“This Is My Rifle. There Are Many Like It, but This One Is Mine” — Litigation Basic Training, Part I: The Lawsuit

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As the founder and leader of an employment law firm, Attorney Josh Van Kampen approaches litigation as a life-or-death situation — and losing isn’t an option.

The Three Phases of the Litigation Process

There are three phases to the litigation process: the lawsuit, the discovery phase, and the trial.

Litigation Phase #1: Filing Your Lawsuit

In the first of this three-part series on litigation, employment lawyer Josh covers everything you need to know about filing your lawsuit, starting with the most important part: the unconventional (yet highly effective) way he approaches writing the complaint’s introduction.

File Your Lawsuit With a Well-Written Complaint Introduction

“We write our introductions like an opening statement to a jury. So we figure out what our theme is early and we hit that theme, literally in the first paragraph of the complaint, and we’ll hit that theme all the way through to the jury trial, if we get there,” Josh says.

Once the introduction has been written, it’s time to file your lawsuit. Here, you have a choice between filing in a federal or a state courthouse, both of which have their pros and cons.

Do You Need A Lawyer to File a Lawsuit?

There might be times where you question if you even need a lawyer when filing a lawsuit. Josh compares taking a pro se approach (sans attorney, or on behalf of ones self) and the times when you really want an attorney’s expert opinion and know-how. That might be for instances like knowing how jury pools are pulled and which state judges might favor corporations over sympathizing with the individual’s case.

Learn How to Find the Right Employment Lawyer

What Happens After I File a Lawsuit With the Court?

After the lawsuit has been filed with the appropriate court and the summons have been served, it’s time for the employer to send their response.

While lawsuit filing isn’t the most exciting part of the process to Josh — he prefers the discovery phase — this phase can make or break your lawsuit.

As a highly experienced employment lawyer, Josh’s step-by-step process to filing your lawsuit ensures you won’t miss anything and the process runs smoothly.

Every Thing You Need to Know About Filing a Lawsuit

★    Write your complaint introduction like an opening statement to a jury — Josh says that writing a good introduction is the most important thing you can do, as it sets the theme for the lawsuit and ensures anyone reading it is fully informed of the situation by page two. It’s a bit of an unconventional method approach to writing complaints — which are usually written as dense legal prose rather than an engaging narrative — but it really helps frame the entire lawsuit.

★    Your lawsuit is likely better off in a state courthouse than a federal one — This all depends on the state you live in but according to Josh, “most lawyers, probably even nine out of 10, tell you that you’re better off in the state courthouse than you are in a federal courthouse.” Why? It mainly has to do with judges, as some may be more sympathetic to corporate interests instead of individual interests, as well as differences in how jury pools are pulled.

★    If you’re worried about your lawsuit being public record, don’t file it — Technically, you could try to file your lawsuit anonymously as a Jane or John Doe, but Josh says if you aren’t comfortable putting your name on it, you shouldn’t file the lawsuit. While it could get lost in the mix of the hundreds of lawsuits filed every week, there’s no guarantee that your lawsuit won’t pop up in a in a Google search for your name.

Podcast on How to File a Lawsuit

1:56 “We really approach litigation as a life-or-death sort of situation for our clients — that losing is not an option. I thought it was applicable to talk about essentially a boot camp because our clients are entering this arena that we fight on all the time, for the first time, usually just unwitting about what’s to come.”

4:43 Don’t overlook the complaint: Josh explains what you need to include in your complaint, how it serves as the outline for your entire lawsuit and the unique method he uses at his law firm to build the most effective complaint possible.

9:42 Knowing your audience: Josh explains how your audience is so much more than the judge assigned to your case, including everyone from the CEO of the company or the lead of a legal department of a bank. He also discusses how to appeal to this wide range of individuals.

10:04 “We’ve talked before in podcasts about the importance of breaking molds, and here, you break the mold when you write a lawsuit that reads like a jury opening statement in the first two pages. … It’s all about the first impressions, just like when you walk into a job interview and you wear a nice suit — the same goes for writing a nice complaint.”

12:30 Filing in state vs federal courthouses: Josh discusses the differences between state and federal courthouses, from differences in judges to jury pools to costs, and how to choose the best one for your lawsuit.

15:27 Obtaining and serving a summons: After filing your lawsuit, you’ll receive the summons, which is what you use to serve the defendant. Josh covers the best (and most cost-effective) way to serve your summons.

18:48 Lawsuits are not anonymous: If you’re worried about your lawsuit being public record, Josh talks about how you can’t really file a lawsuit anonymously. His advice? If you don’t want your name on it, don’t file your lawsuit.

19:18 The worry about being countersued: Josh discusses the prevalence of counterclaims being filed in his experience. While some people may be concerned about being countersued, filing a complaint is a constitutional right.

20:49 Speaking to the media: Media attention isn’t as common as people think. Regardless, Josh shares advice about what you should and shouldn’t do when speaking to the media about your lawsuit.

22:33 Employer response to your complaint: Josh discusses what happens after a lawsuit has been filed and served, including how companies respond to each portion of the complaint.

23:19 “Once again, why it’s so important to write your complaint well is that you don’t want to leave it vulnerable to a motion to dismiss. The motion to dismiss essentially argues there was some defect in the complaint, [and] that we don’t even get to go to the discovery phase or summary judgment phase.”

Contact A NC Lawyer for Employment Lawsuits

As the founder and leader of employment law firm Van Kampen Law, Josh Van Kampen settles employment disputes with fearlessness and unparalleled client advocacy. For more online resources and videos browse our website, or better yet, fill out our confidential client intake form or call (704) 247-3245 for a free initial intake interview so Van Kampen Law can evaluate your case.

Words of wisdom: “We really approach litigation as a life-or-death sort of situation for our clients — losing is not an option.”

Follow & Connect With Josh

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The Walking Papers is a bi-weekly podcast by Van Kampen Law, a plaintiff-side employment law firm based out of Charlotte, NC, this podcast aims to give listeners, who are on the wrong side of some sort of situation at work, practical advice on how to turn the tables on their employers.

This podcast is just an educational resource. It does not constitute legal advice and is no substitute for consulting an employment attorney about your unique situation before making legal decisions.

How To Combat Implicit Bias in the Workplace

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Labor and employment attorney Michael Morrison wants you to know there’s a difference between being racist and being implicitly biased.

“Racism is the belief that race is the primary determinant of human traits and capacities, and that racial differences produce an inherent superiority of a particular race,” he says in this episode of The Walking Papers podcast. “Bias, on the other hand, is … the subjective preference toward a particular viewpoint or belief that prevents a person from maintaining objectivity.”

Implicit Bias isn’t Discrimination, But it Leads to it.

In this episode, the Van Kampen Law attorney expands on discrimination, sharing his opinion that the lines between discrimination and implicit bias blur when an individual becomes aware of yet indifferent to the negative outcomes of their bias. Michael also breaks down why biases occur naturally (spoiler: all of us make most decisions subconsciously); how they play out in the workplace and in the legal system; and how to overcome them.

“Implicit biases can skew talent and performance reviews, in addition to amplifying or mitigating workplace disciplinary measures,” he says. “When one has an unconscious belief, which has been molded years and years over by their lived experiences … it can have an impact on all decision making.”

Michael also elaborates on the concept of cultural humility — aka acknowledging that we all have biases and committing to reducing our reliance on them — and why it’s the first step to combating the activation of these biases.

What is Implicit Bias?

Implicit bias isn’t inherently discrimination, but it can influence behavior in ways that lead to it — Experts agree that most of our decisions are made subconsciously based on social norms, and further shaped by our personal experiences. This becomes an issue in the workplace when you make a decision in favor of one group to the detriment of others, Michael says, which is why implicit bias evidence is regularly used in employment discrimination claims (commonly in the form of expert testimony, general and specific).

Who Has Implicit Biases?

★ Everyone harbors implicit biases of some kind, but that doesn’t mean you can ignore their effects — Implicit biases make you human, Michael says, but it’s important to control whether we act on them or not. Your brain’s natural tendency toward implicit bias can be overridden through conscious and deliberate effort, so if you put in the work to be unprejudiced, you can suppress bias responses and become more objective in the workplace.

How to Avoid Unconscious Bias at Work

Don’t underestimate the power of discomfort — It’s one thing to simply accept your prejudices and train yourself to keep them out of your decision-making process, but it’s another to fully embrace everyone’s differences. Michael believes cultural collisions occur when people don’t know how to respond to difference, so he encourages everyone to get to know and appreciate differences between themselves and their coworkers.

Implicit Bias in the Workplace Podcast Show Notes

1:22 Title VII: Michael explains the importance of Title VII as a labor and employment attorney. He then offers definitions for the two types of illegal discrimination that Title VII addresses: disparate treatment and disparate impact.

3:49 Pulling out the dictionary: Michael offers a definition for implicit bias and how it relates to a fun fact: most neuroscientists say the majority of our cognitive processes occur outside of our conscious awareness.

5:36 “Most people tend to believe that nearly all of their choices are deliberate. But most of a person’s everyday life is determined not by their conscious intentions and deliberate choices, but by mental processes that are put in motion by features of one’s environment that oftentimes operate outside of conscious awareness and guidance.”

7:21 Distinguishing between the two: Michael explains the pivotal difference between racism and implicit bias and why it’s easy for people to blur the lines between the two.

8:13 Seeing it in action: Michael elaborates on implicit bias and how it shows up in the legal system and workplace.

8:34 “Unfortunately, while the Sixth Amendment guarantees a defendant the right to an impartial jury, studies have shown that members of the jury are often unknowingly influenced by biases that are present in our social and cultural norms, lived experiences by their cultures by their background — it can have an impact on all decision making.”

Using Motivated Awareness and Inclusive Integrity to Combat Bias

11:52 Addressing it: Michael offers some suggestions for how to address implicit bias in the workplace, which includes discussion about the terms motivated awareness and inclusive integrity.

12:06 “Everyone harbors implicit biases for or against something, someone or a group, point-blank, period. Having these biases don’t make you a bad person. They make you human. And it’s important to understand that.”

15:38 Getting uncomfortable: Michael explains how cultural collisions occur — because we don’t always know how to respond to difference — and why it’s important to pause and reflect on (and appreciate) what makes us different.

Address Discrimination at Work With a NC Employment Lawyer

The Walking Papers is a bi-weekly podcast by Van Kampen Law, a plaintiff-side employment law firm based out of Charlotte, NC, this podcast aims to give listeners, who are on the wrong side of some sort of situation at work, practical advice on how to turn the tables on their employers.

This podcast is just an educational resource. It does not constitute legal advice and is no substitute for consulting an employment attorney about your unique situation before making legal decisions.

Visit our website for more online resources and videos, or better yet, call (704) 247-3245 for a free initial intake interview so Van Kampen Law can evaluate your case.

Michael Morrison, Attorney For Workplace Issues

What he does: As a labor and employment law attorney at Van Kampen Law, Michael Morrison advises his clients on legal proceedings related to workplace issues.

Words of wisdom: “Our brains automatically do this thing where it matches a typical categorical prototype to assess its fit. So these mental shortcuts, they’re based on social norms and stereotypes that we’re all subject to. And they’re shaped through our backgrounds, our cultural environment, and our personal experiences.”

A Complete Guide To Your Rights Regarding COVID-19 Vaccine Mandates in the Workplace

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Labor and employment law attorney Michael Morrison is not a medical professional. But he does understand the importance of knowing your rights when it comes to a COVID-19 vaccine mandate in your workplace — especially now that such mandates are legal under specific conditions.

Legal and Practical Considerations for COVID-19 Vaccine Mandates

COVID-19 Vaccinations and The Americans With Disabilities Act

“Mandatory medical testing in the workplace is governed by the ADA, the Americans with Disabilities Act, which is intended to protect applicants and employees from disability discrimination,” he says in this episode of The Walking Papers podcast.

“An employer must have a reasonable belief based on objective evidence — which can come from a fellow employee or another trusted source of an employee’s ability to perform essential job functions — that they will be impaired by a medical condition, or an employee will pose a direct threat due to a medical condition.”

Lastly, Michael shares what to expect if you implement a COVID-19 vaccination requirement in your workplace. An employee may indicate they’re unable to receive the vaccine because of a disability or a sincerely held religious belief, practice or observance (which is the main legal objection to the mandate); Michael explains how to respond in this situation.

COVID-19 Employment Law Resources For Employees

Can Employers Mandate the COVID-19 Vaccine?

★    Know your rights when it comes to vaccine mandates in the workplace — Employers have the right to require their team to get the COVID-19 vaccine, but employees also have the right to refuse to get it if they have an ADA-covered disability or sincerely held religious belief, practice or observance.

★    Move forward with caution if you’re an employer mandating it — Just like mask mandates, pushback is inevitable with a vaccine mandate, so be prepared for requests for accommodations. To make sure you’re remaining lawful, ensure pre-screening questions are job-related and necessary for the business.

★    You might have to identify other workplace accommodation options that do not constitute an undue hardship — If an employee says they’re unable to receive the vaccine due to a disability, their employer must show that an unvaccinated employee would pose a direct threat, due to a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.

1:29 Constantly evolving: Michael discusses the current vaccine landscape — who’s in line before who, what the different levels are, etc. — in North Carolina and explains where to look for the latest information.

Guidance From the EEOC & ADA on Reasonable Accommodations

4:05 Getting the green light: Michael explains why employers have the right to require their team to get the COVID-19 vaccine via the Americans with Disabilities Act, which allows mandatory medical testing based on the “direct threat standard.”

4:21 “In March of 2020, in response to the COVID-19 pandemic, the EEOC updated its guidance on pandemic preparedness, which describes acceptable COVID-19 testing practices, and under the ADA, all medical examinations, or questions that may elicit information about a disability, they must be job related and consistent with business necessity.”

7:06 Equity is key: Michael dives into why employers should develop “consistent, objective internal policies” when it comes to COVID-19 testing.

8:08 What’s required of you: Michael elaborates on what making reasonable accommodations based on a disability really means according to the ADA, and what the only exceptions to this requirement are.

Mandatory Vaccine Considerations For Employers

12:38 Worse comes to worst: Michael explains why employers are allowed to bar an employee from the workplace if they refuse to comply with COVID-19 protocols like having their temperature taken or answering questions about symptoms.

14:44 Tread lightly: Michael discusses why, if an employer administers the COVID-19 vaccine, that employer should show that the pre-screening questions are job-related and necessary for the business.

15:38 “Subsequent employer questions such as asking why an individual did not receive a vaccination may elicit information about a disability, and will be subject to the pertinent ADA standard.”

16:23 Expect pushback: Employers should be prepared for some employees to refuse the mandatory vaccination. Michael explains why that’s legal if they have an ADA-covered disability or sincerely held religious belief, practice or observance.

16:40 “Just to be upfront, the imposition of this mandatory vaccine, if employers choose to do so, will almost certainly result in a slew of accommodation requests, whether it’s medical, religious, personal or ethical.”

18:49 What to say: Michael discusses how to respond to an employee who indicates they’re unable to receive the vaccine because of a disability or a sincerely held religious practice or belief.

Know Your Vaccine Rights With A NC Employment Lawyer

The Walking Papers is a bi-weekly podcast by Van Kampen Law, a plaintiff-side employment law firm based out of Charlotte, NC, this podcast aims to give listeners, who are on the wrong side of some sort of situation at work, practical advice on how to turn the tables on their employers.

This podcast is just an educational resource. It does not constitute legal advice and is no substitute for consulting an employment attorney about your unique situation before making legal decisions.

Subscribe to the podcast in your preferred app, visit our website to fill out a confidential client intake form, or better yet, call (704) 247-3245 for a free initial intake interview for Van Kampen Law to evaluate your case.

About Michael Morrison, Employment Law Attorney in Charlotte NC

As a labor and employment law attorney at Van Kampen Law, Michael Morrison advises his clients on legal proceedings related to workplace issues.

Words of Wisdom from Michael Morrison: “Though mandatory testing is allowed, employers still have to be smart and equitable, they still have to check the boxes … and they need to remember that they can still be liable.”

How to Find the Right Employment Lawyer and Why It’s Like Buying a Car

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Josh Van Kampen, founder of the boutique employment law firm Van Kampen Law, PC, isn’t afraid to sound superficial. It’s just part of his business.

“It’s important for your lawyer to have a nice office, because you’re likely to be conducting mediations and depositions in that office, and if the office exudes accomplishment, and if their firm is successful, then you’re breaking the mold,” he says in this episode of The Walking Papers podcast.

“So, when their general counsel walks in the door, and they walk into a nice office, and they’re saying, ‘This firm is different,’ it actually is important.”

In this episode, he discusses the first steps anyone should take when seeking an employment lawyer, and why shopping around for the right fit is similar to picking the right car: you shouldn’t just go for the first, cheapest model you find. You need to do some background research and make sure you know their experience and their accomplishments — understand what their rate says about them.

He also says it’s okay to be picky based on otherwise superficial elements such as a firm’s website or office, because how they present themselves is often a reflection of their level of professionalism and level of care.

Tips to Avoid Choosing a Bogus Employment Lawyer

★    Doing your research is always key — Both the lawyer and the client need to go into a consultation prepared. If the lawyer seems uninterested and doesn’t bring any background to the table, that’s just as bad as you as the client coming in and not having enough information for a proper case.

★    Sometimes judging a book by its cover is OK — When you’re shopping around for a lawyer, it’s smart to pass on the firm with an outdated website with few resources, just like it’s OK to pass on the firm based in a dingy strip mall that’s equally seedy on the inside. Lawyers who have put time into making their website a modern resource and effort into making their office a relaxing environment are more likely to be successful lawyers.

You get what you pay for — It’s a cliche, but when it comes to finding a good lawyer, Josh says it’s absolutely true: There’s no such thing as a free consultation if it’s a busy, successful firm — so think twice before meeting with someone who isn’t asking you to pay for their time.

Episode Highlights On How to Find the Right Employment Lawyer

2:42 Shop around: Josh discusses the importance of being picky when it comes to choosing your employment lawyer. He also outlines what he does and how his boutique firm uses its resources to help low-income clients by doing things such as fronting costs.

8:03 First steps: Josh explains why the first thing you should do is connect with friends and family members who either are lawyers or know lawyers. Then, he explains why it’s fair to judge a firm by its website.

12:43 Breaking the mold: Josh discusses his favorite phrase a little further and explains how it relates to a lawyer’s office and the importance of a relaxed environment that exudes accomplishment.

16:01 Did they do their homework?: Josh explains why, whenever you’re walking into a consultation with a lawyer, it’s important that they’ve done their research on your case.

20:41 Know your story: Josh discusses why you as a client need to be prepared for that first meeting as well because “doing your homework” goes both ways.

Advice on Picking a Lawyer

2:41 “A lot of times people spend more time picking their car than they do picking their lawyer. In terms of some of the most traumatic things that can happen to you in your life — other than a loss of a family member — a loss of a job is usually the second most important one. And people a lot of times are so nonchalant in picking an employment lawyer or even even doing the research to find an employment lawyer.”

17:37 “Would you go to a free massage? You know, it’s that sort of thing — if a lawyer is offering a free consultation, it’s not a good sign to me,” Josh says. “If you’re a law firm that’s busy, then they’re probably not going to offer free consults. Because the law firm’s kind of squeezing you in … you get what you pay for.”

20:44 “Be prepared to tell your story in a succinct way, because if you don’t, the lawyer is much more likely to decline the representation because the lawyer’s picking a partner in litigation, just like you’re picking a partner and a lawyer.”

Get in Touch With a North Carolina Employment Lawyer

The Walking Papers is a bi-weekly podcast by Van Kampen Law, a plaintiff-side employment law firm based out of Charlotte, NC, this podcast aims to give listeners, who are on the wrong side of some sort of situation at work, practical advice on how to turn the tables on their employers.

Subscribe to the podcast in your preferred app.

This podcast is just an educational resource. It does not constitute legal advice and is no substitute for consulting an employment attorney about your unique situation before making legal decisions.

Visit our website for more online resources and videos, or better yet, fill out our confidential client intake form or call (704) 247-3245 for a free initial intake interview so Van Kampen Law can evaluate your case.

What To Do If Your Job Puts You At Risk of COVID-19

Van Kampen Law was recently featured on WSOC-TV Channel 9 Eyewitness News. Anchor Brittney Johnson interviewed Josh Van Kampen about the biggest COVID-19 safety concerns people are facing on the job and what to do if your job puts you at risk. Learn what you can do if your job puts you at risk of COVID-19 and see the laws that protect public health whistleblowers against retaliation.

The EEOC – Would You Like a Pedicure to Go Along With That Facial? Why Employers Receive the Spa Treatment, and You Are Steve Carell in 40-Year-Old Virgin

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After visiting the EEOC website and reading its mission statement, you might feel heartened and even empowered when filing a charge of discrimination with the federal agency. Its stated mission is “to prevent and remedy unlawful employment discrimination and to advance equal opportunity for all in the workplace.” You’re the victim of discrimination and this agency is there to help right? For most people who file charges, the experience at the EEOC is often extremely frustrating and disappointing.

On this episode of the Walking Papers podcast, Attorney Josh Van Kampen gives listeners a glimpse under the hood of the lifecycle of an EEOC charge. With twenty years experience representing both employers and employees before the EEOC, Josh shares his unvarnished take on what listeners should expect in reality when they file an EEOC charge. He takes listeners through the nuts and bolts of this administrative process, including how and when to file an EEOC charge, how the EEOC “investigates”, what you can do to improve your chances at the EEOC, and what happens when the EEOC concludes its investigation. Bottom line, the EEOC investigator will not do much to help you or investigate, which is why being represented by counsel is so important as you navigate through this flawed process.

Highlights From the Episode

  • Why file with the EEOC? (3:03)
  • Timeline for filing a claim with the EEOC (3:46)
  • Does filing an internal complaint with my employer affect the timeline for filing a claim with the EEOC? (6:03)
  • How to file a claim for employment discrimination with the EEOC (7:16)
  • What claims should be in your discrimination complaint? (10:56)
  • What happens after you file your discrimination claim (12:00)
  • The EEOC investigation (14:06)
  • The conclusion of the investigation (18:06)
  • The EEOC didn’t find cause, do I still have options? (19:12)
  • What happens in the rare case that the EEOC makes a “cause finding”? (20:28)

Connect With Us

Our Websites: 7 Mile Advisors & Van Kampen Law

Follow us on Facebook, Twitter, LinkedIn, and Youtube.

For more information on how Van Kampen Law can help you, call 704-247-3245 or contact us online by filling out our confidential online intake form.

The Walking Papers is a bi-weekly podcast by Van Kampen Law, a plaintiff-side employment law firm based out of Charlotte, NC, this podcast aims to give listeners, who are on the wrong side of some sort of situation at work, practical advice on how to turn the tables on their employers. This podcast is just an educational resource. It does not constitute legal advice and is no substitute for consulting an employment attorney about your unique situation before making legal decisions. Visit our website for more online resources and videos at NCemploymentattorneys.com, or better yet, call (704) 247-3245 for a free initial intake interview so Van Kampen Law can evaluate your case.

Read Full Transcript

Intro: 00:01 Human resources, employee relations, the legal department are aligned against you. Your employer has trained for this day, the day you’ve become an expendable number at work. There are robust laws that may protect you, but unlike the company, you’ve not been drilled on how to wield them, you’re playing catch-up. There are pitfalls to avoid and countermeasures to deploy that may save your job or put you in the best position to negotiate a favorable settlement. Minutes matter, your words and actions matter even more. The Walking Papers podcast offers the first foray into learning how to turn the tables when you’ve been targeted at work. Knowledge is power. Let’s get started.

Steve Carell: 00:50 Hi, how are you?

New Speaker: 00:50 So this is your first time getting body waxed?

Steve Carell: 00:53 Yes. Yes, it is.

New Speaker: 00:54 Take off your shirt.

Spa Technician: 00:55 Oh, we’re going to need more wax. Clear all my appointments in the afternoon.

Steve Carell: 01:07 Oh, Como se llama?! Oh! … Kelly Clarkson!

Steve Carell: 01:09 *screams*.

Robert Ingalls: 01:11 Welcome to The Walking Papers podcast. I’m your host Robert Ingalls, and I’m here with attorney Josh Van Kampen of the Van Kampen Law firm. Today’s episode is titled the EEOC, would you like a pedicure to go along with that facial? Why employers get the spa treatment and you are Steve Carell in 40‑Year‑Old Virgin. Hello Josh.

Josh Van Kampen: 01:34 Hey Rob.

Robert Ingalls: 01:35 All right. So take us through that title. You always title them very well. Tell us about that.

Josh Van Kampen: 01:40 I remember one time being at the EEOC during a mediation and looking at the nice light blue paint on the walls and thinking how relaxing this is. And then my experience in practicing before the EEOC in Charlotte here since 2004, is that it’s like a spa treatment. I do not think that employers walk through the door at the EEOC with even an ounce of trepidation about what might happen to them. And that’s a shame because this is an agency whose job it is, is to enforce the civil rights laws in our nation. But at least my experience in North Carolina is quite the opposite. And I have literally had clients of mine who have described their interactions with the EEOC as being excruciating sometimes.

Josh Van Kampen: 02:28 And Steve Carell, maybe that’s a little over the top, he was in a lot of pain, but all the same, it’s not been pleasant for a lot of my clients. And there are some exceptions. In fact, there are some excellent investigators that I have dealt with at the EEOC in North Carolina, but there are a minority. And so, I’m going to describe what to expect from the EEOC in reality, and in North Carolina. And then some of this will translate obviously nationwide, but I’m going to be focusing in particular what to expect it in the North Carolina EEOC.

Robert Ingalls: 03:02 Sure. So if it’s as terrible as you say, why should I be filing with them to start with?

Josh Van Kampen: 03:07 Because you have to.

Robert Ingalls: 03:09 That’s a good answer.

Josh Van Kampen: 03:09 That would be the only reason you would ever go through this process. So there’s something, a legal term for it is exhaustion. There’s an exhaustion requirement that in order to pursue claims in court under Title Seven of the Civil Rights Act or the Americans With Disabilities Act or Age Discrimination Act, you have to go through this government agency process first at the conclusion of which you get something called a right to sue letter, which is your ticket into the courthouse. Well, I have a totally different podcast about what happens in the courthouse, but we’ll describe what happens in the EEOC process today.

Robert Ingalls: 03:44 Got you. So is there a perfect time to file? When should I be thinking about this?

Josh Van Kampen: 03:49 So think about all those commercials where they say, act now, 19.99, then you get a free widget.

Robert Ingalls: 03:57 Right, as long as you do it in the next 12 minutes.

Josh Van Kampen: 03:59 Yeah, exactly. So folks should act now, as far as I’m concerned. If something has happened that you think is discriminatory, file right away.

Robert Ingalls: 04:09 Now, is there a timeframe? Can I wait too long?

Josh Van Kampen: 04:13 You can definitely wait too long. In fact, the statute of limitations is very short under Title Seven, the Americans With Disabilities Act and Age Discrimination Act. You only have 180 days from the Discriminatory Act to file with that agency, 180 days. Be careful folks that you don’t get tripped up on when to start counting that 180 days. So let’s say in a scenario where you are informed of your termination on a Monday, but you’re not fired until Friday. When you’re counting your 180 days, you count it from the day that you learned of the Discriminatory Act, not when they stopped paying you. So in that instance, we’re counting 180 days from that Monday.

Josh Van Kampen: 05:01 And then it gets a little bit more complicated, but I have some good news for folks that live in States where there is a human affairs commission. In that instance, there’s a 300 day limitation period. Be very careful, you’re going to want to research your state law to see if there’s a state agency in which case there’s 300 days to do that. But there’s going to be folks that are also confused and saying, well, what about sexual harassment cases? So there’s lots of incidents over a period of time, when do my 180 days start counting? And I would say, conservatively, you want to start counting from the date of the first incident.

Josh Van Kampen: 05:38 Worst case scenario, you can file within 180 days of the last incident, but then you’re in a pickle because now we’re having to argue to a court or the EEOC. Now you need to look back even further because it’s, what’s called a continuing violation to say it’s a pattern. And so, we can look back further than that 180 day cutoff, but we don’t want to be arguing that, so.

Robert Ingalls: 05:59 Right, it’s a more difficult position. Is that what you’re saying?

Josh Van Kampen: 06:01 Exactly, right.

Robert Ingalls: 06:03 Now, let’s say that I haven’t gone to the EEOC, but I filed an internal complaint with the company. I let my manager know, I let HR know. Does that change anything? Does that do anything with the federal deadline?

Josh Van Kampen: 06:13 No. And your employer will never tell you that. So you’ll read your employee handbook and it’ll say, oh yeah, you should file a complaint with us and we’ll investigate it internally. That internal investigation has nothing to do with the EEOC process. So in legal terms, that’s called tolling, does that your filing of that internal complaint toll your deadline? It doesn’t. You’re stuck with that 180 day deadline, so don’t get all caught up in an internal complaint process, because it has nothing to do with your 180 day deadline. And spoiler alert, your internal investigation is going to find that nothing wrong happened. I think maybe once in my career it was the other way and I was like, I’m buying a lottery ticket, because it never happens. Yeah, so be careful about that internal complaint process. Don’t get distracted from your federal deadline.

Robert Ingalls: 07:06 Yeah. We’ve talked about that before on the podcast, HR is generally not on your side.

Josh Van Kampen: 07:10 Yeah. We’re going to … Let’s do another one. Isn’t it fun to just beat up on HR?

Robert Ingalls: 07:16 All right. So we figured out that we have to file, really no other way to do it. How do we go about doing that?

Josh Van Kampen: 07:23 What I like my folks to do and what we do here at the law firm when we’re not in a pandemic where you’re not allowed to do it anymore, is to file in person. So you can research, the EEOC has district offices, which are regional. And then within districts, there are offices, regional offices where you can go. And so you can literally walk into these government agencies and say, hey, I’m here to file a charge. They will sit you down with an intake person and they will work with you to prepare your charge.

Josh Van Kampen: 07:55 Now, be careful because the investigator that you’re interviewing with probably doesn’t really want you to file that charge. And this is another spoiler alert that the EEOC is just pushing these things for the most part. So do not get talked out of filing your EEOC charge by somebody at the EEOC because they have their own agenda in terms of their numbers. And so, be careful, go down there and file. But remember, the EEOC only cares about discrimination. So if you’re walking in there and you’re saying, my supervisor was unfair to me ever since so-and-so, I didn’t buy them a donut and I bought donuts for everybody else, she hated me. EEOC is going to say, I don’t care.

Robert Ingalls: 08:37 You should’ve bought her a donut.

Josh Van Kampen: 08:39 That’s on you, right. Don’t be such a cheapskate.

Robert Ingalls: 08:43 Now, I imagine if you try to make the argument, if you’ve missed your deadline and you try to make the argument, well, the EEOC investigator talked me out of it that’s probably a toll hill decline.

Josh Van Kampen: 08:53 It is. And in fact, you would have a very difficult time compelling that investigator to testify. And no lawyer is going to touch that case because we don’t want to be dealing with that discrimination case that’s sure hard enough to begin with.

Robert Ingalls: 09:06 Right.

Josh Van Kampen: 09:07 So that’s one way is in person.

Robert Ingalls: 09:10 All right. So we can file in person and then it sounds like you said, but because of COVID right now, we’re not allowed to do that. So I assume there’s an online option?

Josh Van Kampen: 09:18 Yeah. There is something called the EEOC Portal, or, and if you just Google, how do I file an EEOC charge, you’re going to boop, get put right into the EEOC’s website where you can find the location that you can file in person. They also have something called the EEOC Portal where you will input information, and then that will prompt somebody from the EEOC to contact you. Now, be careful because your completion of that preliminary information in the EEOC portal is not any EEOC charge folks, that is you just providing information for an investigator to call you back. So your 180 days that didn’t move the needle, you didn’t do anything at that point.

Josh Van Kampen: 10:01 If you do the EEOC Portal route and the EEOC reaches out to you at that point to interview you, this is once again, where it’s important that you talk about discrimination, don’t make this about unfairness and be ready to explain what happened and to backup your claim. And it’s at that point that the EEOC personnel are supposed to work with you to actually facilitate the completion of the form. So that’s the EEOC Portal process. And then you can also file via email. I’m not going to give an email address right now because just in case it changes, but if you call your EEOC regional office and say, hey, I’d like to file a charge, they do accept charge filings by email as well. But me personally, I like the idea of going down there, completing it, getting it file stamped, got it in your hands, take it home. That’s the safest way to do it.

Robert Ingalls: 10:56 While we’re still on this, you did say you want to talk about discrimination. Is there anything else you need to be thinking about saying, or perhaps not saying?

Josh Van Kampen: 11:06 Well in the EEOC charge form, so remember the EEOC is looking to determine whether or not they have jurisdiction. So the EEOC form that you’re ultimately going to sign, it’s going to have boxes. There’s going to be a box for sex discrimination, race discrimination, religious, national origin, disability, age. So you got to check the boxes so that the EEOC sees that it has jurisdiction. And don’t be picky on these boxes. So down the line, your lawyer may, there may be three different kinds of discrimination going on. And if you only check one, your lawyer is going to have a hard time arguing new theory in the future.

Josh Van Kampen: 11:43 So if you’re over 40, African-American and you’re female, I would recommend checking all those boxes. And then later at trial, we’ll probably whittle it down to maybe one primary theory, but at the EEOC we want to take a broad net, trust a broad net.

Robert Ingalls: 12:00 All right. So we’ve talked about how to file. Now that I’ve filed, what happens next?

Josh Van Kampen: 12:05 It’s just downhill from here. So the charge will be sent to the employer. And as I said, the employer’s heartbeat will very likely just stay nice and steady. And then they’ll be given two options at that point. One is they can participate in the EEOC’s mediation program, which is ding, ding, ding, a good thing for us. Or they can say, I don’t want to mediate, I want to defend this, and then it gets moved on over to the investigation unit. So we’re going to focus on the investigation process. But just real fast on this EEEOC mediation process, the good news is it’s free. So normally in private mediation, you have to pay the mediator here, the EEOC will provide one.

Josh Van Kampen: 12:47 And if you filed a charge and your employer agreed to mediation, that’s a good sign. They probably are interested in exploring settlement. And then you’re wondering, well, do I need a lawyer at this mediation? And I can tell you your employer’s going to have one, so you should. I mean, you can go in, but I tell you’re going to do better I think on the numbers, if you’re represented and they’ll take you more seriously, if you show up to mediation with a lawyer. Yeah, so get one.

Robert Ingalls: 13:16 Yeah. And I assume, in general, the lawyer’s probably going to have a much better idea of what your options are, what the law states and get you a better deal.

Josh Van Kampen: 13:24 And what your case is worth. I mean, you don’t know, but your lawyer will have a good sense for what it’s worth.

Robert Ingalls: 13:28 Sure.

Josh Van Kampen: 13:29 I would say about 50 to 60% of charges result in a mediation at the EEOC, but remember, you’re not obligated to take a deal. So if they’re offering you a shit deal, the EEOC mediation, don’t take it. Just let it go on down to that investigation process and play it out. But if it’s, a lot of times I tell my clients, if it’s, that you were fired three months ago and they’re already offering you pretty decent money at the EEOC mediation, a lot of times the right call is to take it, but don’t take a bad deal because then if you don’t take it, it goes down to this investigation process we’re going to talk about.

Robert Ingalls: 14:06 Now you said, so there was mediation and then from mediation they go to investigation. What does that process look like?

Josh Van Kampen: 14:12 All right. So the charge gets mailed to the employer like we talked about. At that time, they’re required to submit what’s called a position statement. So you’re opening salvo was that EEOC charge, which is going to contain your factual allegations. And now, the company is going to submit a position statement, which is its defense. You are entitled to get a copy of that position statement, at least in North Carolina. And so, wherever you are in the nation, if you’re listening to this, you want to get a copy of that EEOC charge position statement so that you can respond to it and you do have the right to respond to it.

Josh Van Kampen: 14:49 But guess what? The EEOC sometimes does. Sometimes they get a position statement, they read it and they say, no, that sounds pretty good to me. I don’t see anything there, so we’ll just let this one go. No need to investigate it. So I’ve been watching Fargo, so that’s why I go with the Minnesota accent there, but-

Robert Ingalls: 15:10 I was wondering why we made … That was a very particular style choice.

Josh Van Kampen: 15:13 I’ve been doing this the last 30 days, but yeah, so anyway, that’s usually that can happen. And it’s really frustrating because the plaintiff didn’t even get a chance to respond to it. So get your position statement, then you want to submit a rebuttal. Usually, the EEOC investigator will either want to interview you, in which case do your homework. I would prepare an outline of what you anticipate wanting to say in response to the position statement, or if the investigator prefers, they may ask you to submit a written rebuttal.

Robert Ingalls: 15:48 Now in this rebuttal process, I know every time I’m talking, I need to be thinking about what I am, what I should and shouldn’t be saying. Is there any landmines I need to be avoiding during this process?

Josh Van Kampen: 15:57 Yeah. So be careful with this interview with the EEOC investigator. So most EEOC investigators are interviewing with a goal in mind of moving that charge off their desk. So if they can get you to say some damaging things in response to their questions, then they just said, okay, this one’s off my desk. So it’s a shame. But even when I’m on the call as counsel with my client and they’re being interviewed, there have been times where it was so obvious that the EEOC investigator was trying to trip my client up, that I interjected. And then they say, “Oh, Josh, well, I’m not here to interview you. I’m here to interview your client.” And I’m saying, “No, you’re here to trip up my client.”

Josh Van Kampen: 16:45 And that’s what’s so frustrating. That’s not their job. Their job is to investigate and enforce. And I’m sad to say that that’s not what most people encounter. So that’s the position statement, rebuttal process. And then at that point, most EEOC investigators will stop investigating. And I use investigator in air quotes because some of them just read, they’ll read the position statement, they’ll read your rebuttal and will not lift a finger to do anything else to investigate. So how in the world, you just got fired, you don’t have access to personnel files to documents, to other people’s emails. You are coming to the table with a minimal amount of evidence most of the time.

Josh Van Kampen: 17:31 The EEOC has these wonderful tools. They can conduct what’s called a fact finding conference where they require the relevant decision makers to show up to be interviewed. They can go onsite to the employer and interview the alleged harasser or the manager and so forth, witnesses. They can ultimately subpoena documents and personnel files, main information. But in nine out of 10 cases, the investigator won’t use any of those tools and that’s why you might call them readers some of them instead of investigators.

Robert Ingalls: 18:06 So after this investigation has come to a conclusion, what’s the next step? What happens?

Josh Van Kampen: 18:14 Well for literally 95% of charges that are filed, the EEOC will issue what’s called a no cause finding. So a no cause finding means that they have “investigated” and determined that there is no cause to believe that your rights were violated. Don’t take it personally folks. Because-

Robert Ingalls: 18:36 95%.

Josh Van Kampen: 18:36 95% of people get that. In fact, one of my strongest cases against a local bank where a conservative federal district court judge in the Western district in Nashville called the case direct evidence, which is the strongest evidence you could possibly have, but the investigator at the EEOC wasn’t good enough for her. But it was good enough for a conservative federal district court judge? And that’s why the EEOC is so picky, and so demanding with what you’re supposed to marshal as an evidence. That’s why only 5% of these charges are ever found to have merit.

Robert Ingalls: 19:12 So it sounds like it doesn’t change your ability to pursue the case after.

Josh Van Kampen: 19:16 Right. We don’t care. As lawyers, we don’t care if the EEOC is going to issue a cause finding or not. And when we do, we literally like, let’s go get drinks every night. We literally would celebrate. I would call my other plaintiff’s lawyer friends in town and say, believe it, you know what happened? I got a cause finding.

Robert Ingalls: 19:34 Got some cause.

Josh Van Kampen: 19:35 And they will say, bullshit. And so, it’s remarkable when it happens.

Robert Ingalls: 19:41 So now with everything else in law, there’s a time limit. What’s the time limit after you get this letter?

Josh Van Kampen: 19:46 So it’s 90 days from the date that you received your right to sue letter. Once again, you got to remember when you received it. So if you got it and you didn’t write it on the envelope, received on this date, and then you wait more than 90 days, you’re in a pickle about saying, well, but I received it on such and such a date you don’t know, so write the date you received it on your envelope. The law is going to assume it took three business days to get to you. So if you don’t remember when you got it, assume three business days from the date it was mailed and you’ll be able to know when it was mailed because the EEOC envelope will have a postmark stamp. Usually, it’s on the upper right-hand part of the envelope.

Robert Ingalls: 20:28 Sure. All right. So 95% are no cause generally, tell us about that 5%. What’s the significance of a cause finding? I know it’s exciting, but past that.

Josh Van Kampen: 20:39 It’s rare, but most of the time it’s meaningless. So what happens if you get a cause finding? The employer is going to be required to participate in what’s called a conciliation. So a conciliation is like a mediation, but it’s not with a trained mediator. Your investigator is going to try to conciliate a settlement between the parties. And at that point, you do have more leverage because the employer counsel is going to be like, wow, a cause finding? So then your management lawyer is going to be like, well, this might not be good for court. And so you do see more settlements in the conciliation process, but the employer can also tell you to pound sand. They don’t have to settle if they don’t want to.

Josh Van Kampen: 21:21 So if the conciliation fails, it fails. Most of them do. And then at that point, the issue is, well the EEOC has a legal department and the EEOC has the option of actually taking the case as a plaintiff, and then you are what’s called an intervener. And so, we just had a trial here in the Western district this past year where we were representing our client, the intervener and the EEOC was a party. And we were grateful for their cause finding and for our EEOC trial attorney teammates. But the EEOC rarely, rarely, rarely, their legal department rarely takes a case.

Josh Van Kampen: 21:58 In fact, I was looking at the most recent data and out of 76,000 some charges, the EEOC legal department in the last fiscal year filed 200. So just to give you an idea, my little law firm, I have encountered it exactly, but we probably filed, let’s just say 25? 200 for the whole nation and they’ve got an army of lawyers? I mean, come on. And so this gets to the frustration that I have that my clients have with this agency, with all this money and good investigators too. And you know who you are if you’re listening to this, don’t be mad at me. And then for the other ones who have just done violence, in my opinion to the law and the standard that they applied to my clients and other workers, I sure hope it changes. It’s one of the reasons why I’m being so bold in calling this out because it has to change.

Robert Ingalls: 22:56 Yeah. All right. We’ve covered a lot of ground today. Thank you for your time, Josh. And thank you for spending a few minutes with us, listener.

Outro: 23:04 Congratulations for taking an important initial step in turning the tables at work. But this podcast is just an educational resource, it does not constitute legal advice and is no substitute for consulting an employment attorney about your unique situation before making legal decisions. Visit our website for more online resources and videos at ncemploymentattorneys.com or better yet, call (704) 247-3245 for a free initial intake interview, so Van Kampen Law can evaluate your case. Until next time, keep your head up and your wits about you.

Step Into My Office, You’re Fired

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This may sound familiar to some of you: you’re diligently preparing for a routine evaluation with your boss. You step into their office and an HR rep is there too. What’s going on? Before you have time to digest what’s happening, your boss is telling you that you’re being terminated. What just happened? You never saw this coming. You’re confused. And, you’re angry. Now, security is escorting you out of the building like a criminal. What are your rights? What should you do next?

On this episode of Walking Papers podcast, Attorney Josh Van Kampen takes us inside the mind of your company and tells you not only what to expect during a termination meeting, but how to be prepared, how to conduct yourself, what to do, and what not to do, after a termination meeting.

Attorney Josh Van Kampen tells us that he used to represent companies so, from his experience in the field; he explains why companies choreograph these termination meetings down to the last detail. Today’s talk aims to give you an insight on the best ways to approach meetings like these.

Highlights From the Episode

  • What to expect during a termination meeting (3:00)
  • Additional dark motives employers bring to termination meetings (3:52)
  • How to turn the tables on your employer in a termination meeting by deploying Attorney Van Kampen’s R.A.W. strategy (5:58)
  • Do I really have to submit to the security escort “walk of shame?” (10:52)
  • To record or not to record your termination meeting? (14:40)
  • How you can leverage your co-workers’ contemporaneous reactions to the termination for your lawsuit (16:19)

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For more information on how Van Kampen Law can help you, call 704-247-3245 or contact us online by filling out our confidential online intake form.

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The Walking Papers is a bi-weekly podcast by Van Kampen Law, a plaintiff-side employment law firm based out of Charlotte, NC, this podcast aims to give listeners, who are on the wrong side of some sort of situation at work, practical advice on how to turn the tables on their employers. This podcast is just an educational resource. It does not constitute legal advice and is no substitute for consulting an employment attorney about your unique situation before making legal decisions. Visit our website for more online resources and videos at NCemploymentattorneys.com, or better yet, call (704) 247-3245 for a free initial intake interview so Van Kampen Law can evaluate your case.


Read Full Transcript

Transcript

Intro: 00:00 Human resources, employee relations, the legal department, are aligned against you. Your employer has trained for this day, the day you’ve become an expendable number at work. There are robust laws that may protect you but unlike the company, you’ve not been drilled on how to wield them. You’re playing catch-up. There are pitfalls to avoid and countermeasures to deploy that may save your job or put you in the best position to negotiate a favorable settlement. Minutes matter, your words and actions matter even more. The Walking Papers podcast offers the first foray into learning how to turn the tables when you’ve been targeted at work. Knowledge is power. Let’s get started.

Sound Clip: 00:51 You heard of this thing, the Eight Minute Abs? Well, this is going to blow that right out of the water. Listen to this, Seven Minute Abs. Unless of course somebody comes up with Six Minute Abs, then you’re in trouble, huh? No, no, not six. I said seven. Nobody’s coming up with six. Who works out in six minutes? You won’t even get your heart going. Not even a mouse on a wheel. Good point. Seven’s the key number here. Step into my office. Why? Because you’re fucking fired.

Robert Ingalls: 01:23 Welcome to the Walking Papers podcast. I’m your host, Robert Ingalls And I am here with attorney Josh Van Kampen, the captain of the ship here at North Carolina employment law firm, Van Kampen Law. Today, we’re going to be talking about termination meetings, how to be prepared, how to comport yourself during such a meeting and what to do and not to do after the meeting. Today’s episode is titled, Step Into My Office, You’re Fired. Your manager has the script, here is yours. Josh, tell us about that.

Josh Van Kampen: 01:55 Gosh, Something About Mary, have they made a better comedy since then? And just thinking about that scene and remember it was about the Seven Minute Abs versus Eight Minute Abs. And yeah, but you got a problem if they come up with Six Minute Abs.

Robert Ingalls: 02:10 You can’t do it in six minutes.

Josh Van Kampen: 02:12 Right. That’s an iconic termination scene. Sorry, folks. I know it’s we’re off for a year right now, but hopefully a little levity will help you as well. But on these termination meetings, because I used to represent companies for about six years before I started representing individuals, they orchestrate these termination meetings. Word for word, HR, legal, managers, will figure out exactly what they want to say in these termination meetings and nine times out of 10, my clients are totally unprepared for these sort of meetings and no insight on how to act or what to do, what not to do. And so we’re going to arm our listeners today. If you’re in this unfortunate situation, which is a termination meeting, we’re going to put you in the best possible position.

Robert Ingalls: 03:00 All right. Tell us what to expect if perhaps we’re expecting a termination meeting.

Josh Van Kampen: 03:06 Well, usually you don’t, their whole strategy is to startle you. Have you ever noticed? I’m sure there are people that are listening this, thought they were going to an evaluation meeting or a one on one check in, you’re back in your office, you’re typing up your summary bullet points for your accomplishments, you walk in and HR is in your boss’ office and you’re like, what’s HR doing here? And well, you know why they’re there, of course. A lot of times folks are startled. And so it’s the rare situation where you walk in and you know it’s going to be a termination meeting and they don’t want you to know because they want you to excuse my language, fuck up or not press advantages that you can and that I’m going to teach you how to do in this podcast today.

Robert Ingalls: 03:52 When you say press advantages, what do you mean? What should I be doing in there? What is the employer’s objective in that termination meeting other than to fire you

Josh Van Kampen: 04:03 Yeah. Well the fire you to, to make sure that you don’t start throwing desks around. Other than that, it’s really it’s to do no harm to themselves. They don’t want to say anything in that termination meeting that is going to compromise their legal defense, if you see them. And so that’s why they literally have a script for exactly how they want to characterize your termination. Obviously they want to have a witness in there, that’s why there’s always two people and they want to provide as vague and squishy a reason as possible for the termination. The way that you prove discrimination a lot of times is by disproving their reason for the termination and that’s called establishing pretext. In other words, that the reason is bullshit. And what the employer says in that termination meeting is a stake in the ground. You were fired for this reason. And guess who’s going to attack that iteration of that reason later in court? That’s me.

Josh Van Kampen: 05:09 And so they don’t want to put their foot in their mouth or say something that will cause trouble later so they’re going to try to say as little as possible, as vaguely as possible. Now, a lot of times listeners will say, “But they have to give me a reason. Legally aren’t they required to give me a reason?” No. No they’re not. And they can give you a vague reason if they want to or no reason at all. But if they do give you no reason, I kind of liked that in a way too, because it shows, why are you hiding the ball? If this was a valid reason for termination, why are you not telling them why? That ain’t right.

Robert Ingalls: 05:44 Now you’re making up the pretext possibly here today in court.

Josh Van Kampen: 05:46 Oh yeah. They’re going to come up with a reason later. You’re absolutely right, Rob. Their objective is to basically do no harm to themselves in that termination meeting and get you out the door as quickly as possible.

Robert Ingalls: 05:58 What can I do to perhaps punch some holes in this strategy of theirs in this meeting?

Josh Van Kampen: 06:04 Yeah. I created an acronym, not very creative, but I did. It’s RAW. I want you to remember R-A-W. R for rationale, A for argue and W for who. Let me break down those things. Rationale, you will press them for a reason and insist on it. I gave 10 years to this company, sacrifice, blood and sweat. I’m entitled to know why, what did I do wrong? And you’d be surprised. A lot of times you will shake fruit out of a tree by doing that. Because even the manager is saying to himself, “He does deserve a reason.” And he does, it’s just decent. And so you should insist on the reason why you’re being terminated. And then so that’s the rationale. Get the rationale and then A, argue. Start arguing against why they say that they fired you and make your case, but argue without being an ass. Even if we have an awesome case to prove retaliatory discrimination for example, if you have acted disrespectfully or insubordinately and your termination meeting, they can well lose because they’ll say, “Well, even if we were wrong about the first reason for the termination.”

Robert Ingalls: 07:30 Look at this.

Josh Van Kampen: 07:31 “We sure as hell can fire him then because he was disrespectful and insubordinate.” You’re going to argue with grace and be really careful that you don’t shoot yourself in the foot. How do you argue your case in a termination meeting? Well one, employment record. If you worked there for 10 years and you’ve never been written up, point that out. If you are aware of coworkers of yours who were allowed to get away with a whole lot more than you or were poor performers or weren’t terminated, you should absolutely start saying, “Well yeah, what about Joe Schmo? You didn’t fire him and he did something worse than I did. Can you explain that to me? Why I’m being fired and he wasn’t being fired?” Also, you can argue about the lack of loyalty that they’re showing. That can sometimes prompt them to say, “Well, Bob, the reason why we’re not loyal is because you did such and such.” We’re getting them talking, even as you’re arguing, you’re not really arguing to convince anybody. You’re arguing to get them to keep talking and defending why they terminated you.

Josh Van Kampen: 08:39 And then the last thing, if you want to give me a cherry on top as your lawyer is that if you believe that your termination is discriminatory or retaliatory, say it, because if you don’t say it, the management lawyer is going to say, “Well Bob, isn’t a true on your termination meeting, you never alleged discrimination. It was only after you spoke to your attorney, Mr. Van Kampen.”

Robert Ingalls: 09:00 That you concocted.

Josh Van Kampen: 09:04 “That you suddenly concocted this retaliation theory.” Please let me shut him up by if you believe it, say it. And of course, they’re going to say, “That’s ridiculous. We would never discriminate. We have an equal employment opportunity commission policy that says we don’t.” Yeah, so if you can remember to do that, that’s a cherry on top for your lawyer so please do. And if you can think of explaining why you think that too, go ahead, but most important though, is to at least say that you’re concerned or you believe that it’s discriminatory.

Josh Van Kampen: 09:37 And then lastly, the W, RAW is who. It’s really important in cases later to identify who the decision makers are because when we’re starting to prove discrimination, the way that we do it sometimes is by showing that there were what are called legal comparators, who are your coworkers, who did something worse and weren’t fired. And in order to determine who a valid comparator is, you need to know who the decision makers are.

Josh Van Kampen: 10:07 And sometimes companies really screw up with their decision makers because if they, let’s say somebody to up the management chain is a decision maker and now it’s my job to prove double standard across comparators, I got a huge tree roots down from that upper level manager of other people that we can point to and say, “Oh yeah, but Joe Blow did worse.” He may not even be in my client’s department. Doesn’t matter because the decision maker, it was two rungs up and it encompassed other departments. And so, we’ve argued that in court and called it the decision maker tree where we’re going to go down and the higher it goes up, the broader the branches are out and the broader the universe of comparators.

Robert Ingalls: 10:52 Got you. All right. We’ve been through this meeting and we’ve attacked their defenses and now it’s over. One of the things, if you’ve ever worked in an office you’ve probably seen this, is the perp walk. That kind of walk of shame where security escorts you out. Is that something that you have to subject yourself to?

Josh Van Kampen: 11:13 Yes. I get infuriated. It’s hard enough to be fired from a job, especially one that you worked at a long time then to be treated like you can’t be trusted and oh, he may steal a stapler or oh, he’s going to get this off the laptop. And you already don’t feel like a person after you’re fired and when you’re treated like that, they look at you as a criminal and it hurts. Folks, it hurts. Everybody hurts. Try not to take it personally because this is the procedure, even though it’s ridiculous and know that if we do go to a trial later, juries don’t like that. And I will make ample use of that decision when I’m cross examining decision makers about why that was necessary.

Robert Ingalls: 11:59 It looks good for you if you behave well while the jury infuse them as perhaps behaving poorly to you.

Josh Van Kampen: 12:05 Yeah, be the consummate professional on the way out even as they’re acting really unprofessionally in how they’re treating you.

Robert Ingalls: 12:12 Yeah. Is there anything else I need to be thinking about after this? I’ve left the premises. Going to be probably quite a bit upset. Are there decisions I need to be making or not making in the wake of this?

Josh Van Kampen: 12:26 If we file a lawsuit, you are going to be deposed for probably an hour just on what you did and said on your termination date. And people have a lot of really bad instincts about what they want to do after a termination meeting, all of which are very harmful to your case.

Robert Ingalls: 12:44 You’re angry.

Josh Van Kampen: 12:45 You’re angry and you want to be heard and not all of these are fatal, but understand that every text message that you send on termination date to your wife, to your best friend, to your mom, to your dad, siblings, et cetera, you are going to want to vent. You are going to want to say horrible things about these people. Those text messages are going to be discoverable.

Robert Ingalls: 13:07 And they might be read in court one day.

Josh Van Kampen: 13:08 Yes, sir. Just call. Don’t text about your frustrations. Just talk about your frustrations.

Robert Ingalls: 13:15 Say it out loud.

Josh Van Kampen: 13:16 It’s better anyway and safer because you’re going to be driving. You shouldn’t be texting anyway. That’s one thing. And then once you get home, a lot of my clients, they want to write a letter to the CEO or call the ethics department and say, “This happened to me.” And that’s not normally a bad thing, if you’re not going to file a lawsuit but at that point you haven’t consulted with your lawyer. You don’t know the theory of your case. You may get something wrong in that document and guess what? Who here raise your hand as you’re listening, thinks that the CEO is going to intervene and say, “You, my management team are wrong and I’m going to reverse this decision.” Why do it? It’s not going to change anything and the ethics department’s no different than the HR department. They’re just there to vindicate. Don’t waste your time, just verbalize your frustrations and go talk to a lawyer.

Robert Ingalls: 14:16 Got you. Throughout this episode you’ve been mentioning things coming up that you said or that were said in certain meetings, how do you ensure that you properly remember and are able to articulate these things when the time comes?

Josh Van Kampen: 14:31 You mean in the termination meeting?

Robert Ingalls: 14:33 Sure. Things are said there. Should I be making notes of this? And then when I’m talking to people, take me through that.

Josh Van Kampen: 14:40 Yeah. Well, let’s start first with to record or not to record your termination meeting. And this assumes obviously you know that it’s, because you’re not going to say, “Hang on a second guys. Let me get my phone out, you want to record this.” That’s the Fargo reference. In the last podcast, I explained that I was addicted to Fargo. Whether to record or not, it depends on what state you’re in. In North Carolina, it’s a one party consent state. The general rule is that you can record a termination meeting even if the other side doesn’t know that you’re recording legally so you’re not going to get in trouble for it as long as everybody’s in North Carolina. But that doesn’t mean that it’s a good idea. You need to also consult the employee handbook or policies of the company.

Josh Van Kampen: 15:33 If the company has a policy that says that you are not authorized to record anything without the other party’s consent and you do that, in your termination meeting, you’re still an employee. And so at that point you have violated the company’s policy and so then at that point, the management attorney is going to argue what’s called after acquired evidence rule and say, “Judge, even if we lose and they prove discrimination, we should still have no liability for damages or back pay because we had grounds to fire him in the termination meeting because he violated our policy.” And the law on that is mixed, but I don’t want to be in that pickle. If the policy says you can’t record, don’t record.

Robert Ingalls: 16:19 Got it. And so let’s say that I am talking to some of my prior co-workers and they’re telling me different stories and are those things I need to be documenting as well?

Josh Van Kampen: 16:31 Yeah, definitely. If you’re a good employee, which most of my clients are, you are going to have your allies and colleagues from the company and also even customers from outside or vendors call and say, “This is so ridiculous that this happened.” Those are potential witnesses down the line. Their spontaneous reactions to your termination are authentic and juries give a lot of weight to them, so do judges and so we want to document those. If that’s via text or email, get them talking. Reply, even though normally you might not want to, Oh, I shouldn’t communicate with people. If they’re praising you, talk to them. Keep those text messages or emails. If it’s verbal, then take contemporaneous notes. We’ve talked so much about contemporaneous notes. Love them. You should do that if your coworkers call, you should also make contemporaneous notes of your termination meeting itself, using quotations for exactly what who said what and those meetings. You want to harvest all that goodwill and spontaneous reaction from your coworkers.

Robert Ingalls: 17:41 Perfect. All right. We have over a lot of ground here today. Thank you Josh for your time. And thanks for listening.

Outro: 17:51 Congratulations for taking an important initial step in turning the tables at work but this podcast is just an educational resource. It does not constitute legal advice and is no substitute for consulting an employment attorney about your unique situation before making legal decisions. Visit our website for more online resources and videos at ncemploymentattorneys.com or better yet, call (704) 247-3245 for a free initial intake interview so Van Kampen Law can evaluate your case. Until next time, keep your head up and your wits about you.