How to Collect Evidence of Workplace Harassment

Start a dated log today, keep everything on a personal device rather than a work account (after checking your company’s policies around storage – never take anything that has protected patient or client information), and take screenshots instead of forwarding documents to your personal email. Those three habits will typically preserve some of your most important evidence.

Harassment cases are usually built from ordinary records: messages, calendars, reviews, and contemporaneous notes written while events were fresh. The evidence is easiest to gather before any formal discipline occurs, and access to work systems is denied.

What Evidence Matters Most in a Harassment Case?

The strongest evidence tends to be created close in time to the events.

• A dated log. What happened, when, where, exact words if you can recall them, and who else was present.
• Messages. Texts, chat threads, emails, and voicemails from the harasser.
• Your own reports. Any written complaint you made, and the response you received.
• Work records. Reviews, commendations, schedules, and assignments from before and after you disclosed the harassment.
• Witness names. People who saw the conduct, or who noticed you upset afterwards.
• Corroboration outside work. Messages to a friend or family member describing what happened, with a timestamp.
• Performance Reviews. These are crucial in the event you are retaliated against after speaking up.

Notes written the same day are far more persuasive than a summary written months later. Judges and investigators treat contemporaneous records as more reliable.

How Should You Store Evidence Safely?

This is where well-meaning people create problems for themselves.

Take screenshots from a personal device rather than forwarding work documents to your personal email. Forwarding company documents can violate confidentiality policies and give an employer a reason to discipline you, which muddies an otherwise clean case. A photo of your screen taken with your phone avoids that problem.

Other practical rules:

• Keep everything on a personal phone, personal computer, or personal cloud account.
• Be sure you are complying with Company privacy and data policies.
• Do not store your log on a work laptop, work drive, or work account.
• Store a copy of your records in another digital or physical location in case the original gets lost. Capture full context in screenshots, including names, dates, and timestamps.
• Save your performance reviews now, while you still have access.

Assume you could lose access to work systems without warning. Anything that exists only there will not be accessible to you.

Can You Record Conversations in New York?

New York is a one-party consent state. That means when you are engaged in a conversation, you can generally record the conversation without the other party’s consent. However, you cannot record a conversation you are not a party to, without the participants’ consent. Under Penal Law sections 250.00 and 250.05, recording a conversation you are not part of is eavesdropping, and it is a felony.

Three cautions before you rely on that:

• Other states differ. If you are on a call with someone in an all-party consent state, you might need their consent to record the conversation.
• Company policy is separate from criminal law. While a recording can be lawful,it may violate an employer policy, which can lead to disciplinary action.
• Whether a recording helps depends on the case. If you are experiencing harassment at work and want to record colleagues as part of your evidence gathering, talk to an employment attorney first..

You can never record audio or video of individuals in a private setting.

What Should You Write Down After Each Incident?

Keep the entries short, factual, and consistent. For each one, record:

• Date, time, and location.
• Exactly what was said or done, using quotation marks for direct words.
• Who was present, and who may have overheard.
• What you said or did in response.
• How it affected your work, such as a missed deadline or a meeting you avoided.
• Whether you reported it, to whom, and what happened next.

Avoid editorializing. “He said he liked how the dress fit me and stood in the doorway so I could not leave” is stronger than “He was creepy again.”

What Mistakes Weaken a Harassment Case?

A few common missteps cause real damage:

• Deleting messages from the harasser because they are upsetting. Keep them.
• Deleting messages that you sent, because you believe they weaken your case. Keep them and tell your attorney everything, even if you think it will hurt your case.
• Downloading confidential company files or client data, which can become the employer’s counterattack.
• Posting about the situation on social media.
• Quitting without advice, which can affect what damages you are able to recover.
• Signing a severance agreement or release before an employment attorney reviews it.

If you have already done any of these, tell your attorney at the outset. These mistakes are manageable when your attorney knows about them early on.

Deadlines and Why to Talk to an Attorney Before Filing

Gathering evidence and filing a claim are different steps, and the second one has hard deadlines:

• EEOC: 180-300 days (depending on your claims) from the most recent harassing conduct in New York.
• New York State Division of Human Rights: three years for workplace sexual harassment, and three years for other discrimination claims arising on or after February 15, 2024.
• New York court under the Human Rights Law: three years.

As long as you are not up against tight statute of limitations deadlines, speak with an employment attorney before you file a complaint with the Division of Human Rights or the EEOC. Under New York’s election of remedies rule, filing an administrative complaint first can impact your ability to pursue those same claims in New York State court.

Frequently Asked Questions

What if I have no witnesses?

Many harassment cases have none. Your contemporaneous notes, messages, and changes in your work record can corroborate your account.

Can my employer take my phone or ask for my log?

Your personal device and personal notes are yours. This is a strong reason to keep records off company property entirely.

Is it too late if I did not write things down at the time?

No. Write down what you remember now, and date it as today rather than backdating it. Backdating damages credibility.

Should I tell coworkers I am collecting evidence?

Generally no. Besides communicating openly with your attorney, limit the number of people you share information with.

Talk to a Harassment Attorney Before You Take the Next Step

Build the record first, store it somewhere your employer cannot access, and get advice before you file anything or sign anything, keeping deadlines in mind. Following those steps can ensure your case remains strong. Megan Thomas Law, PLLC represents employees throughout Central New York and beyond in harassment, discrimination, and retaliation matters. If you are documenting what is happening at work, reach out for a free, confidential consultation for qualifying cases. Contact Megan Thomas Law.

The information provided in this post is for general informational purposes only and is not intended as legal advice. Viewing this post, commenting, or engaging with it does not create an attorney-client relationship.