By: Francine Foner, Esq. and Ty Hyderally, Esq.

Not all issues at work rise to the level of a violation of discrimination or retaliation laws, or constitute a “hostile work environment” under the law.  However, if you feel that you are being targeted or retaliated against because of your race, age, disability, religion, or other protected characteristic, or that you have been retaliated against because you complained about illegal activities of your employer, there are certain things you can do to be proactive. The following are some tips for employees facing workplace concerns, but are not legal advice, are not intended to be an exhaustive list, and may vary based upon an employee’s particular situation.

Document Events

Keeping a contemporaneous written diary of the events that are going on in the workplace can be helpful to support your claims and memorialize events you may otherwise forget as time passes, such as who else was present at an event.

Preserve Evidence

If you have sent or received text messages or emails that are relevant to issues that are occurring in the workplace, preserve those by printing them out. It is also best to retain any cell phones which you have used to send or receive text messages that relate to your claims. However, you should use caution before forwarding emails from your work email to your personal email, or using your company computer or work email to send emails to yourself or anyone else. Doing so could violate company policy, and can be visible to others in the workplace. You also should not print out or remove from the workplace any company information, or any proprietary or confidential information.

Consult with Counsel Sooner Rather than Later

You may think that you do not need to consult with an attorney about workplace issues until something bad happens to you – such as discipline, suspension, demotion or termination. However, that is often a big mistake.  Speaking to an attorney early on when the work environment is changing or you feel that you are being discriminated or retaliated against can assist you in taking the proper actions and avoiding saying or doing things which could ultimately hurt any potential claims you may have.

Avoid Gossiping or Making Disparaging Comments

Oversharing with co-workers can come back to haunt you. This includes conversations as well as electronic forms of communications, such as with Slack, What’s App, text messages, emails, etc. Consider also that anything you put in a text or other electronic message or email is not private and will be something that will eventually be read by others. Keep in mind that anything you are putting in writing may one day be read aloud by an attorney representing your employer, and may even be presented to a jury hearing your case. That is not to say that you should not put your complaints in writing to the proper individuals, such as individuals working in Human Resources. Rather, that is something that you can discuss with an attorney by consulting with an attorney early on.

Maintain a Professional Demeanor

Although it may be difficult to remain above the fray, you should maintain a professional manner at all times, and comply with company policies and supervisor directives (other than being asked to participate in unlawful or unethical actions). You should also refrain from acting in any sort of belligerent manner out of anger or frustration, as such behavior could be considered misconduct and harm or even destroy a future potential claim.

What about Recording Conversations?

New Jersey is a one-party consent state, meaning that a person may legally record a conversation if they are a party to the conversation without disclosing that the conversation is being recorded. However, this only applies if both parties are in New Jersey (or another one-party consent state) while the conversation is happening. Nonetheless, before secretly recording your conversation, you should know that ultimately that recording will need to be produced in any future action against your employer. If the conversation does not go as planned, you are stuck with it. Further, if you were to then delete a conversation that you did not like, that could be considered spoliation of evidence which would severely damage your case. Also, while not illegal, taping a conversation with your employer or another employee may still violate a company policy, which could be harmful to your claim.

While the above are some examples of steps that an employees can take to strengthen any potential claims they may have against their employer, they are not legal advice and are not intended to be an exhaustive list; some situations may involve particular considerations that alter the recommended course of action. Employees who are experiencing harassment or workplace discrimination or retaliation are wise to consult with counsel early on, so that they can receive proper guidance on their particular situation.

En nuestra firma hablamos español. This blog is for informational purposes only.  It does not constitute legal advice, and may not reasonably be relied upon as such.  If you face a legal issue, you should consult a qualified attorney for independent legal advice with regard to your particular set of facts.  This blog may constitute attorney advertising.  This blog is not intended to communicate with anyone in a state or other jurisdiction where such a blog may fail to comply with all laws and ethical rules of that state of jurisdiction.