Hi Reader,

This week on the Gentle Power Podcast (gentlepowerpodcast.com), we had the pleasure of hosting Justin Clark of JLC Employment Law. Justin has been a lawyer for over 11 years, spending most of his career in employment law. He started on the defense side representing companies, moved in-house to handle employment litigation at two post-IPO tech companies, got laid off himself, and then started his own firm representing employees against their employers.

We were really excited to finally have an employment lawyer on our show, as in our Q&As and on client calls, we often get questions where our answer starts with "we're not lawyers, but..."

These last few months we've spoken with many people impacted by layoffs, and a common story we’d hear is that they felt like they were unfairly targeted, being set up to fail, and in some cases, had experienced incidents in the workplace that would help bolster their case to negotiate their severance agreements or even pursue legal action.

But what actually gives someone a legitimate case? Is it enough to have a story to back your case, or do you need documentation proving your story? How should you go about collecting this documentation, especially if your employment agreement has conditions that you can't take company materials with you when you leave the job?

There was so much juice in this episode (from how to think about collecting documentation, what to include in that documentation, can you really get blocklisted from working at companies within your industry, what happens during background checks, what do companies ask when they speak to your references, and beyond) that we’re preparing several future newsletters on it. Stay tuned!

If you don’t want to wait, listen to the full episode here: YouTube | Spotify | Apple​

*Disclaimer: Justin is a lawyer, but he's not your lawyer, and nothing here is legal advice. Justin is barred in California, which has stronger employee protections than most states, so always check the local laws of where you actually work.

1. Unprofessional and unlawful are two different things

In many of Justin’s intake calls, people will share with him a well-documented history of being treated badly, yelling, shouting, complaints they filed with HR at the time, and they assume the paper trail is enough.

But being treated unfairly or unprofessionally doesn't necessarily mean that you have a case.

What employment law actually covers is whether you engaged in protected activity, and what was driving the behavior. As Justin put it regarding someone yelling at you, "on its face that might be deemed as unprofessional, but it might not be unlawful."

However, if that same yelling is motivated by discriminatory animus, because you're a woman, because you're gay, because of your race or your religion, you're looking at a completely different case.

Note that you may have a stronger case if you’re part of a protected class, but you may still be able to negotiate a better severance package even if you’re not part of a protected class. Companies know that it’s expensive to fight a lawsuit, even one that doesn’t have legs. That’s why they issue severance packages to begin with. That’s leverage in and of itself.

Note: this is a sponsored newsletter. If you check them out below, it means a lot to us and helps keep our newsletter going!

2. How to document incidents

When reporting incidents to HR, most people report what happened. Justin's advice is to also report why you think it happened.

What most people write: "In Tuesday's team meeting, my manager raised his voice at me in front of six people. This was unprofessional and I'd like it addressed."

What Justin would have you write: "In Tuesday's team meeting, my manager raised his voice at me in front of six people. I believe this is happening because I'm a woman. He does not speak to anyone else on the team this way."

In his words: "it's really important that you isolate and identify why you think this is happening." He'd have you frame the complaint in the protected categories: gender, sexual orientation, race, religion. That second version puts your protected category into the written record, which is what makes the complaint useful to you later.

3. Put it in writing

In job offer negotiations there are real advantages to keeping certain things off the record, so we asked Justin whether the same logic carries over into workplace complaints. Justin said it usually doesn't. "When you have written evidence, that's the strongest type of evidence."

When a complaint is only ever expressed verbally, it turns into a dispute over what was actually said, which Justin deals with regularly because so many of these workplace conversations happen verbally in meetings or sidebar conversations. It devolves into he said, she said, and then a jury has to decide who to believe.

Your channels are HR in writing, your supervisor or anyone with supervisory authority over your role, and the anonymous whistleblower line many companies have, which is usually spelled out in the code of conduct or the employee handbook.

If you already complained and never wrote it down, that's not fatal. "Certainly don't feel discouraged if you only did it orally." That might still help, it’s just not the strongest type of evidence.

4. The pros and cons of being a whistleblower

A lot of people hesitate going the formal whistleblower route because they don't want a permanent record showing that they complained. Justin's opinion is that if you do it through the whistleblower hotline, it should be anonymous and your handbook should say so. Reporting through HR does escalate things, since HR will know and may open an investigation.

That same escalation is what protects you later. When you document something you reasonably believe is unlawful, you may get formal whistleblower status (remember to check your local laws), and it's often illegal to retaliate against a whistleblower by firing them or by handing them a negative performance review that leads to their termination.

5. At a 5-person startup, discrimination laws are harder but harassment law still applies

Alex asked about the tiny company scenario. Let's say you're one of five people at a pre-seed startup and the founder says something blatantly discriminatory to you in a meeting.

In California the operative law is the Fair Employment and Housing Act (FEHA). On harassment, FEHA applies to employers with two or more employees. On discrimination, the threshold is five or more.

So at a four-person company, the discrimination claim gets harder while the harassment claim is still available. Justin said to look hard at the harassment angle: pregnancy harassment if there are disparaging comments about the pregnancy, race harassment if the comments are about how you look or dress.

Justin covered much more than what we covered in this newsletter, including what you can take with you when you leave a job, what a background check actually looks at, and how severance negotiations really work. Those are coming in the next few newsletter issues.

In the meantime, you can listen to the full episode: YouTube | Spotify | Apple​

Connect with Justin on LinkedIn here or visit his website: jlcemploymentlaw.com​

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Warmly,

Gerta & Alex

Founders, YourNegotiations.com

P.S. Are you job searching or have upcoming negotiations?

If you have an offer coming or are mid-process, we’re always happy to help you think through how to approach it. Book a free call here: https://calendly.com/alexhapki/call​

P.P.S. Know someone interested in negotiations?

Send them our way and we’ll thank you with $250 for each person who becomes a client. No cap.

A quick intro or an email to alex@yournegotiations.com works.