Evidence Checklist: What to Save for Your Employment Case

Your laptop, your email account, and your badge can all be shut off on the day you are walked out, so the window to gather what you already have lawfully is short. Several federal deadlines are shorter still. A retaliation complaint under Section 11(c) of the Occupational Safety and Health Act must reach the Secretary of Labor within 30 days of the violation, and Section 11(c) gives you no private right of action at all: enforcement is entirely up to the Secretary, so missing that window can end the claim (29 U.S.C. 660(c)(1), (c)(2)). An unfair labor practice charge must reach the National Labor Relations Board within six months of the conduct complained of, and the Board cannot issue a complaint on anything older (29 U.S.C. 160(b)).

The federal discrimination clock is shorter than most people assume. The baseline is 180 calendar days from the discriminatory act (42 U.S.C. 2000e-5(e)(1)), extended to 300 days in a deferral jurisdiction, meaning one where a state or local agency enforces a law prohibiting discrimination on the same basis. Most states are deferral jurisdictions, so most workers do get the full 300 days, but the extension is conditional rather than automatic. For age claims it takes a state law and a state agency, because a local ordinance alone does not extend the deadline (29 U.S.C. 626(d)(1)(B), 633(b)). Alabama, Mississippi, and Arkansas are commonly identified as having no statewide fair employment agency, so 180 days can be the real deadline there, and coverage can even be basis specific within a single state, meaning a local ordinance can make one protected class deferral eligible while another gets only 180 days. So if you are inside 180 days, do not wait on the extension, and if you are past 180 days, do not assume the claim is dead: confirm the current agency listing for the place you work.

One more federal clock catches people out, and it is narrower than it looks. If you work for a public company, meaning one with securities registered under Section 12 of the Securities Exchange Act or required to file reports under Section 15(d), or for a nationally recognized statistical rating organization, a Sarbanes-Oxley Section 806 whistleblower complaint to the Secretary of Labor runs 180 days (18 U.S.C. 1514A(a), (b)(2)(D)). Employees of private companies outside those categories have no Section 806 route at all. Note also that if you reported a securities problem only inside the company and never to the SEC, Sarbanes-Oxley is your route rather than Dodd-Frank (Digital Realty Trust, Inc. v. Somers, 583 U.S. 149 (2018)).

Preservation is not only your employer's job. Under Federal Rule of Civil Procedure 37(e), electronically stored information that should have been preserved in the anticipation or conduct of litigation, and that is lost because a party failed to take reasonable steps to preserve it, can trigger sanctions. Curative measures require only a finding of prejudice. The severe sanctions, meaning an adverse-inference instruction, dismissal, or default judgment, require a finding that the party acted with intent to deprive the other side of the information. That rule applies to employees as parties, not just to employers.

Employers covered by federal discrimination law, generally those with 15 or more employees, carry their own federal retention duty. Under 29 C.F.R. 1602.14, a covered employer must keep personnel and employment records for one year from the record's creation or from the personnel action, whichever is later, and for one year from the date of an involuntary termination. Once a discrimination charge is filed with the EEOC, that employer must preserve all personnel records relevant to the charge until the charge or action is finally disposed of. If your employer is below the federal coverage threshold, this rule may not reach it at all, which is one more reason to keep your own copies.

Keep copies on your own devices and in your own accounts, never only on employer systems. Save material you are already authorized to have, ideally your own communications, and do not mass-download company files. Whether copying anything beyond your own communications is legally protected varies by state and is highly fact dependent, so that line matters: the section below on what not to touch explains why, and it is the single most consequential choice in this guide.

While your memory is fresh, write a dated timeline: who said what, when, where, and who else was present, with the exact words of the key statements recorded as closely as you can recall them. This is not busywork. In wage cases, the Supreme Court held in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946), that when an employer has failed to keep accurate wage and hour records, an employee who proves the work was performed and shows its amount and extent as a matter of just and reasonable inference shifts the burden to the employer to produce precise evidence or negate that inference. Your own contemporaneous notes, calendars, and shift logs carry real evidentiary weight.

Build a witness list with personal phone numbers and personal email addresses, not work contacts, because you can lose the company directory the same hour you lose your badge. Then gather the paper trail. Most of the following are documents you already lawfully hold or can photograph with your own phone, and together they let a lawyer reconstruct what happened, when it happened, and what your employer said about it at the time:

Comparing pay is often how a worker first learns something is wrong, and federal labor law protects that conversation for most private-sector employees. The National Labor Relations Board's position is that employees covered by the Act may discuss wages with coworkers face to face, by phone, and in writing, that employer policies prohibiting or chilling wage discussion are unlawful, and that retaliating against, interrogating, or surveilling employees over those conversations also violates Section 8(a)(1) (29 U.S.C. 157, 158(a)(1)).

The coverage limits are real and you should know where you stand before you rely on this. The Act's definition of employee excludes supervisors, independent contractors, agricultural laborers, domestic workers in a private home, and employees of a parent or spouse, and its definition of employer excludes federal, state, and local government and Railway Labor Act carriers (29 U.S.C. 152(2), (3), (11)). Supervisor status turns on function rather than job title: it requires authority to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, discipline, responsibly direct, or adjust grievances, or effectively to recommend such action, using independent judgment rather than routine or clerical authority.

Falling outside the Act does not always mean having no rights. Many states give public employees parallel statutory rights to engage in concerted activities for mutual aid and protection, and several extend collective-activity rights to farmworkers or domestic workers. Those public-employee bargaining statutes exist in most but not all states and vary in scope, so this one has to be checked where you work.

None of this is a union-only right. 10.0% of US wage and salary workers were union members in 2025, about 14.7 million people, and just 5.9% in the private sector, so most workers who rely on Section 7 do so with no union anywhere in the picture. The Bureau of Labor Statistics built its 2025 annual figures from 11-month averages because the October 2025 Current Population Survey was not collected during the federal shutdown, and it cautions that those figures are not strictly comparable with other years.

The federal Wiretap Act is a one-party-consent statute: a private person may record a wire, oral, or electronic communication they are a party to, unless the recording is made for the purpose of committing a crime or a tort (18 U.S.C. 2511(1)(a), 2511(2)(d)). Federal law is a floor, not a ceiling, and stricter state law still controls. That is where workers get hurt, because a recording that is lawful on one side of a state line can be a crime on the other, and an unlawful recording hands your employer a counterclaim.

Nine states clearly require the consent of all parties before you record, whether in person or by phone: California, Florida, Illinois, Maryland, Massachusetts, Montana, New Hampshire, Pennsylvania, and Washington (see, for example, Cal. Penal Code 632(a); Fla. Stat. 934.03(2)(d); 720 ILCS 5/14-2(a)(2); Md. Cts. & Jud. Proc. 10-402(c)(3); N.H. RSA 570-A:2; 18 Pa.C.S. 5703, 5704(4); RCW 9.73.030(1)). These statutes are amended regularly, so confirm the current text of your own state's law rather than relying on a roster you read somewhere.

Most of those nine statutes reach only conversations that are private or confidential, but do not build a plan on a no-expectation-of-privacy theory, because two of them have no privacy element at all. Massachusetts turns on secrecy: G.L. c. 272 s. 99(B)(2) defines oral communication simply as speech, s. 99(B)(4) defines interception as to secretly hear or secretly record, and Commonwealth v. Hyde, 434 Mass. 594 (2001), upheld a conviction for secretly recording police at a public traffic stop. Montana bars hidden-device recording of a conversation without the knowledge of all parties, subject only to enumerated exceptions for public officials performing official duties, people speaking at public meetings, and people who were given warning (Mont. Code Ann. 45-8-213(1)(c), (2)).

Five more states are partially or contestedly all-party, which is why published counts of two-party-consent states range from eleven to thirteen depending on methodology. Connecticut is all-party for recording a private telephonic communication under its civil statute and one-party under its criminal eavesdropping statute (Conn. Gen. Stat. 52-570d(a) versus 53a-189). Delaware has two conflicting provisions, one reading all-party and one permitting recording by a party (11 Del. C. 1335(a)(4) versus 11 Del. C. 2402(c)(4)). Michigan's statute reads all-party, but Sullivan v. Gray, 117 Mich. App. 476 (1982), recognized a participant exception that the Michigan Supreme Court has never resolved. Nevada is all-party for telephone calls and one-party for in-person conversations. Oregon is one-party for telephone and other telecommunications and all-party for in-person oral conversations. In those five states the answer is genuinely unsettled or splits by the type of communication, which calls for state-specific counsel rather than a general rule.

Two practical points close this out. The person on the other end of a call may be sitting in an all-party state, so on any multi-state call the safe working assumption is that all-party rules apply. And whatever your state allows, there is an alternative that is always lawful and that employment lawyers rely on constantly: right after an important conversation, sit down and write detailed notes with the date, time, location, everyone present, and the words used as closely as you can remember them.

Assume that everything on an employer-owned device or system is visible to your employer. There is no general federal privacy right in an employee's use of employer equipment. The Supreme Court in City of Ontario v. Quon, 560 U.S. 746 (2010), expressly declined to define employees' privacy expectations in employer-provided communication devices, and the Fourth Amendment reaches only government employers, so a private-sector employee has no federal constitutional claim at all. A few state constitutions go further: California's constitutional right to privacy applies to private employers and supports a private right of action, and California courts apply it to workplace monitoring and testing (Cal. Const. art. I, s. 1; Hill v. National Collegiate Athletic Assn., 7 Cal.4th 1 (1994)). That is a state rule, not a national one.

The Stored Communications Act cuts in both directions, and the direction that surprises people is the one aimed at the employee. The Act makes it a federal offense to intentionally access without authorization, or to exceed authorized access to, a facility providing electronic communication service and thereby obtain a stored communication (18 U.S.C. 2701(a)). It expressly exempts conduct authorized by the entity providing the service (18 U.S.C. 2701(c)(1), (c)(2)). That provider exception is why an employer running its own email system can generally read messages stored on it without liability, and why an employee who logs into a coworker's account, or back into a former employer's account, to gather proof can face liability.

Whether your employer must tell you it is monitoring your electronic activity is a state-law question, and most states require nothing. Four states currently require notice of electronic monitoring: New York, Connecticut, Delaware, and, since July 14, 2026, Maine. New York requires notice upon hiring, employee acknowledgment in writing or electronically, and a conspicuously posted notice, with civil penalties of $500, $1,000, and $3,000 for first, second, and third-and-subsequent offenses (N.Y. Civ. Rights Law 52-c). Maine's statute goes past notice alone: an employer may not use electronic surveillance at all unless it notifies the employee beforehand, must disclose surveillance during the interview process, must give annual written notice, faces restrictions on audiovisual monitoring in an employee's residence, personal vehicle, or on the employee's property, and may not install data-collection applications on employees' personal devices (26 M.R.S. 620-A). Maine's law is very new, has no case law and little agency guidance, and its exclusions are untested, so treat its edges as unsettled. Connecticut's notice-content requirements are scheduled to expand on October 1, 2026 to require identifying the specific premises locations where monitoring may occur (Conn. Gen. Stat. 31-48d). These rosters change from session to session, so verify your own state before relying on it. In the states with no notice statute, a lack of notice usually does not by itself make the monitoring unlawful.

One rule here has no exceptions worth gambling on: never contact your lawyer from a work email account or a work device. Emailing your own attorney from company email risks waiving the attorney-client privilege, and the outcome varies by jurisdiction and by the wording of the employer's policy. The decision most often cited for protection, Stengart v. Loving Care Agency, Inc., 201 N.J. 300 (2010), turned on a personal, password-protected webmail account used on a company laptop, and that same court confirmed that employers may lawfully adopt computer-use policies and discipline or fire employees who violate them. Courts elsewhere apply multi-factor tests, commonly the Asia Global factors, and have found waiver where the employer's policy clearly disclaimed any expectation of privacy. No state has held that messages sent through a company-hosted email account are categorically privileged against the employer. Use a personal device, a personal account, and personal internet.

Do not copy or remove employer documents to build your case before a lawyer has told you it is safe. Whether an employee is legally protected for doing that depends entirely on the jurisdiction and is highly fact dependent. The Sixth Circuit applies a six-factor reasonableness test and held in Niswander v. Cincinnati Ins. Co., 529 F.3d 714, 727-28 (6th Cir. 2008), that delivering confidential documents to counsel was not protected activity. The New Jersey Supreme Court went the other way in Quinlan v. Curtiss-Wright Corp., 204 N.J. 239 (2010), adopting a seven-factor totality test under which such conduct can be protected, and yet that same state held in State v. Saavedra, 222 N.J. 39 (2015), that Quinlan does not immunize an employee from criminal prosecution for the taking. There is no national rule, and the courts that have looked hardest at this have reached opposite answers.

A 2021 Supreme Court decision gets over-read constantly. Van Buren v. United States, 593 U.S. 374 (2021), narrowed the federal Computer Fraud and Abuse Act: an employee who is authorized to view information does not exceed authorized access under 18 U.S.C. 1030(e)(6) merely by using it for a disloyal purpose. That removes one federal theory against an employee who copies files they could already see. It does nothing for an employee who reaches into systems, folders, or accounts they were never given access to. It does not touch state computer-crime statutes, several of which still reach access or use beyond the scope of the express or implied consent of the owner, so the state law where you work can still reach conduct the federal statute no longer does. And it leaves contract, trade-secret, and duty-of-loyalty claims entirely intact.

There is one narrow federal safe harbor, and it points in a specific direction. Under 18 U.S.C. 1833(b), federal law immunizes an individual from criminal and civil trade-secret liability, under both federal and state law, for disclosing a trade secret in confidence to a government official or to an attorney solely to report or investigate a suspected violation of law, or in a document filed under seal. An employer must include notice of that immunity in any contract or agreement with an employee that governs the use of a trade secret or other confidential information, and employee there includes contractors and consultants. An employer that omits the notice may not be awarded exemplary damages or attorney fees under 18 U.S.C. 1836(b)(3)(C) or (D) against an employee who was never given the notice. The notice requirement applies to contracts entered into or updated after May 11, 2016. In practice, the safe harbor means handing sensitive material to your own lawyer or to a government official, not posting it, forwarding it, or showing it to coworkers.

The rest of this list is short, and every item on it is avoidable. Opposing counsel looks for exactly these missteps, so before you act on frustration or fear in the moment, slow down and read it twice:

Whether you can demand to see or copy your own personnel file or payroll records is purely a state-law question, and the range is enormous. California gives current and former employees 30 calendar days to obtain personnel records and 21 calendar days to obtain payroll records, with the definition of personnel records expanded effective January 1, 2026 to include education and training records (Cal. Lab. Code 1198.5(a), (b)(1); Cal. Lab. Code 226(b), (c)). Several other states, among them Massachusetts, Connecticut, Illinois, Michigan, Minnesota, New Hampshire, Pennsylvania, and Wisconsin, have their own inspection statutes with different deadlines and different exclusions, with response times generally running somewhere between about seven and thirty days. Many states give no general inspection right at all, and a state with no general right may still have narrower access rules, for example to medical reports from a work-required exam or to a pay statement on written request. Do not build your plan around a file request your employer may be free to refuse.

Two things soften that. If your employer is covered by federal discrimination law, generally an employer with 15 or more employees, its retention duty under 29 C.F.R. 1602.14 means the records should still exist, and that duty hardens into a duty to preserve everything relevant once an EEOC charge is filed. Below that coverage threshold the federal rule may not apply at all, so your own copies may be the only copies. And once you have a lawyer and a filed case, litigation discovery reaches material that no state inspection statute covers.

Organize what you have before your first conversation with a lawyer, because a well-ordered first meeting lets an attorney spot your strongest claims and your shortest deadlines in a single sitting. If you are holding something and you are not sure you should have it, a recording or a company file, do not publish it, post it, or send it to anyone. Bring it to the lawyer, who can evaluate it under the 18 U.S.C. 1833(b) safe harbor and under the law of your state before anyone acts on it.