a long, tiresome litigation and a clean break from a problem employee.
Do you need to:
- Document something that happened to you?
- Describe an incident you witnessed?
- Create incident reports as part of your job?
- Prove that your documents were written on a particular date?
Are you a:
- Police Officer
- Private Investigator
- Safety Officer
- Witness to a Crime
- Victim of a Crime
- Witness to an Accident
- Injured in an Accident
- Human Resource Department Manager / Employee
- Victim of Bullying, Harassment or Discrimination at Work
No matter your job or the incident you’ve experienced, if you need to write a statement, there are some important characteristics that your statement must have, and some pitfalls that you must avoid.
The following guidelines will help you produce a well-written statement to ensure you properly document all evidence for your particular incident.
Best Practice Guidelines for a Well-Written Statement
1. Write Chronologically and In First Person
Your statement should be a chronological account of the incident, written as a narrative in the first person.
For example, your statement might include:
On September 4th 2016, I was working at my desk transcribing reports for my supervisor John Smith. It was approximately 10:00 AM. While I was typing, John approached my desk and starting tapping his fingers on the top of my computer monitor. I looked up and asked him if I could help him. He said nothing but instead grabbed a pen from my desk and dropped it into my full cup of coffee. He then turned and walked away.
2. What You Include In Your Report Is Key!
The information you provide should be clear and concise, specific and factual, accurate, objective and of course as relevant as possible.
John regularly approaches my desk for no reason other than to annoy me.
On three separate occasions this week John approached my desk and tapped his fingers on my monitor.
List them. Include dates and times.
You should also add additional details, if they exist, such as:
On two of those occasions my co-worker Sally was standing in my cubicle with me and observed John’s behavior.
3. Tell the Whole Story
Your statement should be written with the assumption that the reader has no prior knowledge of the situation.
For example, your statement should include some background:
I, Maggie Brown, am currently employed at Company XYZ with the title of Administrative Assistant. I have been employed with Company XYZ since 2010 and in this position since January 2015. Since March 4th 2015, my direct supervisor has been John Smith. I work in an open office space on the 4th floor of 123 Main St. I work at a desk in a cubicle in close proximity to three other employees and outside of the enclosed office of John Smith.
4. Be Honest and Factual
You may be challenged on the details of your account, so don’t embellish; it diminishes your credibility.
Everyone in the office saw John bully me.
When John dropped my pen into my coffee, I was approached by two co-workers who advised they had witnessed what he did.
5. Avoid Hearsay
Avoid including information told to you by others, but if you do, you must make it clear that you don’t have direct personal knowledge and that you are merely relaying information you have been told.
John has told others that he wants to irritate me until I leave the department.
Although I did not hear this myself, On Sept 5th 2016, my co-worker Elsa told me that she had overheard John telling another manager that morning that he did not like me and was hoping I would leave.
6. Be Brief and Be Organized
If appropriate, use headings and diagrams to clarify your evidence.
I, Maggie Brown, am currently employed at Company XYZ with the title of Administrative Assistant. I have been employed with Company XYZ since 2010 and in this position since January 2015……
Details of Incident
On September 4th 2016 I was working at my desk transcribing reports for my supervisor John Smith. It was approximately 10:00 AM. While I was typing, John approached…
7. Document Anguish, Emotional and Physical Pain
If the incident causes anguish, emotional or physical pain, then it is appropriate and recommended to include this information within a separate section of your statement.
This helps to ensure that your emotions remain separate from the facts of the incident.
Feelings & Emotions
I, Maggie Brown, have been affected by the ongoing harassment and bullying by John which has resulted in me suffering from sleep insomnia and anxiety. Today on my way to work, I began to feel sick to my stomach which resulted in …
8. Avoid Abbreviations, Lingo, or Professional Jargon
I’m a CAP at Company XYZ.
My position is Administrative Assistant and I currently hold the industry designation of Certified Administrative Professional (CAP).
9. Avoid Uninformed Opinions
If you need to give an opinion, make sure it is a professional view based on your professional judgement, experience and knowledge. Avoid uninformed opinions.
John acts this way to every female in the organization because his wife recently left him.
John began to harass me soon after his wife filed for a divorce. Prior to the divorce, John had made a comment to me that I reminded him of his wife. I believe this is one of the reasons why John harasses me.
10. Attach Relevant Files, Documents and Notes
You may also wish to attach documents or files to the statement as evidence.
– Add statements of any witnesses you have.
– Include emails, photographs, and hand-written documents (scan those and keep the originals!)
11. Include a Statement of Truth
Finally, include a statement of truth at the end of your statement.
This statement is true to the best of my knowledge and belief.
12. Grammar, Spelling and Details Are Important
Remember to check for spelling mistakes and any inconsistencies in the statement.
If possible, have a friend not associated with the incident review the document to ensure it’s clear and concise.
Handwritten Notes & Statements
Handwritten notes and statements written with a pen is quick and convenient, but it is nearly impossible to prove when it was actually written if it is presented months or years later as evidence.
This can often result in your credibility being questioned as the opposing party suggests or accuses you of backdating a recent handwritten statement to benefit your particular claim.
To help ‘prove’ the date of a handwritten note or statement, it is often recommended to have a witness sign and date your paper document. This is often sufficient if the person is an independent observer that can be proven to be credible.
Do you want a non-friend to read your most personal thoughts, feelings and emotions when dealing with harassment and bullying at work?
If you work within the Human Resource (HR) department, is it appropriate to have a person not associated with your work read personal documents about a problem employee you may be looking to fire in the future?
To solve the personal and potentially legal issues of having an independent observer read and confirm the date of all your documents, you could pay a notary or lawyer to notarize the documents in question.
Do you have the financial resources to legally notarize EVERY handwritten note you write?
Most would say they don’t!
As a result, people will often rely on friends, family or close co-workers to witness their statements.
Do you think this is sufficient for potential civil lawsuits that may result in $50,000, $100,000 or even $1,000,000 settlements?
Most people say that they would DO ANYTHING for a family member!
With that in mind, it is easy for the opposing party within a civil claim to suggest that a friend or family member simply conspired to backdate any documents of value in the case to help out their friend or family member.
It is also not hard for an opposing party to suggest or claim that an employee signed documents under pressure from management or co-workers to get rid of a problem employee.
Would you consider backdating a handwritten note or statement if it allowed your organization to fire an employee that has been bullying and harassing your co-workers for the past two years resulting in turmoil within your organization?
Most would say they wouldn’t, but many would ‘consider’ signing such a document to get rid of someone they dislike.
As you can see, paper statements and notes can cause numerous issues if presented in civil or criminal cases.
Are you ready to pay extra legal bills to fight against these potential allegations?
“You Are Only Providing Statements to Help Your Case!”
This may be the claim of the opposing party if you attempt to fire an employee as an HR Manager or sue a company for bullying, harassment, discrimination or wrongful dismissal.
As outlined above within the “Guideline for Producing a Well-Written Statement”, you should be factual, accurate and objective in telling your side of the story.
The courts want to know all facts in the case before making a decision. If they believe that one side is purposely hiding facts of the case, this will go against the credibility of that individual or business.
As a result, all paper notes about a person or series of incidents should be contained within a bound paper notebook that has sequentially number pages.
ALL relevant information should be contained within this bound paper notebook and adhere to the following guidelines:
- No pages removed
- No blank pages or sections within the notebook
- An ability to read corrected information or deleted notes
- Each note should be dated
- Each note should be signed by an independent witness
By including non-biased information, the courts will be able to better determine your credibility which will go a long way to them fully appreciating the potential issues discussed within the statements.
Electronic Notes & Statements
Electronic notes and statements written on a computer have many time-saving advantages while also increasing the quality of the statement through grammar and spell-checking capabilities.
However, the dates associated with electronic files such as MS Word documents can be easily altered and changed. Even Metadata contained within the electronic documents can be easily altered and modified to show any date required.
As a result, courts should not be relying on the Metadata associated with electronic notes and statements unless a full Digital Forensic analysis of the original computer system was completed. This type of Digital Forensic analysis can easily cost $10,000+ depending on the complexity of the case.
To help prove the date of an electronic note or electronic statement, you could manually set up a digital signing certificate to digitally sign documents as needed.
Don’t understand the above sentence?
You are not alone as many people would have a difficult time setting up and properly managing such a system.
Manually signing documents via a Digital Certificate also doesn’t solve the issues discussed within the “You Are Only Providing Statements to Help Your Case!” section above.
Forensic Notes offers the best of both words solving all the issues discussed above. Although we could tell you all the technical ways we solve the above issues, we’ll simply state that Forensic Notes replicates paper bound notebooks while automatically timestamping your documents from an independent service allowing you to easily PROVE when you wrote a statement.
If I’d know about these Forensic Notes two years ago my life might be very different right now. This is exactly what I needed and tried to create for myself through emails, but emails can be intercepted and are property of the employer. I have signed up for the free trial to give it a test run.
— Maureen D., Customer
Do you want to PROVE when you wrote a note or statement?
Forensic Notes allows you to properly document all types of incidents including workplace harassment, bullying and problem employees. Click here if you are serious about creating credible evidence.
Please help others and share this article with friends and colleagues.
FORENSIC NOTES – Terms and Conditions
Forensic Notes consists of online services and a website located at www.ForensicNotes.com, including subdomains, that provides users with access to the Forensic Notes digital notebook and note taking web application (collectively, the “Service”). The Service is provided by TwiceSafe Software Solutions Inc. (“TwiceSafe”).
3. USING THE SERVICE
The Service may require hardware including, but not limited to, a computer or mobile device with a then-current web browser and an Internet connection. A list of current supported web browsers is available at www.ForensicNotes.com/Supported-Browsers and that may change, without notice, in TwiceSafe’s sole and absolute discretion. You agree to provide all hardware and the Internet connection required to use the Service and to pay all fees incurred by you when accessing the Service through an Internet connection. Additionally, if you are an enterprise subscriber, the Service may require hardware and software to operate a local server containing your data. You are solely responsible for providing and securing the local server and all data it contains.
4. SERVICE TERMS
4.1 Service Subscription.
Except as otherwise provided in the Terms and Conditions, TwiceSafe grants you a non-exclusive, revocable, non-transferrable subscription to access and use the Service through registered accounts (each, an “Account”) (collectively, the “Subscription”). You acknowledge that no title or ownership interest in the Service or Subscription is transferred or assigned to you and that the Terms and Conditions is not a sale of any right to the Service or Subscription. YOU MUST BE OF THE AGE OF MAJORITY IN YOUR JURISDICTION TO ACCESS AND USE THE SERVICE.
The Subscription requires you to register one administrator-level Account (the “Primary Account”) and, if permitted by your Subscription, a number of subordinate Accounts, to access the Service. You are permitted to register the number of Accounts permitted by your Subscription type. An Account may only be used by the person for whom it was registered by the Primary Account holder. You acknowledge that no title or ownership interest in an Account is transferred or assigned to you and that the Terms and Conditions is not a sale of any right to an Account and agree that all rights in an Account shall be owned by TwiceSafe, excluding User Content (as defined below).
4.3 Username and Password.
Registering an Account requires you to select a user name and password (“Login Information”). You are solely responsible for keeping Login Information confidential. YOU AGREE TO BE BOUND BY ANY USE OF YOUR LOGIN INFORMATION, INCLUDING PURCHASES, WHETHER OR NOT YOU AUTHORIZED SUCH USE. If you become aware of, or reasonably suspect, unauthorized use of your Account, you must immediately change the password that is part of your Login Information. Any questions concerning unauthorized use may be emailed to TwiceSafe at [email protected].
4.4 Information Collection.
4.5 Accuracy of Information.
If you provide information to TwiceSafe including, but not limited to, an email address, phone number, address or credit card billing information (collectively, “Account Information”), you represent and warrant that such Account Information is accurate and complete. You shall promptly notify TwiceSafe of any change to your Account Information. TwiceSafe is neither liable nor responsible for the delivery, or receipt, of information sent to you using Account Information.
5. SUBSCRIPTION FEES, PURCHASES AND FEATURES
5.1 Subscription Fees and Add-Ons.
TwiceSafe charges a Subscription fee that varies depending upon the type of Subscription selected (the “Subscription Fee”) and add-ons, such as additional storage or additional Accounts, provided for an additional fee (“Add-Ons”). TwiceSafe will warn the Primary Account holder when an Account is approaching the limit of certain features provided by a Subscription and provide an opportunity to purchase Add-Ons to extend such features. The Primary Account holder shall provide TwiceSafe with a credit card and billing information to process the Subscription Fee and Add-Ons and agrees that TwiceSafe, or any third party acting on TwiceSafe’s behalf, is authorized and has the right to charge the credit card for applicable fees, charges and taxes that TwiceSafe is required to collect on a recurring yearly basis and that shall be billed on the date corresponding to the start of the paid Subscription. Where the Primary Account holder subscribes to an Add-On during an annual Subscription period, the price of such Add-On shall be prorated according to the period remaining in such annual Subscription and, thereafter, Add-Ons will be charged as part of the recurring Subscription fee for each annual period unless the Primary Account holder chooses to modify the Subscription pursuant to section 5.6 below. The Primary Account holder may change billing status details with TwiceSafe, those not yet charged to the applicable credit card, by contacting [email protected]. Please note that the Primary Account holder must cancel a Subscription and/or Add-Ons prior to the next recurring charge occurring in order not to incur charges for the next billing period.
5.2 Subscription Trial.
If a Subscription begins with a free trial, such free trial lasts for thirty (30) days or such other time period specified during sign-up. Whether you are eligible for a free trial is determined by TwiceSafe, in its sole discretion. Unless the Primary Account holder elects to cancel a Subscription prior to expiration of the free trial pursuant to section 5.6, upon completion of the free-trial period, the Primary Account holder will be charged for such Subscription pursuant to section 5.1. Please note that TwiceSafe will not notify you of the end of the free trial.
5.3 Subscription Features.
The Service features available to you vary, including but not limited to Service data storage and security features and certifications, depending upon the terms of your particular Subscription. Where you reach the limit of a particular Service feature (for example, data storage) and do not purchase an Add-On to increase such limit you may not be able to use certain Service features until such limit is decreased or an Add-On subscribed to. The Primary Account holder may add or remove Subscription Add-Ons at any time, subject to the cancellation procedure set forth in section 5.6 below. Service features are subject to change at any time, on one or more occasions, at TwiceSafe’s sole discretion without notice and without any compensation or refund to you. Notwithstanding the foregoing, TwiceSafe shall notify you of any change to Subscription Fees and Add-On fees through an email or Service notification, such changes taking effect 30 days from the date of notice. Current Subscription Fees, Add-Ons, features and terms are detailed at www.ForensicNotes.com.
5.4 Backup and Security.
The Service contains data redundancy features intended to ensure data remains accessible during a Subscription. TwiceSafe cannot guarantee that such redundancy features will always function as intended and STRONGLY RECOMMENDS that you download and backup Service data, especially notes taken using the web application. While the Service uses certain security certifications, TwiceSafe shall not be held liable for the failure of any Service security measures, or the compromising of the Service by a third party, without regard to the extent of the damage suffered.
5.5 Technical Support.
TwiceSafe may provide you with the Service technical support on such terms as set forth at www.ForensicNotes.com/account-pricing (“Support”). TwiceSafe shall suspend provision of Support in the case of your non-payment of any outstanding invoice, until remedied.
5.6 Cancellation of Subscription or an Add-On.
The Primary Account holder may cancel a Subscription or an Add-On by notifying TwiceSafe at [email protected] and, if a cancellation request is submitted within thirty (30) days following TwiceSafe’s receipt of payment for the Subscription or Add-On sought cancelled, the Primary Account holder is entitled to a refund for such payment (the “Refund Period”). the Primary Account holder must submit a cancellation request within the thirty (30) day Refund Period in order to be entitled to a refund of any kind. Notwithstanding the foregoing, TwiceSafe, in its sole and absolute discretion, may elect to issue a refund for cancellation taking place following expiration of the Refund Period of such amount as it deems acceptable. You acknowledge and agree that, upon cancellation, your Subscription and Add-Ons will remain active for thirty (30) days following the end of the billing cycle or, if notice of cancellation was submitted during the Refund Period, fourteen (14) days from the date of cancellation. Thereafter, you shall be denied access to any cancelled Add-Ons or, if your Subscription is cancelled, your Subscription entirely and all associated data will be deleted. Notwithstanding the foregoing, encrypted backups of your data may be stored for up to thirty-five (35) days, following deletion of your data, until deleted in accordance with our information deletion cycles. Please contact [email protected] for any questions concerning access to encrypted data backups.
5.7 Suspension and Termination of Subscription.
TwiceSafe may suspend or terminate your Subscription and any Account associated with your Subscription at any time for any reason including, but not limited to, violation of the Terms and Conditions and whether a suspension is lifted is at TwiceSafe’s sole and absolute discretion. Notwithstanding the foregoing, IF YOUR SUBSCRIPTION IS TERMINATED FOR VIOLATION OF THE TERMS AND CONDITIONS, YOU ARE NOT ENTITLED TO A REFUND OF ANY KIND.
The Subscription granted to you in the Terms and Conditions commences on the date you agree to the Terms and Conditions and terminates upon the earliest of:
- TwiceSafe’s termination of the Terms and Conditions and that may occur without notice or reason;
- your failure to pay any amounts due and owed by you to TwiceSafe;
- termination of your Subscription by you or TwiceSafe;
- your non-compliance with the Terms and Conditions or Code of Conduct (as defined herein).
7. CODE OF CONDUCT
The following Code of Conduct applies to your use of the Service. You agree to not, and not encourage others to, use the Service as follows:
- infringe or violate the right of any third party including but not limited to: (1) contractual rights; (2) copyright, patent, trademark or trade secret rights; (3) privacy rights; (4) publicity rights; or (5) the terms of any confidentiality agreement;
- attempt to gain, or gain, unauthorized access to the Service, including through the use of another user’s Account or through any method not provided by or approved by TwiceSafe;
- use the Service to transmit any data that contains, or redirects to, any malware or other harmful data;
- encumber, sell or license the Service, including a Subscription or Account, in any way;
- copy, damage, decompile, disassemble, impair, modify or reverse engineer the Service or otherwise attempt to derive its source code or meta data files, except as permitted by applicable law; or
- encourage or engage in illegal activities.
8. THIRD PARTY SOFTWARE AND SERVICES
The Service incorporates software and services provided or licensed to TwiceSafe by third parties (“Third Party Technology”). The Terms and Conditions do not grant you any license, right, title or other interest in Third Party Technology. Use of Third Party Technology may require you to enter into agreements between you and a third party. You shall review, and determine whether to agree to, any Third Party Technology agreement. TWICESAFE MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THIRD PARTY TECHNOLOGY. YOU AGREE THAT TWICESAFE WILL NOT BE LIABLE FOR ANY CLAIM, LOSS OR DAMAGE RELATING TO THIRD PARTY TECHNOLOGY.
9.1 TwiceSafe’s Ownership Rights.
TwiceSafe retains all right, title and interest in the Service, including, but not limited to, all copyrights, patents, trademarks, trade secrets, industrial designs, utility models and any other rights recognized pursuant to the laws of any country or jurisdiction, whether or not protected by law. TwiceSafe hereby retains all rights not expressly granted in the Terms and Conditions.
9.2 Ownership of User Content.
THE SERVICE IS PROVIDED “AS IS” AND TWICESAFE DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, TO THE EXTENT AUTHORIZED BY LAW. WITHOUT LIMITING THE FOREGOING, TWICESAFE MAKES NO REPRESENTATIONS THAT USE OF THE SERVICE WILL NOT INFRINGE ANY COPYRIGHT, PATENT, TRADEMARK OR OTHER RIGHTS HELD BY A THIRD PARTY. FURTHER AND WITHOUT LIMITING THE FOREGOING, TWICESAFE MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE SERVICE WILL MEET YOUR REQUIREMENTS, IS APPROPRIATE FOR YOUR NEEDS, CREATES DOCUMENTS ADMISSIBLE IN COURTS OF LAW IN YOUR JURISDICTION, THAT OPERATION WILL BE UNINTERRUPTED, CONTINUOUSLY AVAILABLE, ERROR FREE OR WILL NOT HARM YOUR COMPUTER OR MOBILE DEVICE OR THAT THE SERVICE IS NOT SUSCEPTIBLE TO INTRUSION, ATTACK OR COMPUTER MALWARE. NO ORAL OR WRITTEN ADVICE OR INFORMATION PROVIDED BY TWICESAFE, ITS DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS SHALL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT. PLEASE NOTE THAT SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED CONTRACT TERMS AND, AS A RESULT, THIS SECTION 10 MAY NOT APPLY TO YOU IN ITS ENTIRETY.
THE SERVICE HAS NOT BEEN REVIEWED BY ANY LICENSED ATTORNEY OR BY ANY COURT OF LAW, AND NO JUDGMENTS HAVE BEEN RENDERED, AS TO THE ADMISSIBILITY OF NOTES CREATED USING THE SERVICE. TWICESAFE HEREBY ADVISES THAT YOU OBTAIN INDEPENDENT LEGAL ADVICE FROM A LICENSED ATTORNEY REGARDING SUCH MATTERS AS, BUT NOT LIMITED TO, WHETHER DIGITAL NOTES ARE ADMISSIBLE IN, AND WHETHER THE SERVICE’S TIMESTAMPING FEATURES CREATE A CHAIN OF CUSTODY ACCEPTED BY, COURTS OF LAW IN YOUR JURISDICTION. YOU BEAR THE ENTIRE RISK AS TO THE PERFORMANCE, OPERATION, QUALITY AND EFFECTIVENESS OF THE SERVICE.
11. LIMITATION OF LIABILITY, INDEMNITY
YOU AGREE THAT TWICESAFE SHALL NOT BE LIABLE TO YOU FOR ANY LOSS OR DAMAGE OF ANY KIND ARISING OUT OF OR RELATING TO THE TERMS AND CONDITIONS OR USE OF THE SERVICE OR THIRD PARTY TECHNOLOGY AND INCLUDING, WITHOUT LIMITATION, CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES, LOSS OF DATA (INCLUDING BUT NOT LIMITED TO THE LOSS OF DATA THROUGH SUBSCRIPTION OR ADD-ON CANCELLATION), LOSS OF CONTENT, LOSS OF PROFITS, LOSS OF ANY CONTRACT, LOSS OF GOODWILL AND ANY AND ALL OTHER DAMAGES OR LOSSES, EVEN IF TWICESAFE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE FOREGOING LIMITATION OF LIABILITY ALSO APPLIES IF NOTES TAKEN THROUGH THE SERVICE ARE FOUND INADMISSIBLE IN A COURT OF LAW FOR ANY REASON WHATSOEVER. YOU AGREE TO INDEMNIFY, DEFEND AND HOLD TWICESAFE, ITS AFFILIATES, AGENTS, CONTRACTORS, DIRECTORS, EMPLOYEES, OFFICERS AND PARTNERS HARMLESS FROM AND AGAINST ANY CLAIM, LIABILITY, INJURY, DAMAGE, COST, LOSS OR EXPENSE THAT ARISES FROM YOUR USE OF THE SERVICE. THIS LIMITATION APPLIES TO ANY CAUSE OF ACTION OR CLAIMS IN THE AGGREGATE, WHETHER IN AN EQUITABLE, LEGAL OR COMMON LAW ACTION ARISING HEREUNDER AND INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY OR INDEMNITY, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY AND OTHER TORTS. WITHOUT LIMITING THE FOREGOING, YOU AGREE THAT TWICESAFE’S MAXIMUM AGGREGATE LIABILITY TO YOU IN ANY CASE WHATSOEVER WILL BE THE GREATER OF: (1) THE AMOUNT OF SUBSCRIPTION FEES YOU PAID TO TWICESAFE IN THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE OF THE HARM IN QUESTION; AND (2) $100 (CAD).
12. EQUITABLE REMEDIES
You agree that TwiceSafe would be irreparably damaged if the Terms and Conditions are not specifically observed and, therefore, you agree that TwiceSafe shall be entitled, without bond, other security or proof of damages, to appropriate equitable remedies with respect to your breach of the Terms and Conditions, in addition to other remedies available to TwiceSafe under applicable law.
13. DISPUTE RESOLUTION
You and TwiceSafe agree that any informal resolution or arbitration of a Dispute will be limited between TwiceSafe and you individually. To the full extent permitted by applicable law, no arbitration will be joint with any other and you have no right or authority to: (a) arbitrate a Dispute on a class-action basis or to utilize class action procedures; and to (b) raise a Dispute in a representative capacity on behalf of the general public or any other persons.
13.3 Exceptions to Informal Resolution and Arbitration.
You and TwiceSafe agree that the following Disputes are not subject to the above provisions concerning informal Dispute resolution and arbitration: (a) Disputes concerning the enforcement, protection or validity of intellectual property rights belonging to you or TwiceSafe; (b) Disputes concerning allegations of piracy, theft or unauthorized use of the Service (including violation of the Terms and Conditions); and (c) claims for injunctive relief.
14.1 Relationship of the Parties.
Nothing in the Terms and Conditions shall be construed to create any partnership, joint venture, employer-employee or agency relationship between you and TwiceSafe.
14.2 Governing law.
The Terms and Conditions are governed by the laws of the province of British Columbia and the laws of Canada applicable therein without reference to principles of conflicts of laws and courts in Vancouver, British Columbia, will have exclusive jurisdiction to hear any proceedings related to the Terms and Conditions and to which the parties irrevocably attorn to the jurisdiction of.
To the extent any section, clause, provision or sentence or part thereof of the Terms and Conditions is determined to be illegal, invalid or unenforceable by competent authority in any jurisdiction, then that portion will be severed and the remainder of the Terms and Conditions given full force and effect.
14.4 No Waiver.
TwiceSafe’s failure to assert or enforce any right contained in the Terms and Conditions does not constitute a waiver of that right.
14.5 Entire Agreement.
Last Updated: 2016-03-12 @ 11:03 AM PST
Forensic Notes offers a customized interface for documenting Workplace Harassment incidents. Each dialog is specifically designed to elicit the correct information from the user so that each note contains the details required to help prove your case and demonstrate your credibility to your manager, human resource department, EEOC, workplace harassment lawyer or judge within a court of law.
Enter the Harasser’s Information
Identify who is harassing you.
If you do not know the Full Legal Name, enter a name you believe to be accurate. If you are able to determine the Full Legal Name in the future, you can add a new note detailing how this name was determined.
Multiple Individuals within an Organization:
In organizations where bullying and harassment is allowed and/or encouraged, numerous people may be responsible for the harassment including management. In these circumstances, you want to identify the organization as being responsible for the harassment or bullying as they are likely aware that it is occurring and not taking any steps to stop it. For every incident, you must identify the individual harassers by full legal name and how they relate to that particular incident.
If you do not know the Legal or Common Name of the organization, enter a name you believe to be accurate. If you are able to determine the Legal or Common Name of the Organization in the future, you can add a new note detailing how this name was determined.
Enter the Incident Date
When did the harassment occur?
Knowing the exact date that an incident occurred will increase your credibility when discussing the incident. It is normal to provide an approximate time due to several factors including clock settings, stress and delay in recording the incident. Try to select the most accurate time and then fully explain within your note any reasons why the time may not be exactly as indicated.
A delay in recording the incident can often result in you being unsure of when the incident occurred. At this point, it is better to enter as much information as you remember and then clearly detail why you are unable to remember the exact incident date. If you are able to determine the exact date in the future, you can add a new note detailing the exact date and how this was determined.
Not sure what to enter?
Each form has helpful dialogs that further explain what type of information you should enter to help ensure you provide the information that is required. Not sure what to enter? Just hover over the help dialog images to show additional information.
Enter Incident & Feelings
Provide fact-based details regarding the incident & information on how the harassment made you feel.
Provide as much detail as possible regarding the incident. If you decide to take legal action in the future, you will be able to read over these notes to refresh your memory. Being able to clearly articulate the incident in detail including the actions that led up to the incident and how you reacted both during and after will increase your credibility within court. Be sure to also include how the incident affected you emotionally and physically as this is often considered in criminal and civil judgments.
NOTE: To add additional information regarding this incident, you can add additional notes in the future.
Enter Witness Information
Who witnessed the harassment? Document what they observed. Document what they stated to you.
Provide as much detail as possible regarding any witnesses to the incident. If you decide to take legal action in the future, you will want to know of any potential witnesses who may be able to confirm your version of events. If possible, attempt to obtain written statements from any witnesses as they may not remember the incident in the future.
Add Attachments & Finalize
Attach witness statements, harassing emails or work performance appraisals.
Attach any documents or files which provide additional evidence. This may include witness statements, employee reviews, letters, emails or doctor notes. By scanning and uploading the documents to Forensic Notes, you are able to Timestamp the documents to clearly show that they existed at the time of Forensic Note creation.
NOTE: Be sure to always keep the original paper copy of the document if it exists.
Finalized Forensic Note
Read-only version of the Forensic Note.
When you “Finalize Forensic Note“, you set the information you have entered as read-only which means that it can no longer be changed within the Forensic Notes application (as shown). This information is then saved as a court-ready PDF document (available via “Download Forensic Note” shown above) which is Digitally Signed and Timestamped. This ensures that you can prove in court, if required, that you entered the information on a specific date and time. The final PDF is known as a Forensic Note.
Many people enquire about Workplace Bullying Lawsuits or having to work for a bullying boss, unfortunately the reality is that bullying is likely not illegal in your area. But, workplace bullying can often lead to Hostile Work Environments with many EEOC lawsuits & settlements highlighted below.
Over the years there have been some notable cases brought by employees who have been discriminated against in one way or the other and have had to endure working in hostile work environments.
Below are some notable cases:
Can victims of hostile work environments and discrimination find justice?
A federal jury awarded $200,000 in punitive damages to three former employees of AA Foundries in a racial harassment lawsuit filed by the Equal Employment Opportunity Commission (EEOC), the agency announced.
The EEOC’s lawsuit charged AA Foundries, Inc., a local San Antonio manufacturer of ferrous castings and producer of foundry mold machines, with racially harassing its African-American employees in violation of federal law.
One African-American employee testified at trial that he filed an EEOC complaint because he wanted his children to learn not to be prejudiced against others nor for others to be prejudiced against them in the workplace.
AA Foundries Superintendent, the top plant official, not only used the “N” word himself, but admitted that it did not bother him that derogatory racial slurs were commonly heard in the workplace.
The superintendent also called adult African-American male employees “mother-f—g boys,” posted racially-tinged written material in the break room, and routinely slandered them referring to them as “you people” and accusing African-Americans of always stealing and wanting welfare.
After several employees filed racial harassment charges with the EEOC, a noose was displayed at the AA Foundries workplace. In response to employee complaints about this noose, the superintendent described such reports as “BS” and stated the noose “was no big deal” and that “you people are too sensitive.”
This type of conduct constitutes a hostile work environment, a form of race-based discrimination prohibited by Title VII of the Civil Rights Act of 1964.
The EEOC filed suit (Civil Action Number 5:11-cv-792, filed in U.S. District Court for the Western District of Texas, San Antonio Division) after first attempting to reach a voluntary settlement.
What is the EEOC?
The Equal Employment Opportunity Commission (EEOC) is a Federal agency in the United States which enforces employment laws.
View our detailed article on how to submit issues to the EEOC and how the EEOC can help you.
2. Race Discrimination Settlement : Eclipse Advantage Lawsuit
Eclipse Advantage Sued by EEOC for Racially Hostile Work Environment and Retaliation
The U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit…that Eclipse Advantage, Inc., violated federal law by subjecting an African-American employee to racial discrimination and retaliation at its Aldi Food Service warehouse in Hinckley, Ohio.
The EEOC charged that Rodney Williams began working in a supervisory position with the company in August 2009, and shortly thereafter was subjected to racial epithets from his superiors and was demoted complaining about a racially hostile work environment.
Such alleged conduct violates Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on national origin, race, color, sex (including sexual harassment or pregnancy) or religion and protects employees who complain about or oppose such discrimination from retaliation.
The EEOC filed suit after first attempting to reach a pre-litigation settlement. The EEOC seeks to eliminate these discriminatory practices and have Eclipse Advantage compensate Williams for his losses and provide equal opportunities to black employees.
7 Documents to Show Your Lawyer
If you’ve been harassed, discriminated against or wrongfully terminated from your job, chances are, you’re considering filing a lawsuit or at least exploring what options are available to you.
But where do you start? Documentation will be key. Read our article on the 7 documents you should may require.
3. Hostile Work Environment Settlement : Seattle City Light workers win bias lawsuit
In this case, a jury found that two employees of Seattle City Light, a Vietnamese-American and an African-American, had been discriminated against and faced a hostile work environment because of their races. The jury awarded them more than $1.4 million.
Phi Trinh, a hydroelectric-power supervisor, was discriminated against in the promotion process and the jury awarded him $947,290 for emotional harm and lost wages.
The jury also concluded that Mattie Bailey, a black communications manager, also endured workplace hostility because of her race and was not paid equitably for her work. Bailey was awarded $503,195.
Disclosure: We’ve read the book and found it be a helpful resource. If you make a purchase via this link, we may receive a small commission.
4. Disability Discrimination Settlement : Benny Boyd Car Dealership to Pay $250,000 to Former Manager in EEOC Settlement
Benny Boyd Ltd. was forced to pay $250,000 in damages and back pay to former manager Randall Hurst to settle a federal disability discrimination suit, the U.S. Equal Employment Opportunity Commission (EEOC) announced today.
The EEOC had charged the automobile dealership with disability discrimination law by denying a partnership to Hurst because of his multiple sclerosis, subjecting him to a hostile work environment and forcing him to quit as a result.
According to the EEOC’s suit, Hurst was wooed away from a lucrative job at another dealership by Benny Boyd to be the General Manager of its Lubbock location.
The EEOC alleged that the compensation package offered Hurst included a promise of partnership. After successfully operating the dealership for several months, Hurst was diagnosed with multiple sclerosis, and his medical condition was disclosed to the company’s top management staff. Thereafter, the EEOC contended, the company failed to honor its promise of extending a partnership to Hurst, and he was told that the reason was his MS.
The EEOC also alleged that Hurst’s supervisor subjected him to demeaning comments about his diagnosis, including asking him, “What’s wrong with you? Are you a cripple?” and telling him, “You are on your last quarter, buddy, since you have MS.”
The company failed to take any remedial action to stop the unwelcome behavior, the EEOC alleged.
As a result of the continuing harassment based on his disability and the substantial loss of compensation due to the denial of partnership, the EEOC contended that Hurst was forced to resign in November 2012.
The EEOC filed suit after investigating the case, finding reasonable cause to believe that the alleged discrimination took place, and then attempting to reach a pre-litigation settlement through its conciliation process.
5. Hostile Work Environment Settlement : Swissôtel Employment Services L.L.C. and Swissôtel Chicago, Inc.
In this case, the EEOC alleged that charging party, who worked as a steward cleaning floors and washing dishes, was subjected to a hostile work environment due to his mental impairment.
His supervisor called him a “retard,” swore at him, and threatened to have him fired. He also scheduled the charging party to back-to-back shifts something that was not required of other employees.
Despite repeated complaints to human resources department, the Defendant failed to take corrective action. The Defendant ultimately terminated the charging party in retaliation for having complained of discrimination.
The case was settled for $90,000 in monetary damages and injunctive relief.
6. Disability Discrimination Settlement : Luby’s, Inc.
In this case, the Commission alleged that charging party, a floor attendant with an intellectual disability, was subjected to a hostile work environment because of her disability.
Defendant, restaurant chain, had accommodated charging party by providing a job coach for her but when a new manager took over, he refused to repeat instructions, berated her, told her to “shut up” when she asked about her job duties, and got impatient and angry with her for working and speaking slowly.
The new manager also permitted coworkers to mimic her speech, tease her about stuttering, bark at her, and threaten to hurt her with a bread slicer. Despite repeated complaints, no action was taken.
Charging party was further retaliated against and ultimately was forced to resign, i.e. constructively discharged.
Case settled for $90,000 in monetary damages and injunctive relief as well as attorney’s fees in amount of $60,000 to the Arizona Center for Disability Law, which represented her in intervening in EEOC’s suit.
7. Hostile Work Environment Settlement : Compensatory Damages Awarded To Seven Complainants Subjected To Hostile Work Environment
The complainants in this case filed an EEO complaint as a group, alleging, among other things, that the US Postal Service subjected them to a hostile work environment on the basis of sex.
Following a hearing, it was found that the Agency, ie the US Postal Service, was liable for the harassment because it did not respond to the situation. The Commission found that Complainants’ emotional and physical harm were the result of suffering years of harassment by a male coworker.
The record established that all of the Complainants were diagnosed with post traumatic stress disorder because of the harassment, and many had evidence of severe emotional and physical harm.
The Commission conducted a detailed analysis of each Complainant’s damages directly attributable to the harassment.
After taking into consideration the nature of the discriminatory acts, the severity of the physical and emotional harm suffered, and the many years the Complainants suffered the harm (sometimes seven years or more), the Commission awarded each Complainant between $45,000 and $75,000 in non-pecuniary compensatory damages.Leggett et. al. v. U.S. Postal Serv., EEOC Appeal Nos. 0720110039, et al., (July 12, 2012).
8. Hostile Work Environment Settlement : $50,000 Awarded for Sex-Based Harassment
In this case, the complainant was subjected to hostile work environment harassment because of her sex.
The complainant indicated that the hostile work environment affected her health and caused her a great deal of stress, as well as headaches, and an upset stomach.
She had trouble sleeping and concentrating, and experienced depression and anxiety.
The complainant stated that the stress negatively affected her relationship with her husband and son.
The complainant stated that she called in sick once or twice a month because she did not want to be at work because of the hostile environment.
The record also showed that the complainant was off work for approximately three months due to the stress of the harassing events.
The Department of the Army, which was her employer did not specifically dispute any of the testimony pertaining to the pain and suffering the complainant experienced.
Therefore, the EEOC concluded that the complainant was entitled to an award of $50,000 in compensatory damages.Bradstreet v. Dep’t of the Army, EEOC Appeal No. 0120112517 (June 27, 2012).
Six Must Do’s Before You File a Workplace Bullying Grievance with HR, In Addition to Documenting It
MA, SPHR, SHRM-SCP
Forensic Notes is excited to provide you the following informative article by workplace bullying expert Catherine Mattice.
Catherine understands the problems targets of bullying face because she lived the same horrible experiences. Since that experience, she has dedicated her life to helping others in similar situations.
Catherine started Civility Partners, which now works with some of the largest firms in America. Civility Partners assists organization to help “them in building systemic action plans to end workplace bullying and replace it with a positive workplace culture”.
Catherine is truly one of the leaders in this field.
Please be sure to share this article on Social media to help others that are thinking about filing a grievance.
In preparing to report your situation with workplace bullying to managers or HR, it is important to first gather your thoughts. The more you are able to stay in control, and be clear and helpful, the more things will pan out in your favor. Below are six must-dos before you file a grievance.
#1: Seek confirmation that you are a good employee and high-performer.
If the bully hasn’t already called your performance into question through performance evaluations, he or she will once they find out you’ve talked to management. For this reason, collect data that supports that you are a high-performer. Talk to other employees you work with, perhaps a former supervisor in a different department, or even a few customers if you can ensure that others believe you are a strong performer and will tell your manager.
#2: Address poor performance evaluations.
The previous tip leads to an important suggestion for dealing with a manager who is a workplace bully. If the bully is your manager, and he or she did use a performance evaluation to bully you, it is important that you take certain steps in order to address this issue with your manager first before filing a grievance with the higher-ups.
Effective performance evaluations are positive and ongoing, provide constructive feedback, and offer specific goals for you to complete. If your performance evaluation doesn’t do that, try to meet with your manager to see if you can get more information. If the bullying manager won’t work with or coach you, then, when you file your grievance, you can share with HR that you really tried to work with this bullying manager by getting more information about what to do differently.
#3: Determine costs to the organization.
Management and HR speak the language of business: money. The saying “money talks” is no BS.
Therefore, presenting your case in factual, tangible terms will be to your benefit. Open up an excel sheet and start trying to figure out how much the bullying is costing the organization.
#4: Attempt to resolve the issue yourself.
Many experts will tell you that this is a bad move—that standing up for yourself will only make the bullying worse. In fact, research does seem to indicate that bullying gets worse when targets attempt to stand up for themselves. Bullies like it when you don’t stand up for yourself; it makes it easier on them if you don’t.
However, from a manager’s viewpoint—and if you are going to be successful in making a complaint—a target who has taken steps to resolve their own relational issues is more powerful and taken more seriously than one who has not.
#5: Get prepared for the conversation.
It is really important that you go into the conversation with pre-determined goals and outcomes. If you go in with specific action items in mind, you will be seen as an individual working toward making the workplace better. Spend some time deciding what the purpose of your talk is, and develop tangible, real goals that you are seeking. Ask yourself exactly what you want to accomplish with your complaint, and what you need to have happen in order to feel satisfied you were heard. What solutions can you offer to the HR manager?
In addition, get prepared to discuss the behaviors, not your feelings. You need this manager or HR representative to advocate for you, and the more you remain a reporter of facts instead of a target of someone’s bad behavior, the greater the likelihood that you will succeed.
There is a possibility your manager will not believe you when you tell him or her you are being bullied, so it’s important to self-reflect and get clarity on a few things before you decide to set up that meeting. Do a little soul searching and ask yourself whether you’re willing to go forth without the law on your side, since bullying is legal in most places. Think about what you’ll do if you aren’t heard – what’s your next step?
This article is an excerpt from the book BACK OFF! Your KickAss Guide to Ending Bullying at Work by EG Sebastian and Catherine Mattice, and was submitted by Catherine Mattice. Catherine Mattice is an HR Consultant who works with clients to end bullying by creating positive work environments. Her firm, Civility Partners, has worked with Fortune 500’s down to small businesses, and everything in between.
If you are facing harassment at work, you need to take steps to help you deal with the situation. By being proactive, you can safeguard your rights to work in a healthy and conducive environment, or if that does not happen, to receive proper redress for the harm you suffered because of the harassment.
The tips below will help you tremendously, now and later down the line if you decide to exercise your right to file a harassment or discrimination case.
In 2014, about $94 million was paid out as compensation to victims of workplace harassment filed through the EEOC, with awards in the cases ranging from $15,000 to $14.5 million.
Definition: What is Workplace Harassment?
A Workplace Harassment definition encompasses a wide range of unwelcome conduct that a reasonable person ought to know are unwelcome.
Such behaviors are unlawful when an employee has to endure offensive conduct that becomes a condition of continued employment or the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider hostile, intimidating or abusive.
Usually the employee who feels that he or she is being harassed would have made it clear that such behavior is unwelcome and inappropriate and asks that it be discontinued. Workplace harassment could be physical or psychological.
Stop Workplace Harassment with Forensic Notes
Workplace harassment is an all-too-common phenomenon in today’s workplaces which can lead to physical and mental health issues such as anxiety, depression and panic attacks among those who are victims of it.
While it is frequently of a sexual nature, workplace harassment also takes other forms and may involve violence, bullying or other abusive, threatening or demeaning behavior.
Unfortunately, it is not often reported, meaning the victims suffer in silence, unable to access any remedy which may be available. Yet the fact remains that remedies are available for victims of harassment in the workplace, with recent data showing that such remedies can include significant financial compensation for the victim.
With adequate evidence, such as those which Forensic Notes empowers victims to assemble, a victim of workplace harassment can confidently fight against harassment and potentially receive compensation that could be in the hundreds of thousands of dollars.
Have you been Affected by Workplace Harassment?
Chances are, you have been or will be at some point in your career. According to the The Equal Employment Opportunity Commission, (EEOC) the agency that enforces employment laws, fully 30% of all charges brought before it relate to workplace harassment. That statistic ties in with the results of this survey by the Workplace Bullying Institute which showed that an estimated 37% of workers, or about 54 million people, have been bullied at the office, or repeatedly mistreated in a health-harming way.
Think about that for a moment: for every three workers out there in the workplace, at least one is suffering some form of harassment in the course of doing his or her job. It’s even more mind boggling when you consider that the 30% figure cited by the EEOC relates to instances of workplace harassment that are reported.
So in all probability, EEOC Statistics do not adequately reflect the pervasiveness of the issue.
As with most other forms of abuse, cases of harassment in the workplace are under-reported because people fear losing their jobs or compromising their careers if they speak out.
Others worry about being seen as “that guy” – the one who destroyed the collegial, let’s-all-be-friends atmosphere in the office. Some simply do not report harassment because they do not know that those negative behaviors they suffer at the hands of a co-worker amount to harassment. And sometimes, those who want to speak out worry that they will not be believed.
So, what is Workplace Harassment?
Harassment in the workplace is hardly ever clear cut. It takes many different forms and can be overt or disguised, and identifying it or labeling it as harassment can be tricky.
Take the case of 55 year old Anna. She’s sitting at her desk when an email comes in from Craig in Accounts. She opens it and finds a list of “Yo mama’s so old” jokes.
Is Craig’s email harassment? No. Crass and tasteless, yes, but the email in and of itself is not harassment.
However, this is not the only email from Craig. In fact, it’s only the latest in a long list of emails, text messages and disparaging comments from Craig about Anna’s age.
He never misses an opportunity to “compliment” her dressing (“nice skirt you’re wearing today Anna. I bet it was hot back in the 30s”) and he has recently taken to referring to all long-standing projects as “Anna-type” projects.
He refuses to allow Anna on any project team he is leading because “we don’t need outdated ideas,” and pressures other colleagues to do the same.
So is Craig’s latest email harassment? Absolutely! What takes it from a mildly offensive or inappropriate email to an act of harassment is the fact that it is part of a repeated and persistent behavior towards Anna that is intended to humiliate, torment, undermine and frustrate her.
His behavior embarrasses Anna and makes her anxious, frightened and feeling awkward around other co-workers.
… the fact that it is part of a repeated and persistent behavior towards Anna that is intended to humiliate, torment, undermine and frustrate her.
One of the key elements of workplace harassment is that the action or event that constitutes harassment has to be repeated. One act or event does not constitute harassment.
What this means for a person being harassed is that he or she needs to keep track of all instances of harassment in order to prove later down the line, that the offensive actions were, in fact, harassment rather than harmless teasing or attempt at humor. There’s more on this below.
The repeated actions that constitute harassment may take different forms, such as making comments that are rude, offensive or degrading; threatening or intimidating behavior or action; retaliation for reporting something; sending or displaying pictures or emails that are sexist, racist or denigrating of religious beliefs; unwanted touching, flirting or invitations with sexual overtones, disparaging remarks about dressing, etc.
How big an issue is Workplace Harassment?
The reality is that harassment occurs every day in workplaces across America. The EEOC describes this as “an unacceptable reality,” but it is a reality nonetheless.
Consider this: In 2014 alone, over 26, 000 cases of workplace harassment were filed with the EEOC. That’s an average of 72 cases a day. But again, we’re only talking about reported cases.
According to this ABC News/Washington Post poll on sexual harassment for instance, nearly 65% of all people who had experienced sexual harassment at work did not report it.
With various studies suggesting that less than half of all cases of harassment are reported, it is obvious that workplace harassment is a big problem indeed.
Also big is the amount of financial compensation that victims can receive. In 2014, about $94 million was paid out as compensation to victims of workplace harassment filed through the EEOC, with awards in the cases ranging from $15,000 to $14.5 million.
Records show that average EEOC settlement amounts can be quite substantial.
While the payouts from cases settled out of court are difficult to obtain due to confidentiality agreements, one studyfound that when employees choose to litigate and they win, the payout averages $217,000.
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How can Workplace Harassment be stopped?
What can you do if you’ve been Harassed at work?
The unfortunate truth is that sometimes harassment cannot be stopped at all, as the perpetrator persists with their behavior and the company is either unable or unwilling to take proper action due to the position of the perpetrator in the company.
But you don’t have to resign yourself to the idea that your only choices are either to quit or to put up with the harassment. There are things you can do about it.
If you are being harassed at work, here are some important steps to take:
1. Talk to the Harasser
Express your discomfort with the behavior or comments and ask them to stop it.
2. Bring the Harassment to the Attention of your Employer
If your employer has a complaint procedure (which it should) use it to report the harassment to the appropriate parties within your company.
In fact, if you do not use your employer’s complaint process before going to court, you may not recover damages if you win.
3. Seek a Resolution
Submit to arbitration or other process that your company offers to resolve the problem.
Unfortunately this is often the only way to stop harassment within hostile work environments where management does not take the issue seriously.
Always be prepared by documenting all interactions with the company from the very beginning.
What if it doesn’t stop?
Do I have any Legal Recourse?
If your complaint is not handled to your satisfaction, or the harassment continues, you could bring a lawsuit against the co-worker or even the company for condoning the harassment.
Prior to bringing a lawsuit, you need to file an administrative charge with the EEOC or a similar state agency. This is a legal requirement.
If you file a lawsuit without first having filed an administrative charge, your lawsuit will be thrown out.
After considering your case, the EEOC or other agency can dismiss your charge, investigate, request that you and your employer try to settle or mediate the dispute, or take other action.
After processing your claim the agency may issue you a right to sue letter, which will then enable you to file a lawsuit.
Although bringing an EEOC suit or complaint is something you could easily do yourself, you may want to seek the assistance of a employment lawyer to guide you through how to write an EEOC complaint.
Can I Sue for Workplace Harassment?
Employees can sue for Workplace Harassment, hostile work environment or discrimination.
If an employer is made aware of the Workplace Harassment and doesn’t take the initiative to fix the problem, then the employer can be held liable. However, if the employer is not engaging in the alleged activity or isn’t made aware of the situation, the employer will most likely not be held responsible for this form of harassment.
This is especially true if the employer has a program or process in place that allows employees to submit grievances and the employee doesn’t take advantage of the program or process.
If the employer takes steps to correct the harassment but it continues, you could bring a lawsuit against the co-worker.
To be successful in their claim, employees should keep detailed records of any instances of workplace harassment to serve as proof.
Whichever route you take, the most important thing is to record, record, record! Keep a written record of all incidents of harassment including what exactly happened, date, time, and the names of people that might have witnessed the incidents.
This is the single most beneficial thing you can do for yourself when it comes time to proving your case. But it is not enough simply to jot down a few notes or approach it as something casual where you document some of the more serious instances, but not all.
What you need is formal record-keeping that will stand up to scrutiny whether before your company-led arbitration, before the EEOC or other agency or in a court of law.
Keep a written record of all incidents of harassment including what exactly happened, date, time, and the names of people that might have witnessed the incidents.
Why is Forensic Notes the best way to record Workplace Harassment information?
The burden of proof in harassment cases is a heavy one. To have any chance of success, accurate record keeping is absolutely vital.
The following reasons are why you need to have a detailed and accurate record of dates, situations and descriptions of the incidents:
Document all Facts of your Claim
Harassment claims are very fact-specific, and it is the facts that will make or break your case. In the absence of solid documentary evidence, such cases often come down to “he said, she said,” especially if there were no witnesses to the incidents or witnesses who are willing to testify, so the victim stands the risk of having their case dismissed for lack of evidence.
Witnesses Not Always Reliable
Even where there are witnesses to the harassment, the victim may find that by the time their case gets to court, those witnesses have left the company.
Data is Volatile
Many companies have automatic email deletion. After a few months, a victim may find that he or she is unable to recover incriminating emails that were sent or deleted, and there’s simply no record of them.
Contemporaneous Notes are Highly Valued
Courts put far more weight on contemporaneous documents concerning harassment such as diary entries, emails, faxes, letters, notes etc.
Any notes drafted long after the relevant event has occurred or after a lawsuit has been filed is considered memory based and far less reliable than notes that were taken at the time of the incident.
Even where notes exist, but such notes exist in an electronic format, their authenticity is open to attack in court if there is no way of proving beyond reasonable doubt when they were created and that they have not been altered.
All these factors and more, make Forensic Notes an indispensable tool for establishing a strong and credible case when a person has been a victim of harassment.
Forensic Notes enables you to make and store contemporaneous notes of incidents of harassment, which are timestamped by a Trusted Timestamping Authority (TSA) similar to those used by banks to authenticate transactions. Once created, the notes cannot be changed, although they can be added to by creating additional timestamped notes.
Forensic Notes is Customized for Workplace Harassment Incidents
Forensic Notes has been designed to capture the information your require to create detailed and accurate notes that are court-ready regarding your Workplace Harassment incidents. This includes:
1. Hostile Work Environments
2. Gender Discrimination
4. Sexual Harassment
5. Wrongful Termination
Once you sign up for a ‘Workplace Harassment’ account, you will be guided through the note entry process to quickly and easily create notes that can be used for internal HR discussions, EEOC or court proceedings.
With Forensic Notes, you can store emails, text messages, records of your complaint to Human Resources or other documentation.
Forensic Notes replicate bound and numbered paper notebooks used in business, legal and law enforcement situations. Because it is an impartial, third party platform, Forensic Notes guarantees the authenticity and demonstrates the contemporaneousness of any written material that is likely to be submitted as evidence in court, arbitration or other forums.
How does Forensic Notes work?
With Forensic Notes, users get an industry leading security system that protects the integrity of all information stored in it. It is easy and straightforward to use. Simply sign up for an account.
Your account is protected using multiple layers of encryption and multi-factor authentication. (See Security & Data Encryption page for details)
Once signed up, you can create Forensic Notebooks which include ALL Forensic Notes that have been entered into that notebook, and you can categorize them in any way you want.
For example you may have a Notebook called “Workplace Issues” to store notes, emails, witness statements, etc regarding your workplace harassment incidents.
Within this Notebook, it would also be good to include your diary notes about how you feel as a result of those incidents. This allows you to keep everything together in one notebook which can then be presented as a Forensic Notebook in court if required.
This would show a clear timeline of your thoughts and feelings as a result of the incidents that occurred. Forensic Notes allows you to create multiple notebooks which you can use for other purposes too.
Once saved, your notes and any attachments become read-only and a Digitally Signed PDF of your Notes and attachments is created.
This protects the integrity of the documents as they cannot be tampered with. A Timestamp of the Digitally Signed PDF is created using an Trusted Timestamping Authority (TSA) and saved with the original note and attachments.
The timestamped document is now known as a Forensic Note.
Forensic Notes and Forensic Notebooks can be printed at any time, including for court or arbitration purposes.
You may then present them as evidence in your case, with irrefutable proof that the notes (and attachments) were entered on the date recorded within the Digital Timestamp.
If I am being harassed at work, what kind of compensation do I deserve?
It depends. If you are successful in your harassment claim, the amount you can get in financial compensation depends on what sort of harm you’ve suffered because of the harassment.
Harm could be financial, such as if you’re denied a promotion that would have earned you more money, or you’re forced to leave your job because you could not take the harassment anymore.
For that kind of harm, you may get damages which include back pay and front pay, to compensate you for wages that you lost.
You may also suffer emotional harm, like the case of Anna above who is left feeling anxious, frustrated and fearful.
For this kind of harm, you may get damages for pain and suffering. In addition, you could get punitive damages which are intended to punish your employer for condoning or failing to put a stop to the harassment.
Ultimately, what you can get in dollar sum depends on the facts of your case, but as the figures previously mentioned show, compensation can potentially be in the hundreds of thousands of dollars or even more.
Average EEOC settlement amounts are also quite substantial.
For you to get any compensation however, you first need to report the harassment. And if you’ve read up to this point, you probably realize by now that reporting harassment means much more than simply going to your supervisor and saying “A is harassing me.”
You need proof. Solid, credible proof that is contemporaneous to the instances of harassment.
Forensic Notes’ document-authentication and storage system helps you cross that hurdle by giving your documents the credibility and authenticity they need, so that you can take the first step towards getting the compensation you deserve.
Give yourself a fighting chance – start recording today to ensure you have the right kind of evidence to prove your case.
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Proving Workplace Harassment
Being the victim of harassment at work can be pretty traumatic, but you don’t have to suffer in silence. You can take a stand against the harassment by reporting it.
Frequently though, harassment does not end with simply reporting it. The problem may drag on for a while and you may even end up in court.
Whether or not you do end up in court, here are three key elements you need to be able to show in order to have a case:
3 Key Elements to Having a Legal Case
1. You Did Not Initiate the Harassment
Part of what you need to prove is that you had nothing to do with the harassment. That is, you did not initiate or welcome it. From a legal perspective, an employee complaining of harassment must prove that the behavior was unwelcome and that they did not participate in it willingly.
Oftentimes, the harasser’s defense is that it was a joke and the complainant went along with it. If you have text messages, documents, emails, or communication in other format that can back up your case, keep them.
2. The Harassment Offended You
The behavior in question should be something you find offensive. What is offensive is easy to determine in some cases, but difficult in others.
A verbal abuse for instance, can be reasonably presumed to be offensive, but what if it was a “joke”?
Nobody can decide for you what you must find funny, so a joke could easily be offensive. However, that is not to say you should take offence at everything. Which is why you should try to clarify things with the offender by letting them know you do not welcome the behavior or language.
That way, if it was an errant joke, they have a chance to stop it. If it continues after having made your feelings known, then you can put that down to deliberate attempts to offend you.
3. The Harassment Affected you Negatively
Thirdly, you have to prove that the harassment affected you, either physically or mentally and in terms of your work performance.
If your health, mental state and work performance took a turn for the worse, you can get your medical and mental health records as well as previous performance reviews to show the impact of the harassment on you.
3 Key Steps to Proving Workplace Harassment
Proving workplace harassment can be difficult because, more often than not, it is your word against the harasser’s. But that does not mean that you should or cannot do something about it.
Here are three steps you can take if you’re being harassed at work:
1. Record and Document
Record all instances of harassment, even when they are implied as “jokes”. Harassment comes in various forms of course, so make sure you note down the different ways your harasser is targeting you, whether it be threats or promises of promotion in exchange for sexual favors.
Note down the date, place and time.
Don’t worry if there are no witnesses. Harassers usually wait for opportunities to catch you alone, so it’s possible there won’t be any witnesses.
2. Do NOT Delete Text Messages, Emails or Chats
You may receive text messages, emails, Facebook posts and even hand written notes or cards.
Don’t just keep them, take photos and make digital copies and store them online in case you lose your phone or it crashes.
When all hell breaks loose, you need them to prove that the harassment has been going on for some time.
3. Don’t store Evidence on your Office Computer or in your Desk
Duh! The first thing you lose access to if you get fired is the office computer, and you only have a few minutes to clear out your desk. And don’t even kid yourself that you can’t get fired.
What’s retaliation? Well, let’s just say your complaints about harassment could make someone at your office very mad and they either decide to make your life miserable or just outright send you packing. That’s retaliation.
Even if you don’t get fired, what’s to prevent someone from rifling through your desk and taking your notes, or even deleting your stuff from the company server?
So to protect yourself and prove your harassment in court, make sure your notes and documents are stored in a safe, neutral place and in a manner that makes them admissible in court. Here’s a pretty nifty tool that helps you do just that.
Dealing with any form of harassment can be traumatic, but you can stay one step ahead by following these three simple steps.
Defining workplace sexual harassment in theory might seem straightforward, but in reality it is a grey area that can be quite subjective. This can make accusations and the handling of sexual harassment allegations challenging to say the least. In addition, all parties to the allegations of sexual harassment deserve due process, and balancing this can be quite tricky. The alleged perpetrator deserves to be seen as innocent until proven guilty, while the rights of the alleged victim to seek recourse also needs to be respected, while ensuring that the allegation does not impede their career aspirations. This minefield of complexity makes many victims to remain quiet and some companies simply bury their heads in the sand and pretend nothing is happening.
The Equal Pay Act requires that males and females in the same workplace receive equal pay for equal work.
The Equal Employment Opportunity Commission (EEOC) defines sexual harassment as “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature.” No one should have to deal with adhering to a request of this nature in order to maintain their employment status.
If you are the victim of sexual harassment in the workplace, there are some steps you can follow to ensure the matter is addressed. Each of these steps is important on its own, but to get the most value out of taking these steps, make sure that you are keeping a detailed record and documenting everything that transpires. Don’t only rely on the notes that your company is taking. Your own personal records will be invaluable evidence for you.
Definition: What is Workplace Sexual Harassment?
Workplace sexual harassment refers to harassment of a sexual nature, which is based on gender or physical attractiveness or un-attractiveness of a person, and consists of unwelcome sexual advances, propositions for sexual favors and any other verbal or physical conduct of a sexual nature.
There are two types of sexual harassment recognized under Federal law in the US: quid pro quo and hostile work environment (the equivalent terms “sexual coercion” or “sexual annoyance” are also used in Canada).
Sexual Coercion Definition (Canada) /
Quid Pro Quo Definition (United States)
Quid pro quo or sexual coercion refers to instances where job benefits such as promotions, pay and performance appraisals are conditioned upon the employee providing sexual favors. Instances of quid pro quo sexual harassment include when a manager or person of authority threatens to terminate an employee who does not submit to sexual advances or where the manager or person of authority makes promises to promote an employee in exchange for sexual favors.
Sexual Annoyance Definition (Canada) /
Hostile Work Environment Definition (United States)
Hostile work environment or sexual annoyance refers to situations where an employee’s work environment is made hostile, intimidating or offensive due to the unwelcome sexual conduct and the conduct unfairly interferes with the employee’s work performance. Some examples include making offensive and/or suggestive sexual comments or jokes, conversations about sex and displaying or sexually oriented materials.
7 Steps in Dealing with Workplace Sexual Harassment
1. Talk to the Person Directly
Once the first incident of sexual harassment occurs, be very clear in letting the person know the behavior is unwelcome and ask them to stop. If the behavior continues after that, tell them that you plan to file a report with Human Resources. Sometimes a person can actually be oblivious to the fact that their behavior is offensive and unwanted. Therefore, that initial chance to clean up their act is a nice gesture that could potentially clear up the matter.
2. Alert Your Manager or Supervisor
If the behavior does continue after that initial conversation, report the incident officially to your immediate supervisor. He or she will likely ask you to follow up your verbal explanation with a written report describing the event in as much detail as possible. It is possible that your immediate manager is the harasser or if he or she refuses to take action, alert the next person in your reporting line. Whoever you report to should handle your complaint with discretion and confidentiality. If there is any evidence related to your grievance, be sure to present that at the time of your formal complaint.
3. Alert Human Resource Management
If your employer has a complaint procedure (which it should), follow the steps set out under the procedure for bringing the harassment to the appropriate parties within your company. Certainly bring it to the attention of your HR department as they would be best equipped to inform you of next steps or any actions to take in the meantime. Note that everything needs to be in writing. You want documentary proof that you can later refer to. Your HR department will also take their own notes, but make sure you take yours too.
4. Submit to Company Resolution Process
Submit to arbitration or other process that your company offers to resolve the problem. Take part in the fact finding steps or meeting initiated or requested by your HR department. Don’t just make a complaint and then refuse to cooperate with efforts being made to resolve the matter. Provide all the necessary details requested and provide any evidence that you may have.
5. Approach the EEOC
Some companies have been known to really drop the ball when it comes to sexual harassment allegations. If your complaint is not handled to your satisfaction, or the harassment continues, it is well within your right to contact the Equal Employment Opportunity Commission to file a case. It is their job to investigate and address issues of discrimination and harassment in the workplace. Once things escalate to this point, it is probably in your best interest to hire an attorney. Depending on the facts of your case, the EEOC may after investigation, decide to dismiss your charge, investigate, request that you and your employer try to settle or mediate the dispute, or take other action. The evidence you provide is what the EEOC can work with, so obviously the better the quality of the evidence you have the better your case. As previously alluded to, such evidence will include all the notes you’ve been taking throughout the process.
6. File a Lawsuit
Depending on the severity of the incident, filing a lawsuit may be the next step. After processing your claim the EEOC may issue you a right to sue letter, which will then enable you to file a lawsuit. Be sure to have your ducks in a row after consulting the EEOC. There is a chance that monetary damages can be awarded if you were let go due to the incident. For you to get any compensation, however, you need to be sure that you have credible evidence that is contemporaneous to the instances of harassment, your reporting it to your manager and all the other steps you’ve taken.
7. Keep Track – Document Everything!
As alluded to above, the right documentation is critical to ensuring that you get justice if you have been a victim of sexual harassment. It is not enough simply to document, it is also very important to make sure that you store and present your evidence in a way that guarantees their authenticity. Otherwise, you could be accused of fabricating evidence after the fact. Forensic Notes’ document storage and verification system protects the integrity of all your documents and other evidence stored on it, thus giving your documents the credibility and authenticity they need, so that they can be accepted as evidence, whether it’s by the EEOC or in court.
How to Prove Workplace Sexual Harassment – 7 Steps
For legal reasons, if you plan to prove workplace sexual harassment, you should follow these seven steps to clearly show that you objected to the unwanted gestures, comments or physical contact. If these steps are not followed, then proving that you were not a willing recipient will be more difficult.
1. Talk to the Person Directly
2. Alert Your Manager or Supervisor
3. Alert Human Resource Management
4. Submit to Company Resolution Process
5. Approach the EEOC
6. File a Lawsuit
7. Keep Track – Document Everything!
Can I Sue for Workplace Sexual Harassment?
Employees can sue for sexual harassment in the workplace if an employer is made aware of the work environment and doesn’t take the initiative to fix the problem. If this is the case, the employer can be held liable for the workplace sexual harassment. However, if the employer is not engaging in the alleged activity or isn’t made aware of the situation, the employer will most likely not be held responsible. This is especially true if the employer has a program or process in place that allows employees to submit grievances and the employee doesn’t take advantage of the program or process. To be successful in their claim of sexual harassment, employees should keep detailed records of any instances of sexual harassment to serve as proof and follow human resource guidelines if available.
When Considering a Workplace Harassment Or Wrongful Termination Lawsuit
If you’ve been harassed, discriminated against or wrongfully terminated from your job, chances are, you’re considering filing a lawsuit or at least exploring what options are open to you for redress.
If you’re considering filing a lawsuit, you should be able to provide your attorney with some ammunition to fight your claim and effectively handle your case.
Redress: “Remedy or compensation for a wrong or grievance”
When it comes to wrongful termination, it is important to bear in mind that most employees are presumed to work “at will”, meaning they can quit anytime and they can be let go at any time, for any reason that’s not illegal.
So, for instance, an employee who is terminated for unsatisfactory performance, poor attendance or misconduct—or even just not being the proper fit for the job—typically won’t have any recourse against their former employers.
However, there are some exceptions to the at-will rule. Even at-will employees are protected by law and cannot be terminated for illegal reasons such as discrimination, retaliation for reporting wrongdoing or harassment or because they exercised a legal right.
Under these circumstances, an employee may have grounds for a lawsuit and should consider contacting an employment law attorney.
What is the EEOC?
The Equal Employment Opportunity Commission (EEOC) is a Federal agency in the United States which enforces employment laws.
View our detailed article on how to submit issues to the EEOC and how the EEOC can help you.
If the circumstances of termination suggest that it might have been illegal, you can consult with a lawyer who will go over the facts and assess whether there is potential for legal claims.
If there are solid grounds to file a claim, a lawyer can help with the process of asserting your rights.
It’s particularly important to consider legal consultation if you are asked to sign a waiver or release of claims, in which you forfeit all your right to sue an employer.
Often, employers require employees to sign this sort of agreement as a condition of getting severance.
Once an employee signs a release, it’s very difficult to unbind—even if an employee has later discovered that they could have valuable legal claims against their employer.
Employees need to take heed when signing any employment contract because it’s important to know what claims they are giving up and what they could be worth.
Filing a Harassment, Discrimination or Wrongful Termination Claim
Once you’ve decided that you want to seek legal redress, you need to go about putting your case together. Your first step in seeking redress has to start with the EEOC. Other articles on our website provide more information on what this entails. In summary you need to:
– Identify the basis of your wrongful termination lawsuit
– Compile evidence that will be used in your claim such as:
- Important documents such as pay stubs and records of hiring and termination
- Statements and testimonies from the party(ies) who are responsible for your termination
- Witness accounts
- Your sworn written statement about the events that were involved in the termination
When you first meet with your lawyer, he or she will ask you a lot of questions to help him or her understand what transpired at your workplace which have led you to consider filing a lawsuit. In addition to talking to your lawyer about your claim, he or she will be interested in seeing documents relating to your claim, some of which have been alluded to above. Some of these documents may be in your possession while others may be in the possession of your employer or other third party. Regardless, it would greatly help your case to be able to provide the following documents to your lawyer:
1. Your personnel file
This is an important source of information for your lawyer that will help him or her to construct a background of your history with the company.
Your personnel file will have details of your hiring and termination, performance evaluations, promotions, previous disciplinary actions that have been taken against you, if any.
If you do not have a copy of your personnel file, your lawyer can obtain it from your employer on your behalf.
2. Company policies
Employers often adopt company policies which proclaim standards of acceptable behavior within the company.
These policies usually include anti-discrimination or anti-harassment standards and are usually handed out as handbooks to employees, or posted in common areas.
If your employer has such handbooks and policies, be sure to store a copy when it is handed to you and provide this to your lawyer. Your lawyer would be interested in reading them to determine if your employer followed its own policies.
If it did not, then your case may be strengthened.
3. Pay records
If the harassment or discrimination you experienced caused you to lose time from work, and thus lose income, you should provide your attorney with copies of your pay records.
Your lawyer can use your pay record to quantify the impact of the discrimination or harassment on you, by showing the difference between your earnings before the discrimination or harassment started, and your earnings afterward.
If your lawsuit is successful, your lawyer may be able to recover your lost income as damages.
4. Physical evidence such as pictures and messages
If you’re able to provide your lawyer with physical evidence of the discrimination or harassment, such as inappropriate messages, pictures or emails sent to you, this will greatly strengthen your case.
Your ability to provide these depend of course on whether you stored them when they were sent to you.
5. Diary or journal entries
One of the most helpful pieces of documentation you can provide your lawyer are your own written descriptions of the incidents of discrimination or harassment. This could be in the form of a diary, or notes written at the time of the incidences.
Such entries should include information such as date, time, location of the discrimination or harassment, exactly what happened and those who witnessed the discrimination or harassment.
6. Health records
If the discrimination or harassment has caused you to develop a medical or mental health condition or to seek treatment or counselling, you should be able to provide this information and supporting documents to your lawyer.
If you are successful in your lawsuit, this information could positively affect how much damages you can recover
7. Contact info of witnesses and witness statements
If there were witnesses to the incidences of discrimination or harassment, provide your lawyer with their names and contact info, so that your lawyer can corroborate your story and possibly have them serve as witnesses when your case goes to court. If you managed to obtain a statement from a colleague or other persons who witnessed anything that could corroborate your story, you should also provide this to your lawyer.
Although the ideal situation is that you should be able to provide all of the above documents above to your lawyer, it is quite possible that you are not able to. If you cannot, then you should at least be able to provide your lawyer with as much as you possibly can. This will save your lawyer the legwork of trying to track down information and being stalled. It will also expedite your case and help you get to a resolution faster.
As you may have surmised from the above, proper documentation is a significant part of successfully filing workplace harassment or wrongful termination claim. You need it, your lawyer needs it and the EEOC and/or courts also need it. However, providing the right documentation goes beyond merely having the documents. They need to be in a format in which they can be accepted as evidence and not have their authenticity questioned. In other words, your documents need to stand up to scrutiny in court. This is particularly so for documents which you create yourself, such as your diary entries, and documents which are vulnerable to being manipulated, such as emails, witness statements and the like.
In addition to having the right documents, you also need to ensure that their integrity is protected through document storage and verification system like Forensic Notes which automatically timestamps your document and protects them from being tampered with.
This is critical to their acceptance as evidence which your lawyer can put forward before the EEOC or in court.