Before you file

Why this matters

The first weeks decide a lot. Some deadlines are short and cannot be repaired once they pass. Some early choices, such as how you describe your emotional distress, are hard to undo. A little work before you file saves you from the costliest mistakes.

This is general information, not legal advice.

Step 1. Save everything

Before you do anything else, preserve your evidence.

• Emails, texts, chat messages, voicemails, and calendar entries.
• Pay stubs, W-2s, benefit statements, offer letters, and bonus records.
• Leave paperwork, medical certifications, and portal pages from any benefits administrator.
• Your own notes, written as soon after events as you can.

Export data from accounts you may lose access to. Keep copies in more than one place. Keep only documents you received in the ordinary course of your job or that you wrote yourself. Be careful about copying confidential company files, because an employer may later claim you took material improperly.

Start a job-search log on day one. You will need it for damages.

Step 2. Check for an internal complaint step

Many arbitration agreements and handbooks require you to use an internal process first, such as a complaint to human resources or a written notice, before you can file. Some give the employer a set time to respond. If yours does, follow it and keep proof. Skipping a required step gives the employer an argument to delay or narrow your case.

Even if no step is required, a written internal complaint can matter later. It can support a retaliation claim, because retaliation means being punished for complaining. Keep complaints factual and dated.

Step 3. Know your agency deadlines

Agency deadlines are short, and an arbitration agreement does not stop them.

For federal discrimination claims, including disability claims under the ADA, the EEOC says:

"In general, you need to file a charge within 180 calendar days from the day the discrimination took place."

The EEOC adds that the period "is extended to 300 calendar days if a state or local agency enforces a law that prohibits employment discrimination on the same basis." It also says time limits generally will not be extended while you try "arbitration or mediation" or an internal grievance first. So filing an arbitration demand does not pause the EEOC clock.

Other points to know.

• Having an arbitration agreement does not close the EEOC to you. The EEOC states that it remains available to employees regardless of whether they entered an enforceable arbitration agreement.
• For Title VII and ADA claims, you need a Notice of Right to Sue before suing in court. After you receive it, you have 90 days to file suit. If you are headed to arbitration, ask whether a charge is still worth filing to keep your options open.
• Age claims have their own rules. See the EEOC page.

FMLA

The Family and Medical Leave Act has a different path. You may complain to the U.S. Department of Labor, or you may bring a private action. An action must be brought within 2 years of the last event constituting the violation, or 3 years if the violation was willful. See 29 U.S.C. 2617(c) and 29 C.F.R. 825.400(b).

Two cautions. First, your agreement may shorten the time to bring a claim. Second, do not assume that a pending complaint, mediation, or an unfiled demand stops the clock. Check the agreement and, if possible, ask a lawyer.

Check your state

• State and city human rights laws have their own deadlines. Some are one year and some are longer. Look up your state agency's time limit now.
• Some places treat filing with a state or city agency as a choice that can end your right to sue under the same law in another forum. This is called an election of remedies. Read the statute before you file any agency paperwork.
• New York example. New York has state and city human rights laws with their own time limits and their own election rules. The deadlines are not all the same, so check each one separately.

Step 4. Read the arbitration agreement line by line

Find the agreement and read all of it, including any handbook sections it points to. Write down answers to these questions.

1. Which administrator and which rules apply (AAA, JAMS, or something else)?
2. How many arbitrators, and what qualifications must they have?
3. Where is the hearing, and what law governs?
4. Who pays filing fees, arbitrator fees, and costs?
5. Is there a required internal complaint step or required mediation?
6. Does it shorten any time limits?
7. Which claims are carved out, such as agency charges or workers' compensation?
8. Is there a confidentiality clause that binds you?
9. Are there limits on remedies, class claims, or discovery?

The agreement may change the number of arbitrators, the venue, or the claims you can bring. You cannot plan without it. If a term looks unfair, a lawyer can tell you whether it can be challenged. Courts in different states treat some terms differently.

If you cannot find your copy, ask the employer in writing for it. Many keep it in the onboarding system.

Step 5. Mediation

Some agreements require mediation before arbitration. Even when it is voluntary, mediation can lead to an early settlement. The AAA updates its mediation procedures from time to time, so check the current version on its site.

Mediators often ask both sides to sign a mediation agreement. Read it before you sign. It usually makes what is said in the session confidential and may limit what can be used later. Ask yourself three questions.

• Does the confidentiality cover only the session, or also documents, emails, and talks around it?
• Can you use anything said there if the case continues?
• Who pays the mediator?

Check your state

• Mediation confidentiality statutes differ. Some give broad protection and some give less than people expect.
• New York example. Look for both the mediation agreement itself and any state rules on settlement talks. Chapter 13 covers settlement. Do not assume your state works the same way.

Step 6. Decide early how to describe emotional distress

If you seek damages for emotional distress, the other side will ask about your health. Decide before you file whether you will claim only ordinary distress, often called "garden-variety," or a diagnosed condition. The choice affects whether your medical and therapy records stay private. It is much easier to make a careful choice at the start than to undo one later. Chapter 7 explains how this works, and Chapter 12 covers damages.

The same thinking applies to disability claims. You may claim an actual disability, or that the employer treated you as disabled. Each has tradeoffs. A one-time consultation with a lawyer is worth considering for this choice.

Check your state

• Privilege and "at issue" waiver rules for medical and therapy records vary by state and by forum.

Step 7. Learn recording and statement rules

Before you record any call, learn your state's consent rule. Some states let you record if one participant consents. Others need everyone's consent. Rules can differ when a call crosses state lines. Chapter 11 covers this.

From this point on, do not discuss the case with anyone except a lawyer. Texts, posts, emails, and conversations with friends, family, and coworkers can be requested in discovery, and those people can be asked what you said. Chapter 11 explains why and what to do instead.

Check your state

• Recording consent is set by state law. Look up your state's rule before you record anything.

Step 8. Build a facts file

Write a dated, numbered chronology tied to the documents you hold. Keep it as your single source of truth. Every later filing can then be checked against it. Part 1, Chapter 3 shows how to set up a case folder.

Step 9. Gather the money documents

Collect the paperwork that proves lost pay and benefits. You will need it for damages and for showing you looked for work.

Step 10. Consider one lawyer consult

Even if you plan to represent yourself, one consultation on the demand, the deadlines, and your damages theory can prevent early mistakes. Legal aid groups, law school clinics, and bar association referral services often offer free or low-cost consults. Some lawyers also take employment cases on contingency, so ask.

Check your state

• Free legal help differs by state and county. Search your state bar's site for its lawyer referral service and your area's legal aid offices.

Checklist

• Evidence saved in two places.
• Internal complaint step done or ruled out.
• Agency deadlines calendared.
• FMLA time limit calendared.
• Agreement read and key terms written down.
• Mediation agreement read before signing.
• Emotional distress approach decided.
• Recording-consent rule for your state checked.
• Facts file started.
• Case talk with friends, family, and coworkers stopped.

Next: Chapter 2, Filing the demand.

Sources

• EEOC, Time limits for filing a charge
• EEOC, Filing a lawsuit and right to sue
• EEOC, Rescission of policy on mandatory binding arbitration
• 29 U.S.C. 2617, FMLA enforcement
• 29 C.F.R. 825.400, FMLA enforcement, general rules
• AAA Employment/Workplace landing page