Have you ever heard the advice, “write an angry letter if it makes you feel better, just don’t send it?” The same is true in employment law. Write a response or rebuttal to your employer for a disciplinary action or termination of employment. Get it all out. Just don’t send it to your employer! In all of the years that I have been practicing employment law, I have never experienced a helpful employee rebuttal. The need to be right, or have the last word, often leads people to say things they can’t take back. I can promise you, if you submit something in writing, it is more likely to be used against you than in your favor.
Let’s make one thing clear---the responses and rebuttals to which I refer are not those requested by employers as part of workplace investigations or inquiries. The failure to cooperate during these proceedings is called insubordination and will likely create a different type of problem for you. The responses and rebuttals I am talking about are written items like emails threatening actions such as reporting your employer to OSHA or the IRS, bad-mouthing your employer in social media, or even making threats of physical harm. I am also talking about point-by-point rebuttals of disciplinary actions, performance reviews, and coaching. Some people tell me that they “wanted something in their personnel file with their side of the story.” Others want to “explain” what happened. And, unfortunately, some are just submitted without any thought at all.
As an attorney, whenever I see these documents, (which sometimes consist of multiple single-spaced pages), I cringe because I know there will be something in there that will likely hurt your lawsuit. If you feel the need to rebut or respond to your employer, go ahead and write everything down. But do not turn it in to your employer. On the top of the page, write: “Notes For My Attorney” and keep it in a safe place.