Legal FAQ Table of Contents

Basics of Commercial Leases

Choose and rent the best space for your business at the best price.

You may need more office space, or want to move to a different kind of business space. Perhaps your home business is bursting out of the garage and needs its own location. Whatever your reason for seeking to rent a space for your business, it's important to understand as much as possible about commercial leases to get the best space for the best price.

As you enter into the process of searching for and renting office space, the following pointers will help you.

Determining Your Needs and Setting Priorities

What kind of space do you need? Commercial space comes in a multitude of sizes and configurations, from the to-be-built building to a plain-vanilla office suite to a quirky older building. If you know what you're looking for, you can efficiently go after it.

Where do you want to be located? Being in one part of town may be important; but if it's not, you will have more to choose from.

Is appearance important to you? If you're dealing with the public, the outward show of the building will no doubt matter.

Do you want to be located near other businesses that complement yours? Sometimes it's a plus to be among your own (such as in the "high tech district").

What kinds of services do you want near your place of business? You may conclude that you and your customers or clients will benefit from certain close neighbors -- a dentist, for example, may want to be within walking distance of a special X-ray lab.

Finding and Evaluating Space

Can you find a space on your own? In markets that are hot or sophisticated, you may need the help of a broker, who may have contacts that tenants won't know about. It's best to work with a broker who represents mainly tenants. Think very carefully before working with a broker who also represents the landlord -- such dual representation will rarely be to your benefit.

How does the landlord measure square feet? Believe it or not, it’s perfectly acceptable to include the thickness of the exterior walls, and even the interior walls, stairwells, and elevator shafts, in square foot measurements. Make sure you know how your landlord computes your rented space.

Does the place require percentage rent? In a percentage rent situation, you pay for the size of the rental, plus a portion of your profits once they exceed a certain amount. In essence, you are sharing your income with the landlord when you reach that point of profitability. Large retail operations are typically the only tenants who pay percentage rent.

Is there expansion/purchase potential? Looking down the line, you may be thinking about the possibility of buying your own building. Be on the look-out for locations that offer a lease with an option to buy.

Developing a Negotiating Strategy

How much clout do you have? Your ability to secure a favorable lease depends on the state of the market. If there are lots of vacancies in your area, you’ll stand a better chance of landing the rental on advantageous terms than if space like this is scarce.

Should you sign a letter of intent? Sometimes when landlords and tenants are in the midst of serious negotiations, they want to put their understandings down on paper -- but they usually don't expect that their writings will be the equivalent of a lease. A letter of intent is just that -- a communication indicating what the landlord and tenant would like to see happen in a lease. If the landlord asks you to sign a letter of intent, you should sign it to show you're serious about the space. But take care to make it clearly nonbinding, or else it can end up obligating you.

Are you aware that there is no such thing as a "standard" business lease? Unlike many other aspects of business, there are surprisingly few legal constraints on what tenants and landlords agree to do. Commercial leases can and should reflect the give-and-take between the landlord and tenant -- one size simply doesn't fit all. Even if the landlord starts with a form that's accepted by other tenants who lease from this landlord or printed and distributed by a big real estate management firm, it can always be modified.

Negotiating the Lease

Is the landlord asking for a "gross" or a "net" lease? In a gross lease, tenants pay a set amount per month, much like a residential lease. Depending on whether a whole building or part of one is being rented, the tenant will also pay all or a portion of the utilities. In a net lease, tenants pay for their square footage, plus a portion of the landlord's operating expenses, including the building insurance and taxes, plus utilities.

How long do you want your lease to last? Commercial leases typically last from two or three years to ten or fifteen. Only well-established businesses should commit to very long lease terms.

Do you need a lawyer to review your lease? Paying for a few hours of a lawyer’s time is usually a very wise move. The lawyer may spot potential problems that you may not have thought about. Look for someone who has represented you (or someone you know) successfully in the past, or ask other businesspeople whom you respect for recommendations.

The Commercial Lease: What You Should Know

Know what you’re getting yourself into when you rent space for your business.

Renting commercial space is a big responsibility -- the success or failure of your business may ride on certain terms of the lease. Before you approach a landlord, you should understand how commercial leases differ from the more common residential variety, and before you sign anything, make sure you understand and agree with the basic terms of the lease, such as the amount of rent, the length of the lease and the configuration of the physical space.

How Commercial Leases Differ From Residential Leases

It's crucial to understand from the get-go that, practically and legally speaking, commercial leases and residential leases are quite different. Here are the main distinctions between them:

• Fewer consumer protection laws. Commercial leases are not subject to most consumer protection laws that govern residential leases -- for example, there are no caps on security deposits or rules protecting a tenant's privacy.
• No standard forms. Many commercial leases are not based on a standard form or agreement; each commercial lease is customized to the landlord's needs. As a result, you need to carefully examine every commercial lease agreement offered to you.
• Long-term and binding. You cannot easily break or change a commercial lease. It is a legally binding contract, and a good deal of money is usually at stake.
• Negotiability and flexibility. Commercial leases are generally subject to much more negotiation between the business owners and the landlord, since businesses often need special features in their spaces, and landlords are often eager for tenants and willing to extend special offers.

Making Sure the Lease Will Fit Your Business

Before you sign a lease agreement, you should carefully investigate its terms to make sure the lease meets your business's needs.

First, consider the amount of rent -- make sure you can afford it -- and the length of the lease. You probably don't want to tie yourself to a five- or ten-year lease if you can help it; your business may grow faster than you expect or the location might not work out for you. A short-term lease with renewal options is usually safer.

Also think about the physical space. If your business requires modifications to the existing space -- for example, adding cubicles, raising a loading dock, or rewiring for better communications -- make sure that you (or the landlord) will be able to make the necessary changes.

Other, less conspicuous items spelled out in the lease may be just as crucial to your business's success. For instance, if you expect your camera repair business to depend largely on walk-in customers, be sure that your lease gives you the right to put up a sign that's visible from the street. Or, if you are counting on being the only sandwich shop inside a new commercial complex, make sure your lease prevents the landlord from leasing space to a competitor.

Independent Contractor or Employee: How Government Agencies Make the Call

Make sure the independent contractor you hire doesn't get reclassified as an employee.

A number of laws govern whether a worker is an independent contractor (IC) or an employee, and each of these laws has a different way of looking at the issue. For example, the IRS has one method of determining whether a person is an independent contractor, but your state workers' compensation board may use a different test.

Because of all these different laws (often referred to as "worker classification" rules), the issue of whether a worker is an IC is not one question, but many. Employers who don't take the time to learn the rules before they hire an independent contractor can get hopelessly confused -- and this confusion can lead to trouble with one agency or another. If you want to avoid problems such as fines and taxes, know the rules before you hire a worker.

The IRS

The IRS is probably the most important agency to satisfy when it comes to classifying a worker as an IC. Under the IRS's test, workers are considered employees if the company they work for has the right to direct and control the way they work -- including the details of when, where, and how the job is accomplished. In contrast, the IRS will consider workers independent contractors if the company they work for does not manage how they work, except to accept or reject their final results.

The IRS looks at a number of factors when determining whether a worker is an employee or an independent contractor. The agency is more likely to classify as an independent contractor a worker who:

• can earn a profit or suffer a loss from the activity
• furnishes the tools and materials needed to do the work
• is paid by the job
• works for more than one firm at a time
• invests in equipment and facilities
• pays his or her own business and traveling expenses
• hires and pays assistants, and
• sets his or her own working hours.

On the other hand, the IRS is more likely to classify as an employee a worker who:

• can be fired at any time by the hiring firm
• is paid by the hour
• receives instructions from the hiring firm
• receives training from the hiring firm
• works full time for the hiring firm
• receives employee benefits
• has the right to quit without incurring liability, and
• provides services that are an integral part of the hiring firm's day-to-day operations.

If you think the IRS would consider the worker an IC, you don't have to withhold federal payroll taxes for the worker, including Social Security taxes, federal disability taxes and federal income taxes. If the IRS would not consider the worker an IC, then you should withhold these taxes.

To find out more about the IRS test, go to the agency's website at www.irs.gov.

Your State Unemployment Compensation Board

If the worker meets your state unemployment compensation board's definition of independent contractor, you don't have to pay for unemployment insurance for the worker. If the worker does not meet this test, you should provide unemployment coverage for the worker, even if the worker qualifies as an IC under tests used by other agencies, such as the IRS.

To learn more about your state unemployment department's test, go to your state unemployment compensation board or your state department of labor. You can also try your local office of the Small Business Administration. For a list of SBA offices, check out the SBA's website at www.sba.gov.

If a worker whom you treates as an IC decides to apply for unemployment compensation -- which is reserved for employees -- it will be your word against the worker's. You say the worker was an IC, but the worker -- hungry for that unemployment check -- says otherwise. In such a situation, you'd better be prepared to back up your claim with documentation.

Your State Workers' Compensation Insurance Agency

If a worker meets your state workers' compensation agency definition of independent contractor, you don't have to pay for workers' compensation coverage for that worker. Otherwise, you should pay for workers' compensation coverage, even if the worker qualifies as an IC under other tests, such as the IRS test or your state unemployment board test.

To find out more about the workers' compensation test in your state, contact your state department of industrial relations or your state labor department. Your local office of the SBA might also have information on the subject. For a list of SBA offices, refer to the SBA's website at www.sba.gov.

If an IC is injured on the job and applies for workers' compensation -- something reserved for employees -- you might find yourself with an audit on your hands. You should be prepared from the beginning to prove that the worker was an IC under the workers' compensation board's test.

Your State Tax Department

If your state collects income tax, then you need to familiarize yourself with your state tax department's rules regarding ICs. If the worker will qualify as an IC under your state tax department's test, you do not need to withhold state income taxes from money that you pay the worker. Otherwise, you should withhold state taxes, even if the worker qualifies as an IC under other tests, such as the IRS test or the workers' compensation test. Contact your state tax board for details.

The U.S. Department of Labor

Finally, if the U.S Department of Labor would consider a worker an IC, you don't need to pay the worker overtime when the worker works more than 40 hours in a week. Otherwise, you should pay the worker overtime, even if the worker would qualify as an IC under other tests, such as the IRS test or your state tax department's test. For more information about the U.S. Department of Labor's test for ICs, refer to the agency's website at www.dol.gov.

Renting With Others

Learn to avoid disputes among roommates or with the landlord.

When two or more people sign the same rental agreement or lease -- or enter into the same oral rental agreement -- they are cotenants and share the same legal rights and responsibilities. However, there's a special twist. One cotenant's negative behavior -- not paying the rent, for example -- can affect everyone's tenancy.

When One Roommate Doesn't Pay Rent

Cotenants may decide to split the rent equally or unequally, depending on their personal wishes. However, such agreements don't affect the landlord. Each cotenant is independently liable to the landlord for all of the rent. Landlords often remind cotenants of this obligation by inserting into the lease a chunk of legalese that says that the tenants are "jointly and severally" liable for paying rent and adhering to terms of the agreement. If one tenant can't pay a share of the rent in a particular month, or simply moves out, the other tenant(s) must still pay the full rent.

Landlords often insist on receiving one rent check for the entire rent -- they don't want to be bothered with multiple checks from contenants, even if each contenant pays on time and the checks add up to the full rent. As long as you have been advised of this policy in the rental agreement or lease, it's legal for your landlord to impose it.

When One Roommate Violates the Lease or Rental Agreement

A landlord can legally hold all contenants responsible for the negative actions of just one, and terminate everyone's tenancy with the appropriate notice. For example, two contenants can be evicted even if only one of them seriously damaged the property or otherwise violated the lease or rental agreement.

In practice, however, landlords sometimes ignore the legal rule that all tenants are equally liable for lease violations, and don't penalize a blameless one. If the non-offending roommates pay the rent on time, do not damage the landlord's property, and can differentiate themselves from the bad apple in the landlord's eyes, the landlord may want to keep them.

Disagreements Among Roommates

For all sorts of reasons, roommate arrangements regularly go awry. If you have shared an apartment or house, you know about roommates who play the stereo too loud, never wash a dish, pay their share of the rent late, have too many overnight guests, leave their gym clothes on the kitchen table, or otherwise drive you nuts. If the situation gets bad enough, you'll likely end up arguing with your roommates about who should leave.

However, as a general rule, you can't terminate your roommate's tenancy by filing an eviction action. Only if you have sublet a portion of your rental -- so that you become your roommate's (sublessee's) landlord -- can you control that roommate's tenancy.

Another exception involves rentals governed by rent control laws that allow a landlord to designate a "master tenant" -- usually a long-term tenant who was there first -- to perform many of the functions of a landlord (this is the rule in San Francisco). Master tenants have the right to choose -- as well as to evict -- tenants. If your municipality is subject to rent control, find out whether the scheme includes a provision for a master tenant.

Roommate Agreements

Roommates can make lots of informal agreements about splitting rent, occupying bedrooms, and sharing chores. Your landlord isn't bound by these agreements, and has no power to enforce them, but making an agreement can force you and your housemates to take your cotenancy responsibilities seriously.

Before you move in, sit down with your roommates and discuss major issues, such as:

1. Rent. What is everyone's share? Who will write the rent check if the landlord will accept only one check?
2. Space. Who will occupy which bedrooms?
3. Household chores. Who's responsible for cleaning, and on what schedule?
4. Food sharing. Will food, shopping, and cooking responsibilities be shared? How will you split the costs and work?
5. Noise. When should stereos or TVs be turned off or down low?
6. Overnight guests. Is it okay for boyfriends/girlfriends to stay over every night?
7. Moving out. If one of you decides to move, how much notice must be given? Must the departing tenant find an acceptable substitute?

The more you can anticipate possible problems from the start, the better prepared you'll be to handle disputes that do arise. Be as specific as possible, especially on issues that are important to you. If dirty dishes in the sink drive you up the wall, write it down. If occasional guests are no problem, but you can't stand the thought of your roommate's non-rent-paying boyfriend hogging the bathroom every morning, make sure your agreement is clear on guests.

It's best to put your understandings in writing. (See the sample roommate agreement below.) Oral agreements are too easily forgotten or misinterpreted. Most of the agreement won't be legally binding -- that is, a judge won't order a tenant to clean the bathroom. Judges will, however, enforce financial agreements, such as how you’ve agreed to share rent.

To underline the roommates' commitment, it's wise to include a clause requiring cotenants to participate in mediation before one of you breaks the agreement by moving out or running off to court. Our sample roommate agreement, below, includes such a clause.

Tenants' Rights: When to Hire a Lawyer

Protect your rights as a renter by hiring a lawyer when necessary.

Many issues tenants face are minor and can be easily resolved by common sense or reading a good self-help book like Renters' Rights, by Janet Portman and Marcia Stewart (Nolo). Some issues, however, can seriously threaten your enjoyment of your rental -- or worse, your ability to stay in the rental at all. In these situations, getting a lawyer’s help may be the most effective way to protect your rights.

Below is a guide to determining whether you need a tenant lawyer or not. If you find yourself in one of the following situations, consider hiring a lawyer.

Your Landlord is Evicting You

If your landlord serves you with a termination notice that you intend to fight, hiring a lawyer can increase your chance of success. Choose a lawyer that is knowledgeable about landlord-tenant law and has significant experience fighting evictions. Such a lawyer can come up with effective strategies or creative solutions that you might not be aware of -- for example, the lawyer could argue that your landlord's eviction was retaliatory (and therefore illegal) if the circumstances support such a defense.

Your Landlord is Evicting You Without Proper Court Procedures

Landlords must follow eviction procedures set forth by state and local law. If your landlord tries to evict you by taking matters into his own hands -- for example, by locking you out, canceling your utilities, or even removing your doors, windows, or possessions -- consider hiring a lawyer. These types of “self-help” remedies are illegal. No matter how strong a landlord's case may be for ending a tenancy, a landlord doesn't have the right to take, or even threaten, any self-help actions against you.

Your Landlord Discriminates Against You

If you believe your landlord is discriminating against you, you may need a lawyer to stop the illegal actions and help you recover damages for any harm you suffered. One option is to hire a lawyer to sue the landlord in court.

Another option is to file a complaint with the Department of Housing and Urban Development (HUD), or a state or local agency in HUD's Fair Housing Assistance Program (FHAP). (To file a complaint with HUD, call 1-800-669-9777, or visit HUD's Office of Fair Housing and Equal Opportunity website at www.hud.gov/offices/fheo  and click "Housing Discrimination Complaint Form.")

HUD and state and local agencies in FHAP receive over 10,000 discrimination complaints a year. If HUD investigates your complaint and determines there's reasonable cause to believe your landlord has been discriminating, you'll get the benefit of having a HUD lawyer representing you in front of an administrative law judge at no cost. The judge can award you compensation and attorneys' fees, impose penalties against your landlord, and order other relief.

Your Landlord Won’t Make Necessary Repairs

If your landlord isn't fulfilling important obligations under your lease and the law, it can lead to major problems. For example, think of the landlord who keeps putting off needed heating system repairs until winter is well under way, or the landlord who ignores a ground-floor tenant's requests to replace a broken window until a burglary occurs.

In these cases, you may decide to implement one of your state’s tenant remedies on your own (such as rent withholding or “repair and deduct”), but you may need some coaching on how to do it right. Consulting a lawyer may be your best move. In addition, a lawyer can attempt to communicate with the landlord for you, explore the possibility of a quick settlement, and take the landlord to court, if needed.

Your Landlord Isn’t Fulfilling His Promises

Sometimes, landlords make promises to encourage hesitant applicants to rent from them. For example, if an applicant is concerned about the neighborhood crime rate, a landlord might promise to install a more effective intercom system or an electronic, gated parking lot. If the landlord later refuses to honor the promise, you may need to hire a lawyer to write a stern letter to your landlord, threatening a lawsuit unless the landlord follows through.

You’ve Been Injured or Made Ill

Accidents can happen, even at a well-run rental property. However, if an accident is the result of the landlord’s carelessness, you may have a legal case against your landlord. For example, you might break your leg after slipping on an icy patch on the front steps of your building. (Perhaps the landlord should have arranged for regular de-icing, which would have removed the danger.) Or, you may discover an outbreak of mold in your rental -- only after it has made you and your family very ill.

Even if your landlord didn't personally or intentionally create the problem, there are many legal theories available to convince a court or insurance adjustor that the landlord should be held responsible. Lawyers are skilled at identifying which theories may apply and crafting arguments using them.

Your Property Has Been Damaged

Sometimes, a landlord’s failure to maintain the rental property causes damage to your personal property. For example, a landlord's faulty wiring repair job could spark an electrical fire in your living room, damaging your furniture and other belongings.

If you have renter's insurance, your insurance company will cover the loss and its lawyers will then seek reimbursement from your landlord. If you don't have insurance or have inadequate coverage and the damage to your property is substantial, consider hiring a lawyer to help you obtain reimbursement from your landlord. In the alternative, you could consult with a lawyer for an hour or two to get advice on how to proceed and what arguments to make to get reimbursed.

How to Get a Lawyer’s Help

If you are in need of a lawyer, choose one with expertise in landlord-tenant matters.

Hiring a lawyer as “coach.” Hiring a lawyer doesn't have to break the bank. Depending on your needs, your budget, and your confidence in your ability to handle a matter on your own, you might find a lawyer who will agree to meet with you for an hour here and there as a coach. Even limited legal help can make the difference and prove to be all you need to steer your way toward a favorable outcome.

Check for an attorney's fees clause in your rental agreement. Many landlords include an "attorney's fees" clause in their lease or rental agreement to prevent frivolous lawsuits. If your lease or rental agreement includes this clause, you may be entitled to get reimbursed for your reasonable attorney's fees and court costs if you win a lawsuit against your landlord. (Even if your clause appears to provide recovery only to a victorious landlord, courts in many states will rule the clause works both ways.)

As a practical matter, if you have an attorney's fees clause in your lease or rental agreement, you will have an easier time finding a lawyer to represent you. Since the landlord pays the lawyer's bill if you win, a lawyer needn't worry as much about getting paid by you. Be aware that the clause applies only to disputes arising out of the lease or rental agreement (such as evictions, rents, and security deposit issues) -- not to disputes involving personal injury, discrimination, or other such matters.

To learn more about finding a good tenant lawyer, including an explanation of various fee arrangements, read Every Tenant’s Legal Guide, by Janet Portman and Marcia Stewart (Nolo).

Taking Family and Medical Leave

Get information about all of the benefits you may be entitled to before taking a family or medical leave.

Fighting Sexual Harassment

Use the law and your employer's complaint procedures to protect yourself from on-the-job harassment.

In legal terms, sexual harassment is any unwelcome sexual advance or conduct on the job that creates an intimidating, hostile, or offensive working environment. In real life, sexually harassing behavior ranges from repeated offensive or belittling jokes to a workplace full of offensive pornography to an outright sexual assault. It can happen to men and women, gay or straight -- in other words, sexual harassment is an equal opportunity offense.

Fortunately, there are state and federal laws that protect workers from sexual harassment on the job. These are the same laws that protect workers from discrimination based on gender. At the federal level, Title VII of the Civil Rights Act forbids harassment. In addition, most states have their own fair employment practices laws that prohibit sexual harassment, many of them more strict than the federal law.

If you are being sexually harassed at work, there are a number of things that you should do to protect yourself.

Tell the Harasser to Stop

Initially, you can try telling the harasser to stop. Although this confrontation may be difficult for you, it is often the most effective way of dealing with harassment. You're more likely to be successful if the harassment hasn't gone beyond things like off-color jokes, inappropriate comments about your appearance, or tacky cartoons posted onto the office refrigerator.

Clearly saying you want the offensive behavior to stop is important, because it lets the harasser know that the behavior is unwelcome (which it must be in order to meet the legal definition of sexual harassment). It is also a crucial first step if you later decide to take more formal action against the harasser.

If the harasser ignores your oral requests to stop, or if you are uncomfortable talking to the harasser face to face, write a succinct letter demanding an end to the behavior. Be sure to keep a copy.

If you are concerned for your personal safety or are afraid that the harasser might become more hostile when confronted, complain to a supervisor instead.

Complain to Supervisors

If confronting the harasser doesn't end the harassment, you should escalate your complaint within the company. Check your company's employee handbook, personnel policies, or manual. Is there a sexual harassment or complaint policy? If so, follow it. If not, ask your supervisor or someone in the human resources or personnel department how to make a sexual harassment complaint. If you don’t get the help you need, move up the chain of command to managers and executives, documenting along the way. (See below for tips on how to document your actions.)

Although it is often difficult to make a complaint at work, and you may prefer to skip this step, don't. The U.S. Supreme Court has said that employees who fail to use their employer's internal complaint procedure to make the company aware of sexual harassment, and to give the company a chance to stop it, cannot later hold the company liable in a lawsuit. This means that you are quite likely to lose in court, should it come to that, if you don't complain within the company first.

Even if your company doesn't have a formal complaint procedure, you can put the company on notice of the harassment. You can do this by making a complaint to the human resources department, telling your supervisor (or his or her supervisor) about the problem, or informing a company executive.

Document Your Claims

It is very important to document what is happening to you, and what you are doing to try to stop it, should you ever have to prove your case to a company investigator, a government agency, or a jury.

Start by collecting as much detailed evidence as possible about the harassment. Be sure to save any offensive letters, photographs, cards, or notes you receive. If you were made to feel uncomfortable because of jokes, pin-ups, or cartoons posted at work, confiscate them -- or at least make copies. An anonymous, obnoxious photo or joke posted on a bulletin board is not anyone else's personal property, so you are free to take it down and keep it as evidence. If that's not possible, photograph the workplace walls. Note the dates the offensive material was posted -- and whether there were hostile reactions when you took it down or asked another person to do so.

Also, keep a detailed journal about incidents of harassment. Include the names of everyone involved, what happened, and where and when it took place. If anyone else saw or heard the harassment, note that as well. Be as specific as possible about what was said and done -- and how it affected you, your health, or your job performance. Keep your journal and notes at home or in a secure location outside of the workplace.

If your employer has conducted periodic written evaluations of your work, make sure you have copies. In fact, you may want to ask for a copy of your entire personnel file before complaining about a harassing coworker. Your records can be particularly persuasive evidence if your employer retaliates against you for complaining -- which is also illegal. For example, you'll want a copy of your records if you've had positive performance evaluations until you complain, and then your employer tries to transfer, demote, or fire you or claims your job performance is poor.

Complain to Government Agencies Before Filing a Lawsuit

If complaining to your employer doesn’t help, the next step is to go to either the federal agency that enforces Title VII -- the U.S. Equal Employment Opportunity Commission -- or to your state fair employment office. If all investigation and settlement attempts fail to produce satisfactory results, you can file a civil lawsuit for damages under either Title VII or your state fair employment practices statute.

 You must file a complaint with the EEOC before filing a federal lawsuit. Even if you intend right from the beginning to file a lawsuit, you sometimes must first file a claim with a government agency. For example, an employee pursuing a claim under federal law must first file a claim with the Equal Employment Opportunity Commission (EEOC), and a similar complaint procedure is required under some state laws.

The EEOC or state agency may decide to prosecute your case on your behalf, but that happens rarely. More commonly, at some point, the agency will issue you a document referred to as a "right-to-sue" letter that allows you to take your case to court with your own lawyer.

Fighting Race and National Origin Discrimination

What to do if you're facing workplace discrimination.

Apparently, some employers haven't gotten the message: Discrimination on the basis of race or national origin is real -- and it’s wrong. It still happens more often than anyone wants to believe, and it exacts a very high price, both from its victims and from the companies at which it occurs. Lawsuits in recent years have proven this point as large companies had to pay millions of dollars to compensate the victims of race and national origin discrimination and for their own complicity in encouraging or allowing a discriminatory atmosphere to flourish in the workplace.

What Is Race Discrimination?

An employer commits race discrimination when it makes job decisions on the basis of race or when it adopts seemingly neutral job policies that disproportionately affect members of a particular race (more on this below).

Federal and most states' laws forbid discrimination in every aspect of employment -- including hiring, firing, promotions, compensation, job training, or any other condition of employment. For example, an employer discriminates when it promotes only white employees to supervisory positions, requires only job applicants of a certain race to submit to drug tests, or refuses to allow employees of certain races to deal with customers. An employer that discriminates on the basis of physical characteristics associated with a particular race -- such as hair texture or color, skin color, or facial features -- also commits race discrimination.

Even seemingly neutral employment criteria or policies may be discriminatory if they have a disproportionate impact on members of a particular race. For example, an employment policy requiring men to be clean-shaven may discriminate against African-American men, who are more likely to suffer from Pseudofolliculitis barbae (a painful skin condition caused and exacerbated by shaving). Or, a minimum height requirement may screen out disproportionate numbers of Asian-American and Latino job applicants.

If an employee shows that a particular policy has a disproportionate impact on members of a particular race, the employer can defend the policy by showing that there is a legitimate, important, job-related reason that necessitates the policy. For example, a height requirement might be justified if the employer can show that an employee must be at least a certain height to operate a particular type of machinery. However, an employer would be hard-pressed to justify a height requirement for a desk position.

What Is National Origin Discrimination?

An employer discriminates on the basis of national origin when it makes any employment decisions based on a person's ancestry, birthplace, or culture, or on linguistic characteristics or surnames associated with a particular national origin group. For example, an employer who refuses to interview people with Hispanic-sounding surnames on their applications or resumes discriminates, as does an employer who won't allow anyone with an accent to work with the public.

English-Only Rules Are Sometimes Allowed

A private employer may be able to prohibit on-duty employees from speaking any language other than English if it can show that the rule is necessary to the business. If the employer imposes an English-only rule, the employer must tell employees when they have to speak English (for example, whenever customers are present) and the consequences of breaking the rule. And if an English-only rule is challenged, courts will look closely at its scope: If an employer forbids workers from ever speaking another language, even during breaks or when a customer who speaks that language is present, the rule is probably too extensive.

Harassment Is Illegal, Too

Harassment on the basis of race and national origin is also prohibited. Harassment is any conduct based on a person's race or national origin that creates an intimidating, hostile, or offensive work environment or interferes with the person's work performance. Harassing conduct might include racial slurs, jokes about a particular ethnic group, physical acts of significance to a certain racial or ethnic group (for example, hanging or posting an offensive picture or object near an employee's workspace), or even comments or questions about a person's cultural habits.

Steps to Take If You Are Facing Discrimination

If you suspect discrimination at work, you might find yourself in one of two situations. In the first, the discrimination is obvious. If, for example, your supervisor has said that he or she will never promote members of a certain race, has used racial slurs, or otherwise has demonstrated bias against a particular racial or ethnic group, you don't need to wonder whether race is playing a role in the supervisor's decisions.

In the second scenario, you suspect discrimination, but the evidence isn't as obvious. Perhaps your company has never promoted a member of a certain race. Or maybe employees who are people of color are routinely disciplined for offenses that white employees seem to get away with. In these cases there could be an explanation that does not involve race or national origin. But it's difficult for an employee to find out the truth.

If you find yourself in either of these situations, here are a few steps you can take:

• Take notes. Start writing down every incident or statement that is offensive -- or just seems fishy. For example, you might make a log of every inappropriate comment your supervisor makes or print out any email messages or items posted on company bulletin boards that contain racial epithets. Keep track of key employment decisions that you suspect could be based on race -- like how many members of a particular race have been promoted to a particular position. Make sure to date your entries and keep your notes at home or in a secure location.
• Talk to other employees. If you have been discriminated against or harassed because of your race or national origin, chances are that you are not alone. Talk to your coworkers to find out whether they have faced similar problems -- or have seen or heard of any discriminatory behavior towards other employees.
• Take it to management. Make a complaint to someone within the company. If your company has a complaint policy, use it. Or go to the human resources department. If neither of these options is available, simply go to a high-level management official who doesn't seem to be directly involved in the problem. Or, if you have some concerns but you aren't sure whether discrimination is at the root of the problem, raise your concerns and ask the company to investigate the issue.
• Contact a government agency. If your company doesn't take any meaningful action on your complaint, you can file a charge of discrimination with the federal Equal Employment Opportunity Commission (EEOC) and/or your state's fair employment practices agency. The government agency will generally ask the employer to answer your charge and may even conduct an investigation itself. The agency can ask the employer to hand over documents and explain why certain employment decisions were made -- information the company is unlikely to give you without being forced to do so.
• File a lawsuit. If all else fails, you can bring a lawsuit charging the company with discrimination. To file a lawsuit, you must first have filed a charge with the EEOC or a state agency.

For more information about race or national origin discrimination or to file a complaint, contact your local field office of the EEOC (contact information is available atwww.eeoc.gov) or your state's fair employment practices agency. There are time limits for filing a complaint or a lawsuit, so be sure not to miss them.

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Sexual Orientation Discrimination: Your Rights

Many state and local measures protect gay and lesbian workers from discrimination in the workplace.

Sexual orientation discrimination includes being treated differently or harassed because of your real or perceived sexual orientation -- whether gay, lesbian, bisexual, or heterosexual. This type of discrimination may be illegal in your workplace, depending on where your work is located.

Federal Law

Although federal laws protect people from workplace discrimination on the basis of race, national origin, sex, age, and disability, there is no federal law that specifically outlaws workplace discrimination on the basis of sexual orientation in the private sector. (Federal government workers are currently protected from such discrimination, though.) Attempts to pass federal legislation that would outlaw sexual orientation discrimination in private workplaces have been unsuccessful to date, although more members of Congress support such a bill each year.

State Laws

There is more hope at the state level. Almost half the states and the District of Columbia have laws that currently prohibit sexual orientation discrimination in both public and private jobs: California, Colorado, Connecticut, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Washington, and Wisconsin.

In addition, a few states have laws prohibiting sexual orientation discrimination in public workplaces only.

Local Laws

If you are gay or lesbian and your state does not have a law that protects you from workplace discrimination, you may still be protected by city and county ordinances. Over 180 cities and counties prohibit discrimination on the basis of sexual orientation in at least some workplaces -- from Albany, NY, to Ypsilanti, MI.

To find out exactly what kind of protection your city, county, and/or state provides to prohibit sexual orientation discrimination, you can visit the Lambda Legal Defense and Education Fund website at www.lambdalegal.org. Lambda maintains a list of state-by-state antidiscrimination laws -- as well as other laws specifically affecting gays and lesbians. If you need additional information, you can contact the Lambda office in your region. There, an intake volunteer will either answer your question or, if you need more help, connect you with a volunteer attorney.

Company Policies

Some enlightened companies have adopted their own policies prohibiting discrimination based on sexual orientation. These policies prohibit such conduct and often provide disciplinary guidelines for dealing managers who discriminate, up to and including termination of employment.

Other Laws

If no law prohibits sexual orientation discrimination where you work, there may still be hope. Depending on the exact nature of the discrimination, you may be able to sue your employer -- or your coworkers -- under a number of general legal theories, including:

• intentional or negligent infliction of emotional distress
• harassment
• assault
• battery
• invasion of privacy
• defamation
• interference with an employment contract, and
• wrongful termination.

For more information about your right to be free of workplace discrimination, see Your Rights in the Workplace, by Barbara Kate Repa (Nolo)

Your Rights Against Age Discrimination

State and federal laws protect workers from discrimination based on age.

Stereotypes about older people abound in our culture, but employers are not allowed to rely on them when making workplace decisions. A number of state and federal laws prohibit employers from discriminating against employees and applicants based on age.

The Age Discrimination in Employment Act

The federal Age Discrimination in Employment Act, or ADEA ( 29 U.S.C. §§ 621-634), is the primary federal law that prohibits employers from discriminating against employees and applicants who are at least 40 years old based on age.

The ADEA protects workers from age discrimination in every phase of the employment relationship, including job advertisements, interviewing, hiring, compensation, promotion, discipline, job evaluations, demotion, training, job assignments, and termination. In a recent case, the U.S. Supreme Court held that the ADEA prohibits practices and policies that are seemingly neutral, but have a disproportionately negative impact on older workers (disparate impact), as well as those that explicitly treat older workers worse than younger workers (disparate treatment). (See Smith v. City of Jackson, Mississippi, 125 S.Ct. 1536 (2005).)

Not only does the ADEA prohibit employers from discriminating against older workers in favor of those who are younger than 40, it also prohibits employers from discriminating among older workers. For example, an employer cannot hire a 43-year-old rather than a 53-year-old simply based on age.

The ADEA applies to all private employers with 20 or more employees and to federal and local governments. It also applies to state governments, although their employees cannot sue them directly for age discrimination.

Discrimination in Benefits and Early Retirement

The federal Older Workers Benefit Protection Act, or OWBPA (29 U.S.C. § 623 and following), amended the ADEA to specifically make it illegal for employers to use an employee's age as a basis for discrimination in benefits and retirement. Like the rest of the ADEA, the OWBPA only protects people who are at least 40 years old.

The OWBPA prohibits age discrimination in the provision of fringe benefits, such as life insurance, health insurance, disability benefits, pensions, and retirement benefits. Typically, this means that employers must provide equal benefits to older and younger workers. For some types of benefits, however, employers can meet this nondiscrimination requirement by spending the same amount on the benefit provided to each group, even if older workers receive lesser benefits. In some circumstances, employers are also allowed to provide lesser benefits to older workers if those workers receive additional benefits -- from the government or the employer -- to make up the difference.

State Laws

Many state laws also prohibit discrimination on the basis of age. Although some of these laws essentially mirror federal law and protect only employees who are at least 40 years old, other state laws are broader and protect workers of all ages.

State laws tend to apply to employers with fewer than 20 employees, so your employer might have to comply with your state law even if it isn’t covered by federal law.

Disability Discrimination in the Workplace: An Overview of the ADA

The Americans With Disabilities Act (ADA) protects employees from discrimination based on a disability.

Assert Your Safety Rights Without Fear of Retaliation

The law prohibits your employer from retaliating against you for asserting your rights under workplace safety laws.

Both federal and state workplace safety laws prohibit your employer from retaliating against you for asserting your rights under those laws.

An employer retaliates when it makes any negative change in your working conditions to punish you for having asserted your rights under the law. This can include anything from assigning you less desirable work tasks or shifts to giving you an unwarranted poor performance evaluation to denying you a promotion, demoting you, or firing you.

State Law Protections Against Retaliation

In many states, you can sue your employer for retaliating against you for complaining about workplace hazards. You can also complain to your state's health and safety agency. To find out more, contact the workplace health and safety agency in your state.

Federal OSHA Protections Against Retaliation

Unlike many states' laws, the federal Occupational Safety and Health Act (the OSH Act or OSHA) does not authorize you to sue your employer directly in court yourself. Instead, you must ask the U.S. Department of Labor's Occupational Safety and Health Administration (also known as OSHA) to intercede on your behalf.

If you suspect that you are being retaliated against for making an OSHA complaint, you have only 30 days from the time the retaliation takes place to file a complaint about the retaliation with your local OSHA office. (Note that you would need to file a separate complaint about the retaliation itself in addition to the original OSHA complaint you filed about the workplace hazard.)

Whether you will prevail in your retaliation complaint often turns on whether you can prove that your employer took the negative action against you because you asserted your rights under OSHA, rather than for some other reason unrelated to your original OSHA complaint (for example, because your performance slipped or because economic cutbacks required layoffs). Be sure to back up your retaliation complaint with as much documentation as possible to show that your employer took action against you only after -- and because -- you complained.

Once you have filed a retaliation complaint, OSHA will investigate and respond. If you prove that you were fired or otherwise punished because you complained to OSHA, the compliance officer handling your complaint will attempt to convince your employer to take the proper action to remedy the situation. For example, if you were demoted in retaliation for your complaint, the OSHA compliance officer would probably ask your employer to reinstate you to your original position and give you the backpay to which you are entitled.

If OSHA is unsuccessful in getting your employer to reverse the effects of the illegal retaliation, it can sue your employer in federal court on your behalf.

How to Find an Excellent Lawyer

Follow these steps to find a good lawyer to help you with your legal issue.

If your legal problem is complex or involves lots of money, you might not want to attempt to handle the entire matter without a lawyer. After all, lawyers do more than dispense legal information. They offer strategic advice and apply sophisticated technical skills to legal problems. Ideally, you'll be able to find a lawyer who's willing to serve as your legal "coach" to help you educate yourself to the maximum extent possible and to take over as your formal legal counsel only if necessary.

How to Find the Right Lawyer

Locating a good lawyer who can efficiently help with your particular problem may not be easy. Don't expect to locate a good lawyer by simply looking in the phone book or reading an advertisement. There's not enough information in these sources to help you make a valid judgment.

Personal Referrals

A better approach is to talk to people in your community who have experienced the same problem you face -- for example, if you have a claim of sexual harassment, talk to a women's group. Ask them who their lawyers were and what they think of them. If you talk to half a dozen people who have had a similar legal problem, chances are you'll come away with several good leads.

But don't make a decision about a lawyer solely on the basis of someone else's recommendation. Different people will have different responses to a lawyer's style and personality; don't make up your mind about hiring a lawyer until you've met the lawyer, discussed your case, and decided that you feel comfortable working with him or her.

Also, it may be hard to find lawyer through a personal referral with the expertise you need (for instance, if your friend had a great divorce lawyer, but you need incorporation advice, the referral may not do you much good).

Nolo's Lawyer Directory

Nolo offers a unique lawyer directory that provides a comprehensive profile for each attorney with information that will help you select the right attorney. The profiles tell you about the lawyer's experience, education, and fees, and perhaps most importantly, the lawyer's general philosophy of practicing law. Nolo has confirmed that every listed attorney has a valid license and is in good standing with their bar association. Every attorney has taken a pledge to communicate regularly with you, provide an estimate of the time and cost involved, and provide you with a clear, fair, written agreement that spells out how they will handle your legal matter and how you will be charged. For more information, seelawyers.nolo.com.

Business Referrals

Businesses who provide services to key players in the legal area you are interested in may also be able to help you identify lawyers you should consider. For example, if you are interested in small business law, speak to your banker, accountant, insurance agent, and real estate broker. These people come into frequent contact with lawyers who represent business clients and are in a position to make informed judgments.

Lawyer Referral Services

Lawyer referral services are another source of information. There is a wide variation in the quality of lawyer referral services, however, even though they are required to be approved by the state bar association. Some lawyer referral services carefully screen attorneys and list only those attorneys with particular qualifications and a certain amount of past experience, while other services will list any attorney in good standing with the state bar who maintains liability insurance. Before you choose a lawyer referral service, ask what its qualifications are for including an attorney and how carefully lawyers are screened.

What you may not get from any lawyer referral service, however, is insight into the lawyer's philosophy -- for instance, whether the lawyer is willing to spend a few hours to be yourlegal coach or how aggressive the lawyer's personality is.

Other Sources

Here are a few other sources you can turn to for possible candidates in your search for a lawyer:

• The director of your state or local chamber of commerce may be a good source of business lawyers.
• The director of a nonprofit group interested in the subject matter that underlies your lawsuit is sure to know lawyers who work in that area. For example, if your dispute involves trying to stop a major new subdivision, it would make sense to consult an environmental group committed to fighting urban sprawl.
• A law librarian can help identify authors in your state who have written books or articles on a particular subject -- for example, construction law.
• A women's or men's support group will probably have a list of well-regarded family and divorce lawyers.

Consider a Specialist

Most lawyers specialize in certain areas, and even a so-called "general practitioner" may not know that much about the particular area of your concern. For example, of the almost one million lawyers in America today, probably fewer than 50,000 possess sufficient training and experience in small business law to be of real help to an aspiring entrepreneur.

It can pay to work with a lawyer who already knows the field, such as employment discrimination, zoning laws, software design issues, or restaurant licensing. That way you can take advantage of the fact that the lawyer is already far up the learning curve. Sometimes specialists charge a little more, but if their specialized information is truly valuable, it can be money well spent.

Interview the Prospective Lawyers

When you get the names of several good prospects, the next step is to talk to each personally. If you outline your needs in advance, many lawyers will be willing to meet to you for a half-hour or so at no charge so that you can size them up and make an informed decision.

Personality

Pay particular attention to the personal chemistry between you and your lawyer. No matter how experienced and well-recommended a lawyer is, if you feel uncomfortable with that person during your first meeting or two, you may never achieve an ideal lawyer-client relationship. Trust your instincts and seek a lawyer whose personality is compatible with your own. Look also for experience, personal rapport, and accessibility.

Communication and Promptness

Ask all prospective lawyers how you will be able to contact them and how long it will take them to return your communications. And don't assume that because the lawyer seems friendly and easy to talk to that it's okay to overlook this step.

Unfortunately, the complaint logs of all lawyer regulatory groups indicate that many lawyers are terrible communicators. If every time you have a problem there's a delay of several days before you can talk to your lawyer on the phone or get an appointment, you'll lose precious time, not to mention sleep.

Almost nothing is more aggravating to a client than to leave a legal project in a lawyer's hands and then have weeks or even months go by without anything happening. You want a lawyer who will work hard on your behalf and follow through promptly on all assignments.

Willingness to Work With You

When you have a legal problem, you need legal information. Lawyers, of course, are prime sources of this information, but if you bought all the needed information at their rates -- $150 to $250 an hour -- you'd quickly empty your bank account. Fortunately, many lawyers will work with you to help you acquire a good working knowledge of the legal principles and procedures you need to deal with your problem at least partly on your own.

If you are hoping to represent yourself and use a lawyer only for advice, make sure the lawyer is open to that type of set-up. Likewise, if you're going into business and will draft your own bylaws or business agreements, ask the lawyer if she's open to reviewing your drafts and making comments.

For more tips on choosing and working with a lawyer, see the eBook The Lawsuit Survival Guide: A Client's Companion to Litigation, by Joseph Matthews (Nolo).

Before you meet with a lawyer, you might want to learn some common (and perhaps even not-so-common) legal terms. Get Nolo's Plain-English Law Dictionary, now available as a free iPhone app (also compatible with iPod touch).

Fighting Rental Housing Discrimination FAQ

Learn about illegal housing discrimination, including how to file a complaint.

 

What's Below:

What types of housing discrimination are renters protected from?

What kinds of subtle actions might be illegal discrimination by the landlord?

How can a renter file a discrimination complaint?

What types of housing discrimination are renters protected from?

The federal Fair Housing Act and Fair Housing Amendments Act (42 U.S. Code §§ 3601-3619, 3631) prohibit landlords from choosing tenants on the basis of a group characteristic such as:

• race
• religion
• ethnic background or national origin
• sex
• familial status, including having children or being pregnant (except in certain designated senior housing), or
• a mental or physical disability.

In addition, some state and local laws prohibit discrimination based on a person's marital status, age, or sexual orientation.

Landlords can always select tenants using criteria that are based on valid business reasons, such as requiring a minimum income or positive references from previous landlords, as long as these standards are applied equally to all tenants.

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What kinds of subtle actions might be illegal discrimination by the landlord?

The Fair Housing Acts prohibit landlords from taking any of the following actions based on race, religion, or any other protected category:

• falsely denying that a rental unit is available to some applicants
• advertising that indicates a preference based on group characteristic, such as skin color
• setting more restrictive standards, such as higher income, for certain tenants
• refusing to reasonably accommodate the needs of disabled tenants, such as allowing a guide dog, hearing dog, or other service animal
• setting different terms for some tenants, such as adopting an inconsistent policy of responding to late rent payments, or
• terminating a tenancy for a discriminatory reason.

For more information, see Every Landlord's Guide to Finding Great Tenants, by Janet Portman (Nolo).
 

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How can a renter file a discrimination complaint?

A tenant who thinks that a landlord has broken a federal fair housing law should contact a local office of the U.S. Department of Housing and Urban Development (HUD), the agency that enforces the Fair Housing Act, or check the HUD website at www.hud.gov. (A tenant must file the complaint within one year of the alleged discriminatory act.)

HUD will provide a complaint form (tenants can fill the form out online) and will investigate and decide whether there is reasonable cause to believe that the fair housing law has been broken. If the answer is yes, HUD will typically appoint a mediator to negotiate with the landlord and reach a settlement (called a "conciliation"). If a settlement is later broken, HUD will recommend that the Attorney General file a lawsuit.

If the discrimination is a violation of a state fair housing law, the tenant may file a complaint with the state agency in charge of enforcing the law. In California, for example, the Department of Fair Employment and Housing enforces the state's two fair housing laws.

Also, instead of filing a complaint with HUD or a state agency, tenants may file lawsuits directly in federal or state court. If a state or federal court or housing agency finds that discrimination has taken place, a tenant may be awarded damages, including any higher rent paid as a result of being turned down, an order directing the landlord to offer the rental to the tenant, and compensation for humiliation or emotional distress.

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Losing or Leaving a Job FAQ

You have certain legal rights even as your job is ending.

 

What's Below:

Does my employer have to give a good reason for firing me?

How do I know if I have an employment contract?

What are illegal reasons for firing me?

What can I do to protect any legal rights I might have before leaving my job?

Does my employer have to give a good reason for firing me?

Unless you have an employment contract with your employer, your employment is probably "at will," which means that your employer can fire you for any reason that isn't illegal. (Illegal reasons include discrimination based on race, sex, or another protected characteristic; retaliation for asserting your workplace rights; or punishing you for whistleblowing.)

This means that your employer's reason for firing you can be related to your job (for example, poor performance, excessive absences, or violating a company rule) or totally unrelated (for example, violating a law outside of work, speaking too loudly or abrasively, annoying your coworkers, or any other reason that is not illegal).

If you have an employment contract, however, the terms of your contract will determine the reasons for which you can be fired. Some contracts give a list of things for which the employee can be fired; others leave the issue open. In such a situation, the law usually says that you can only be fired for "good cause" -- meaning a legitimate, business-related reason. If your contract says specifically that your employment is at will, however, you are stuck in the same boat as those without a contract, and your employer has a great deal of leeway when deciding whether to fire you.

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How do I know if I have an employment contract?

When most people think about a contract, they think of a formal written document. And many contracts do look that way. There are other kinds of contracts, however. You and your employer can come to an oral agreement that is never put in writing, and it may still be a valid, enforceable contract. And, if your employer has ever promised you something, that may have created a contract as well.

If you fit into the following situations and are fired for questionable reasons, then you might consider talking to an attorney:

• Your employer, supervisor, or manager promised you that you would only be fired for certain reasons -- for example, if you really messed up in your job or if the company failed.
• Your employer, manager, or supervisor promised you that you would have a long and secure career at the company.
• You and your employer, manager, or supervisor agreed orally on the terms or length of your employment.

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What are illegal reasons for firing me?

Employers do not have the right to discriminate against you in violation of state or federal fair employment laws. Such laws protect against discrimination based on race, national origin, sex, religion, disability, and age. In addition, some states also protect against discrimination based on sexual orientation, marital status, gender identity, whether a person receives public funds, and/or other characteristics. Such state and federal laws also protect you from being fired in retaliation for making a complaint of discrimination or assisting in someone else's complaint of discrimination on any of these bases.

Other state and federal laws also protect workers from being fired for a variety of reasons, including, but not limited to, the following:

• forming a union or being involved in union activity
• complaining about or reporting unsafe working conditions
• reporting illegal activities in your workplace (also known as "whistleblowing")
• asserting your legal rights or engaging in legal conduct, and
• holding certain political or religious beliefs.

If you believe you may have been fired for an illegal reason, contact your state department of labor and/or fair employment agency for more information.

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What can I do to protect any legal rights I might have before leaving my job?

Even if you decide not to challenge the legality of your firing, you will be in a much better position to enforce all your workplace rights if you carefully document what happened when you were fired. For example, if you apply for unemployment insurance benefits and your former employer challenges your unemployment application, you will typically need to prove that you were dismissed for reasons that were not related to your own misconduct.

First, ask to see your personnel file. In many states, employers are required to make it available to you. Make a copy of all reports and reviews in it. Again, some states require the employer to allow you to make copies. Make a list of every single document the file contains. That way, if your employer adds anything later, you will have proof that it was created after the events in question.

There are a number of ways to document events that happened. The easiest is to keep a journal in which you record and date significant work-related events such as performance reviews, commendations or reprimands, salary increases or decreases, and even informal comments your supervisor makes to you about your work. Note the date, time, and location for each event; which members of management were involved; and any witnesses who were present. Keep your notes at home or in a secure place.

Whenever possible, back up the notes in your journal with materials issued by your employer -- such as copies of the employee handbook; memos; brochures; employee orientation videos; and any written evaluations, commendations, or criticisms of your work. However, don't take or copy any documents that your employer considers confidential -- this will come back to haunt you if you decide to file a lawsuit.

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