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 counter measures to deploy that may save your job or put you in the best position to negotiate a favorable settlement. Minutes [00:00:30] 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.
Robert Ingalls (00:45):
Welcome to episode one of The Walking Papers podcast, where we aim to combat employment, discrimination, retaliation, and harassment. I'm Robert Ingalls and I am here today with attorney Josh Van Kampen. How you doing, Josh?
Josh Van Kampen (00:59):
I'm doing great.
Robert Ingalls (01:00):
[00:01:00] All right, perfect. So let's jump right into it. This is episode one. Tell us why you decided to start this podcast.
Josh Van Kampen (01:08):
That actually relates to a why I decided to become a plaintiff side employment lawyer. So back in Chicago, I worked for what was considered the Darth Vader of defense firms and in a city that was very acrimonious in terms of how the bar practiced to begin with, and I should have known that I wasn't going to fit in there when the managing partner explained that he needed to [00:01:30] cut my arm off and replace it with a mechanical arm and call him Daddy.
Josh Van Kampen (01:35):
But nonetheless, I stuck it out there for six years, and in the course of that time I realized that employees were not well represented by the plaintiff's bar for the most part, and also that there were some really fatal mistakes and lost opportunities that employees had before they were terminated that if they just had received some practical advice while it was going on, they really could have tipped [00:02:00] the scales in a good way for them down the line in litigation.
Josh Van Kampen (02:03):
So in this podcast, this is not for lawyers. Lawyers can stop listening. This is for the person who's under the gun at work. They feel like they're being targeted and managed out, and with so many questions that I hope this podcast will be helpful in answering.
Robert Ingalls (02:19):
Right on. When you first started practicing, did you envision that you may one day practice on plaintiff's side? Like what was the longterm vision?
Josh Van Kampen (02:28):
Yeah, I pretty much knew [00:02:30] that from the beginning. I knew when I was feeling guilty as I was having cases dismissed or unions defeated that it wasn't for me and my Ivy League neighbors were literally jumping in the hallway when they beat back an employee side case, and so it was a deal where I would stomach it as long as I could, get trained up by one of the best firms in the country, and then turn it to a good use from the dark side to the, to the good side.
Robert Ingalls (02:58):
Nice. So what do you [00:03:00] think is responsible for that, I would call it maybe a gap in representation that the plaintiff side sees?
Josh Van Kampen (03:06):
I don't know. There are obviously some really good employment lawyers here in town, for example, here in Charlotte, but there aren't enough of them. And so there are a lot of good cases that go without any representation at all, and so what we try to bring to the table at my firm is a large firms sophistication and savvy to everyday people who are on the wrong side of something bad [00:03:30] that happened at work.
Robert Ingalls (03:31):
All right. To break into the episode, when you sent me the early writings about it, the title of this episode made me chuckle. I'll let you explain it.
Josh Van Kampen (03:41):
It's "Tales From the Crypt," which is a show dating back to my childhood in the late '80s, early '90s when I graduated high school, and really what it has to do with is the fact that there's some serious mistakes that have been made in unsuccessful employment cases, [00:04:00] and so we're going to excavate some of these dead bodies so to speak and try to prevent that from happening to the people that are listening to this podcast
Robert Ingalls (04:09):
Very good, and that show scared me quite a bit. I think I was like eight years old when it came out and we would stay up after my parents went to bed and it terrified me.
Josh Van Kampen (04:17):
Right.
Robert Ingalls (04:17):
So that brought back a lot when I saw that. So I know that every client that comes in has a unique story, what are some of the mistakes that you've seen made? Because earlier you said if people had talked to me first, if they had an opportunity before [00:04:30] things happened, what are some of those common mistakes you've seen?
Josh Van Kampen (04:33):
I think it all really, it's basically like a psychology lesson, and it has to do with people's decision makings and their mindset while they're under the gun and being targeted at work, and one of the things is denial. You always want to see the best in people, the best in your manager, the best in your company, and there will inevitably come a time in your career where that is not the case and you become a number and where you become a target, and I think [00:05:00] a lot of people are slow to pick up on that. They come into my office and if I were a doctor it would be like somebody coming in with leprosy with an arm and half a leg falling off, and I would be like, "Why are you coming? Didn't you notice that your leg fell off or your arm fell off?"
Robert Ingalls (05:15):
It's a little late now.
Josh Van Kampen (05:16):
Right, and it might not be too late, but the notion is I think that denial can result in people incurring some injuries to their future case that are hard to overcome.
Robert Ingalls (05:27):
Sure.
Josh Van Kampen (05:29):
You know, it's denial [00:05:30] and then also pride, especially here in the South. I've had folks come in with good cases and say, "Well, I just never thought I need to come to a lawyer." You know, as if we practice some sort of dark arts, you know, Voodoo dolls or things like that. Like they should feel dirty about coming to the office.
Robert Ingalls (05:50):
Right. There is a certain stereotype.
Josh Van Kampen (05:52):
Oh, sure.
Robert Ingalls (05:53):
I think you're doing well to overcome it, but ...
Josh Van Kampen (05:55):
Well yeah. I think people enjoy working with our attorneys because [00:06:00] we're just regular people, trying to try help people in the community or who are in a bad spot. But I think that pride can get in the way, and then procrastination. I mean, unfortunately the federal laws that pertain to employment situations have a 180-day statute of limitations period, which is really short. There is no hitting the snooze button when it comes to having a successful employment case.
Josh Van Kampen (06:28):
Then finally is [00:06:30] I think sometimes we have people who just wait. It gets so bad at work before they come and talk to a lawyer and they've effectively snapped. You have a client coming in and saying that they ate their supervisor's face and had it with a can of fava beans and a bottle of Chianti. That never really happened, but it probably will at some point my career.
Robert Ingalls (06:56):
That will be its own episode.
Josh Van Kampen (06:57):
But that's the sort of thing that happens too. It's just that, [00:07:00] don't wait until you're at your breaking point. Go to a yoga class, then come and see me or another employment lawyer.
Robert Ingalls (07:07):
Right. Get your meditation on, relax.
Josh Van Kampen (07:09):
Right.
Robert Ingalls (07:10):
So if an employee's having some concerns, what are some of the things or some of the lost opportunities that they could be doing to better their position?
Josh Van Kampen (07:18):
Right. When an employee gets terminated, it is not an exaggeration to say that they're essentially goose stepped out of the office. It's like they're some sort of convicted felon. There's no [00:07:30] opportunity to gather your belongings, there's no opportunities to print anything, save anything. You're terminated and you're oftentimes escorted out, like I said, in almost like a perp walk. Your computer knows you're terminated before you do, and so your access and things like that are all cut off once the decision is made to terminate, and in that computer is a potential treasure trove of information and evidence that could be helpful to your case.
Josh Van Kampen (08:00):
[00:08:00] I think people have the incorrect perception that you hire a lawyer and then a lawyer can write a letter and say, "Company, will you please turn over these emails and these documents?", and we don't have that. I mean, you have to file a lawsuit and have the ability to send over document requests or subpoenas to get records, and this can be 18 months after somebody has been fired. So you have an opportunity as a current employee to harvest evidence we won't get to for 18 months after you have been fired. [00:08:30] It's important to take advantage of that opportunity.
Robert Ingalls (08:33):
Are these the kinds of things that a case could turn on?
Josh Van Kampen (08:36):
Oh, sure. I mean to me, as good a lawyer as you're going to hire, even if you hire the best, cases are often won or lost on the documents, the documents that are used in depositions to maneuver witnesses for example, and the sooner we have documents as your lawyer, the better.
Josh Van Kampen (08:52):
So for example, it's not uncommon for documents after the fact to be destroyed or even altered, [00:09:00] and when we have documents that were contemporaneous from when everything was going down and all of a sudden those documents that disappeared after a lawsuit's been filed, you know that that can turn the tables on who's going to win and who's going to lose?
Robert Ingalls (09:14):
Sure. So in going about gathering these documents, I'm sure that someone will be thinking, "Okay, A, how do I go about getting them in general?" But then the second concern I think might be where is the line? [00:09:30] Like how do I not get in trouble for gathering potential evidence that I want to perhaps use against my employer later?
Josh Van Kampen (09:36):
Well, first of all, in North Carolina you have the right to request a copy of your personnel file if you're a current employee, and that is something that an employee should definitely do, because it certainly happened before in my cases where personnel files have memos added after the fact or even write ups that are added after the fact, and if we just had an image of what the personnel file [00:10:00] looked like during the employment, we could catch them in that, that stacking of that personnel file. My advice is always to get a copy of your personnel file, and listen, it's a little weird for somebody to go to HR and say, "Hey can I get a copy of my personnel file?" But don't worry about weirdness, you know, worry about protecting yourself.
Robert Ingalls (10:19):
Is there any reasonable explanation for that?
Josh Van Kampen (10:23):
Sure, you could make it that you're interested in what sort of benefit elections you have, and just say while you're [00:10:30] at it, you just wanted to review it in its entirety, and then if they don't give you a copy, take pictures of the personnel file with your phone. I mean, I've got a case right now, literally where an employee did that, a client of mine and then I was sent the personnel file by the opposing counsel and it had a bunch of trash in it that was not in the file two weeks before. You know that's blockbuster evidence.
Robert Ingalls (10:54):
Yes. That's something you want the jury to see.
Josh Van Kampen (10:56):
Oh yeah.
Robert Ingalls (10:57):
So if I'm gathering that information, where [00:11:00] is a good place to save it, because my gut tells me I probably don't want to save it on my work computer.
Josh Van Kampen (11:05):
Yeah, and that becomes ... it's a difficult judgment call of what can you permissibly gain access to and save or print? You want to make sure that you don't get over your skis in building evidence. For example, don't gain access to documents or reports that you're not supposed to have, but anything that you do have the ability, [00:11:30] just in the normal course of business to have access to that pertains to your employment, for example a sales report and that may have information on the sales productivity of your peers, that's something that you have in the normal course of business. The question is how to transport that in a way that minimizes any liability you might have.
Josh Van Kampen (11:48):
So one is you can assume now that forensically your computer's going to be examined after you've been terminated, and so emailing documents to your private email [00:12:00] from your work email is not a good way to do it. It's so easy to be tracked. So some alternatives to that might be, for example, if you have a Dropbox online Cloud file, the ability to just save onto the Cloud for example by printing. Then you have options when you print to save as, or put it here, put it there, would be one way.
Josh Van Kampen (12:24):
Another option is your phone, just taking pictures of documents is completely untraceable [00:12:30] if it's on your private phone, but all along that we want to respect the company's right to confidential information and that sort of thing. Once information is transported, we want to be careful with it and guard it. I would recommend if it's saved somewhere on the Cloud that, for example, that it's password protected. Same thing with the photos, that you put it in a file again that's password protected. If push comes to shove later, the company finds out about these things and you're able to show that you were a responsible custodian [00:13:00] for that information and that the company wasn't damaged by your possession of it, you help guard your flank.
Robert Ingalls (13:06):
Sure. It sounded like you said they have a record of all of your emails and your actions on your computers and things like that. Has that ever come up to bite you in the middle of a case before?
Josh Van Kampen (13:18):
I've had counterclaims filed against clients for having this report or that report, but the overwhelming majority of these cases settle, and those counterclaims are just kind of little peanuts on the [00:13:30] other side of the scale as you're negotiating. So we don't get all bent out of shape about counterclaims like that, especially if we've closely, and our clients have closely guarded the information.
Robert Ingalls (13:40):
Sure. The first thing I thought of was just all of the ridiculous Skype conversations I had on work computers in my 20s that I'm glad were never read in court.
Josh Van Kampen (13:51):
Right. They're also going to look at your internet history, right? Do I need to say that?
Robert Ingalls (13:57):
Message. What others [00:14:00] ways would you recommend going about gathering information?
Josh Van Kampen (14:05):
Well, another resource is your peers. So a lot of times the way that you prove discrimination is by showing that you've been subjected to a double standard or a higher performance standard. If you just have innocuous conversations with your peers about whether or not they hit their sales numbers, for example. "Did you get put on a performance improvement plan last month? I know you had a rough month. I did too." Those are great [00:14:30] data points that you can provide your attorney later, otherwise we wouldn't be able to gain access to that information, like I said, without deposing these people 18 months from then. Then you want to take contemporaneous notes of those conversations and uncontemporaneous notes.
Josh Van Kampen (14:46):
James Comey, the former FBI director, knew a thing or two and that's what he did with President Trump. He wasn't going to record the president right? But he went home and he wrote memos to file and those are admissible in court, and [00:15:00] in my experience, credited by judges and juries. So the contemporaneous note taking is really critical.
Robert Ingalls (15:08):
What is ... if someone's in a bad position, they really feel like they're being harassed, they feel like they might be getting fired soon, is resigning a consideration?
Josh Van Kampen (15:21):
Can I just say no, never do that. I would rather have an employee come in and say that they were caught urinating in their supervisor's cup. [00:15:30] Maybe we could do something with that, but not if he resigned. The overwhelming majority of situations with a resignation is there's very little we can do because we have to show that the work environment was so intolerable that a reasonable person or virtually any person in the community would have resigned because it was so bad, and you never want to be digging out of that hole. You want to be saying you were wrongfully terminated, not having to justify why you resigned.
Robert Ingalls (15:59):
Gotcha. [00:16:00] So what if someone's in a position, they come to you, and they're in this position where it's getting overwhelming, and they feel like they don't have any other options? Is there anything else they can do?
Josh Van Kampen (16:09):
Well, in that sort of situation, we can certainly sort of parachute in with a letter to the company attorneys explaining that there's this situation going on. That's one option. You know, another thing in the employee's playbook is they may be entitled to take medical leave under either the Family Medical Leave Act or the Americans with Disabilities Act, and [00:16:30] you know, we'll cover rights under those statutes in another podcast. Those are excellent sort of mini-vacations. I mean, they're medically necessary, right? But they get you out of the situation and can help you get your head straight. Then the added benefit to that is you're protected from being retaliated against for exercising your rights and so it can add an additional claim that you wouldn't otherwise have.
Robert Ingalls (16:57):
Perfect. Starting to build the case. All right, well we've covered [00:17:00] a lot of ground here today. Is there any last words you want to leave on?
Josh Van Kampen (17:02):
I hope this was useful for folks, and in each podcast we're going to be doing in the future, I'm going to try to just keep it away from a lot of legal analysis and focusing more on just practical advice for people who are on the wrong side of some sort of situation at work.
Robert Ingalls (17:17):
All right. Thank you sir. Any of the relevant information we discussed you can find in the show notes and on the blog.
Outro (17:25):
Congratulations for taking an important initial step in turning the tables at work, [00:17:30] 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.
