If you have been written up at work unfairly, you can write a rebuttal letter to challenge your employer’s narrative. The letter can also include evidence that the allegation is pretextual, which can help in a subsequent lawsuit for retaliation or wrongful termination. If you are a public sector employee, you may also have a civil rights claim.
What is an employee write-up?
An employee write-up is a formal, written warning that you have violated workplace rules. It often follows a verbal warning. You can get written up at work for a huge variety of issues. Just a few include:
- harassing a coworker,
- absenteeism,
- leaving work too early,
- lack of production,
- lack of professionalism,
- violating a company policy, or
- insubordination.
In some cases, the write-up will be legitimate, and accurately portrays recent events. In others, though, the write-up can be inaccurate. Occasionally, the written reprimand is a false allegation that is designed to make a pretext for terminating you.
If you suspect that the write-up is illegitimate, you need to respond appropriately. Taking the wrong steps can hurt your case later on.
What should I do if I have been given a written warning?
If you have been written up at work, there are several things that you should do:
- do not respond aggressively,
- learn your employer’s reason for writing you up,
- considering hiring a lawyer,
- gather evidence that refutes your employer’s justification,
- write a rebuttal letter,
- get your rebuttal letter into your employee file, and
- consider filing a lawsuit.
1. Do not respond aggressively
It is easy to act in ways that you regret after being written up at work. Barging into your boss’ office and demanding an explanation can be very enticing.
However, it can also needlessly escalate the situation. Worse, if the write-up is legitimate, reacting aggressively to it will likely get you fired. If the write-up is illegitimate and pretextual, your aggressive response to it can be used to justify your termination, instead.
Staying calm and keeping a level head is very important after being written up at work. If necessary, go for a walk or take the rest of the day off if you can.
2. Figure out your employer’s story
The next step is to learn why your employer wrote you up. You need to know why you are being disciplined before you can make an informed decision about how to proceed. This generally requires:
- going to the human resources (HR) department to read the written reprimand, or
- calmly asking your supervisor or the person who wrote you up to explain why they did so.
In some cases, you will learn that the reprimand is reasonable.
In others, you will find that it is baseless, lacking context, or that the details are exaggerated. If this is the case, it may be wise to take steps to protect your future.
3. Consider hiring a lawyer
If the write-up seems pretextual, your job could be at risk. By hiring an employment attorney, you can get the legal guidance that you need to protect your professional future. Getting fired does not just mean that you lose your job; it can also make it more difficult to get a new job in your upcoming job search.
4. Gather evidence that challenges your employer’s reasoning
A good lawyer can also help you gather evidence that undermines your employer’s rationale for writing you up. That evidence can come from:
- emails between you and your supervisor or coworkers,
- recorded statements by witnesses or coworkers,
- security footage,
- your employment contract or job description, if your employer is accusing you of violating it or company policies,
- the requirements of any performance improvement plan (PIP) that you received with the write-up,
- strong performance reviews, or a lack of prior poor performance evaluations, and
- contemporaneous notes that you made.
Anything that proves your side of the story can be useful.
5. Write a rebuttal letter
If you have uncovered evidence that your employer’s reprimand is pretextual or that it is inaccurate, the next step is to write a rebuttal letter. This letter should do 4 things:
- summarize your employer’s justification for writing you up,
- state what really happened or describe the context that is missing from your employer’s story,
- support your version of events with the evidence that you have obtained, and
- explain how your evidence contradicts your employer’s version.
If you have hired an attorney, he or she will likely write the letter for you.
Keep a copy of the rebuttal letter. Also keep a copy of any evidence that you provide to support the letter’s conclusions.
6. Get your rebuttal letter into your personnel file
The next step is to get your rebuttal letter into your personnel file. The process for doing so is going to depend on your employer’s policies. However, you will generally have to either:
- submit it to your supervisor, or
- bring it to the HR department.
It is generally wise to mail it via certified mail. This way you will have a receipt that it was delivered. This proves that it was received. It also produces a paper trail.
Employers generally have policies about what to do when a disciplinary action is challenged. These policies often forbid the outright refusal to accept a written rebuttal letter. They generally require the letter to be included in your personnel file, alongside the write-up that spawned it.
7. Consider filing a lawsuit
After you have rebutted your employer’s justification for writing you up, several things can happen:
- the write-up stands and you are disciplined,
- the write-up is kept in your file but no disciplinary action is taken,
- you are told that the write-up is rescinded and removed from your personnel file, or
- you do not hear any updates.
If nothing happens for a reasonable period of time, it can be wise to follow up. This is especially true if you do not want the write-up in your file. If you are content with not facing disciplinary action, following up may not be necessary.
If you are disciplined or if the reprimand is not removed from your file, you may have legal recourse. Depending on the circumstances, there are several different lawsuits that you can file against your employer in California.
What lawsuits can I file?
The specific lawsuit that you can file will depend on several factors, such as whether you:
- are in a protected class,
- were terminated,
- suffered an adverse employment action short of a termination,
- recently engaged in legally-protected conduct, and
- are a public employee.
If you are in a protected class, the write-up may be discriminatory. This can violate state and federal law, in the form of the California Fair Employment and Housing Act (FEHA) or Title VII of the Civil Rights Act of 1964. Before you can file a lawsuit for discrimination, though, you should generally file a formal complaint with HR. If that does not resolve anything, you may have to file a complaint with the U.S. Equal Employment Opportunity Commission (EEOC) or the California Civil Rights Department (CRD), first. Only after obtaining a right to sue notice from one of these agencies can you take you case to court.
If you were terminated because of the reprimand, you may have grounds for a wrongful termination lawsuit. Even if you are in an at-will employment relationship in California, there are numerous ways for an employer to unlawfully fire at-will employees.
If the reprimand led to a negative employment outcome that fell short of termination, you may still have legal recourse. If you are a part of a protected class, you may have a discrimination claim. These incidents can also create a hostile work environment.
If the write-up was because you recently engaged in lawfully-protected behavior, it can be workplace retaliation. For example, your employer cannot punish you for:
- whistle-blowing on a suspected violation of the law,[1]
- participating in a case involving workplace harassment or discrimination,[2]
- requesting reasonable accommodations for a disability or a religious belief,[3] or
- filing for workers’ compensation.[4]
If you are a public employee, the reprimand may violate your civil rights. It may be grounds for a Section 1983 lawsuit.
An attorney from a reputable employment law firm can help you file an appropriate claim.
[1] See, for example, California Labor Code 1102.5 LAB.
[2] California Government Code 12940 GOV.
[3] Same.
[4] California Labor Code 132(a) LAB.
