Preserving evidence for a future claim against your employer

Mar 21, 2019 2:56:24 PM / by Barbara Bonar, Esq.


Entrepreneur making a phone call while reading a document in his office


By the time a client comes to us after losing a job, the documentation of his or her potential legal claim has sometimes not been considered. In situations of harassment, discrimination, or other illegal activity, if the client has not secured and preserved such evidence while employed, recreating it can be quite challenging. On the other hand, if the client has secured it, the likelihood of his case’s success greatly increases.  


Below are some considerations for holding on to important documentation of your claim while still employed.


First and foremost, if you find yourself in a situation of being harassed, discriminated against, or otherwise being treated illegally, begin keeping your own copies of documents that relate to your harassment, discrimination, or other illegal conduct. In today’s world, this includes not only file documentation, but also emails, photographs, text messages, and social media messages that you receive from your co-workers, bosses, or other persons, and that relate to your potential claim.


In addition, we suggest that you begin keeping a home journal of each and every instance of harassment, discrimination, or other illegal conduct, with as many details as possible, and as time allows. Journaling the events as they take place is not only important for your future recall, but is also  beneficial to victims of harassment or discrimination in processing the horrific events so as to better share their story with others in the future, including an attorney, therapist, or even a jury.


As an example, assume that one day during your work shift you are harassed by a co-worker. This co-worker makes sexual comments towards you that you find to be highly offensive. The very next week, the same co-worker proceeds to escalate his behavior toward you, and physically grabs you on your chest.


In your journal, you would want to jot down the who, when, where, why, and how:


  • WHO - including the harasser’s job title and current relationship status with you, whether immediate or indirect supervisor or co-worker. Also list the names and job titles of any individuals who you think could act as witnesses. 
  • WHEN - Both date and time.
  • WHERE - Actual location in the office or facility. 
  • WHY - List any reasons you believe the incident may have been initiated by the harasser. Was there anything significant that happened at work that day? Any information you possess that might provide background information is also helpful. 
  • HOW - Write down exactly what the harasser said to you that you found offensive or sexual in nature and the manner in which the harasser made the comment. Did he/she threaten you, or express any gestures in addition to the inappropriate comments? Specify how and where on your body the harasser touched you and for how long.


Also in your journal, keep track of any communications that you have with your employer’s supervisors, managers, or human resources personnel in connection with any of the illegal conduct you complain about. 


We understand it is often difficult for our clients to tell their stories. Yet, the more specific our clients can be in articulating the details, the more powerful and understandable is their claim.


If it becomes obvious that you are being set up for termination, begin preparing for what might become a quick exit. Knowing you may be suddenly locked out of your computer and all access to any information, make sure you have preserved all copies of your complaint(s), the company’s responses to your complaints, as well as any other pertinent information and documents related to the situation, such as harassing e-mails, questionable texts, and other potential evidence.


Keep in mind that although you are generally not permitted to remove any materials that belong to the company, you do have a right to preserve documents that relate to your potential legal claim (e.g. copies of emails documenting your complaints). Do not take documents that are propriety to the company, confidential, or for which you have signed a confidentiality agreement.


Preserving evidence is extremely important for bringing a future claim against your employer. Also, in the course of protecting your legal claims, take care of yourself. If you are suffering from stress or anxiety due to working in a hostile work environment which you believe is affecting your health, be sure to contact your doctor for help. 


If you have more specific questions or concerns, contact an attorney for further advice on your potential claim. Our attorneys are always available to hear your story and answer any other questions you may have regarding what we know to be this very difficult time. Call our office at 859-431-3333 to speak with an attorney or to schedule an appointment. 


Topics: Sexual Harassment, Workplace Discrimination, Hostile Work Enviornment, Evidence of Sexual Harassment

Barbara Bonar, Esq.

Written by Barbara Bonar, Esq.

Barbara Bonar has more than 30 years' tenure as a licensed attorney and nationally recognized in all issues regarding employee/employer relations, including whistleblower claims, workplace standards, executive contracts, discrimination, harassment, retaliation, conflict resolution, wage and hour laws, employee benefits, and personnel policies & procedures.