Filing of Plaintiffs’ Motion for Witness Tampering and Discovery Misconduct Sanctions in H-1B Workers’ Case Against Access Therapies, RN Staff et al

Recently, H-1B workers represented by the attorney-authors filed a Motion for Witness Tampering and Discovery Misconduct Sanctions in the workers’ case against Access Therapies, Inc., and RN Staff Inc. d/b/a Rehability Care, and associated company representatives.

Please contact attorney Michael Brown at (920)238-6781(920)238-6781 if you have any information or questions about the case.

Click here if you’d like to review the brief accompanying the motion.

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Considering Legal Action? Don’t Let Worries About Travel Stop You

When people tell me about their legal concerns, some say they are worried if they take legal action against an employer, especially one who is in a different location from them, they will have to travel too much during the course of the legal action.

In reality, rarely does a party have to travel to pursue their rights.  I can count on one hand the types of events that might require a party to travel.  Those events (which only could arise after a legal complaint is filed) are:

  • a deposition (which could be required in person, but can be conducted via phone if agreed);
  • mediation (a settlement conference which sometimes is mandatory, and sometimes a mandatory mediation requires in-person attendance); and
  • trial.

More often than not, cases are resolved before any of the events above occur, so the party never needs to travel.  Most of the clients I have represented have not traveled at all by the time their cases resolved.  Most of my clients’ cases have resolved via settlements (contracts agreeing to financial terms, closing of the legal matters, etc.).  Settlement is often a better option than litigating through trial or thereafter.

So even those matters that involve lawsuits that are filed and pursued for months or years will usually only involve one to two instances of travel at most. When a given client of mine is scheduled for a deposition or mediation that is outside my client’s area, I explore if alternatives not involving travel are possible, such as a phone appearance.  Also, if a client of mine is outside of the United States and has concerns about being able to enter or re-enter the country to pursue legal rights, there are usually options available to resolve those concerns (e.g. phone appearances, visas for legal matters, etc.).

The bottom line is you should not assume frequent travel, or any travel, will be required if you retain an attorney and explore legal options.  The attorney will discuss with you what events, if any, are likely to occur that could require travel. You should not let assumptions or fears about travel stop you from exploring your possible legal rights or legal action.

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Is Your Employment at Will? Don’t Assume You Have No Legal Rights

Employment at will is the general concept that an employer can fire an employee for most reasons.  You have probably heard about the general rule of employment at will, and how it allows employers to conduct many types of job terminations and unfair actions.

But if you have at-will employment, you should not assume you have no legal rights.  As I have described in this article, there are exceptions to employment at will where broad categories of at-will workers do have potentially strong legal claims for diverse employment situations.  Also, upon closer examination, those categories of legal rights (described on a high level in that article) consist of a substantial number of legal claims.  For example, legal rights generally labeled as “discrimination” and “whistleblower retaliation” rights encompass thousands of distinct legal claims, the applicability of which depend on the particular situations, Federal and State laws involved, etc.

Given the vast possible legal claims out there, the employment at will concept should not cause you to make definitive assumptions or decisions.  With that said, if the concept has given you a sense of skepticism that makes you want to learn more before taking legal action, that’s a good thing.

It is an important decision whether you take legal action or not.  So important that, in my view, it warrants you have an attorney evaluate your matter before you act on your assumptions.  As mentioned, some workers don’t explore valid legal rights because they wrongly assume employment at will bars those rights.  On the flip side, some workers assume they do have strong legal rights when they don’t, and rush ahead and file legal claims (e.g. discrimination claims they file without an attorney’s assistance).

My bottom-line suggestion is this: if you are not an employment law attorney, then do not diagnose your own legal claims or lack thereof.  If you consult with a competent employment attorney, and he or she gives you an evaluation whether you have a viable claim, then that is a sound basis upon which to base your actions or inaction.

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Hit a Grand Slam Sale, And Thrown a Lowball Commission? Don’t Get Beaned.

ImageAs an attorney who practices in contractor rights and worker rights issues, I encounter many different underpayment scenarios.  While all income theft is troubling, it’s particularly tough to encounter those folks who are made victims of their own success.  Namely, it’s hard to see a commissioned worker or contractor make a huge sale — earning them a fixed (and large) commission under a contract or commission plan– and at that point, the benefiting company tries to change the deal.  It’s as if you can see the wheels turning in the company rep’s mind right after the sale: “I didn’t know you’d make that kind of sale, and a 10% commission could be that much.  I think I’ll throw the company’s weight around, and get you to accept something less so I get more.”

If you find yourself in this situation, you’ll certainly feel great pressure.  The pressure of wanting to keep what you rightfully earned, versus the pressure of not wanting to lose your entire job or contract if the company you’re dealing with is willing to go to serious lengths in throwing its weight around.  This article proposes factors to consider if you find yourself in this situation.

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Should You Get a Local Attorney?

Local Article PhotoIf you’re looking for an attorney to help with a legal dispute, you may have thought of this question: “Should I get an attorney located near me?”

My answer, which is a typical lawyer answer, is “maybe.”  It depends.  Lawyers in the U.S. are generally licensed to handle Federal-law matters all across the U.S.  I personally handle Federal- law matters in numerous States, and represent clients located in States other than my mine (Wisconsin) and even in other countries.  Those clients retained me because I have experience with Federal- law issues at hand.  For them, expertise trumped location.  Why? Because the quality of legal work is the most important issue.  And most legal work is remote: the vast majority of legal work is done via a computer, phone, and mailed or electronically- transmitted documents.  Even clients who live very close to me will only very occasionally meet in person with me, and that is almost always because we decide to meet in person, not because we have to.

With that said, there are some types of matters where an attorney’s location and licensure is very important to a matter.  For example, if a given issue concerns a particular State’s law or legal proceedings, then it will be necessary to have an attorney who is licensed in that State’s laws.  Some of my Federal cases also involve secondary State- law issues, in which event I work along with co-counsel attorneys located or licensed in the pertinent States.  Not all cases warrant this type of work-sharing, however, and an attorney should be able to explain whether it’s necessary or advisable.

Any attorney who you contact should be able to tell you whether your matter involves a State- law issue, or issue that the attorney is unable to assist you with (due to lack of licensure, etc.).  The key is to contact the attorney and ask.  If you feel a particular attorney can help you with your specific issues, don’t assume location is a barrier.

In my view, there are two better questions than “Should I get a local attorney?”  Those are: (1) Can a particular lawyer you’ve learned about help you with your concerns? (2) If that lawyer is not located near you, has that lawyer explained whether his or her location would present a barrier for you?

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What’s the Value of Your Employee Rights Case?

If you’re a worker who is pursuing (or thinking about pursuing) an employment-law complaint, you may have ideas about the monetary value your case is worth.  Unfortunately, workers’ own case valuations are usually wrong.  Very wrong, in fact.

Workers often come up with wrong valuations because they rely on factors that are important to the workers– such as the obviousness of a particular lie an employer told– but that are often unimportant within legal forums.  For example, an employer is legally allowed to tell many kinds of lies and make many kinds of wrong decisions.  Only certain lies and wrongs are legally actionable.  You’re unlikely to know which is which unless you’re an employment attorney or repeatedly deal with the laws and legal forums at issue.  Otherwise, you have no true framework or basis for assessing your own case’s value.

As an employee rights attorney, my sense of a case’s value is influenced by many factors, both legal and practical.  These factors include:

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Playing the Wrong Cards in Severance Negotiations

It is common for employees (including professional and executive employees) to play the wrong cards, so to speak, during severance negotiations.  That is, employees negotiating severance agreements often raise issues to their employers that they believe, incorrectly, provide strong leverage or potential legal claims.  Don’t get me wrong.  Many employees who are fired and/or approached with a severance agreement do in actuality have potential legal claims that could provide strong leverage in severance negotiations or litigation.  Sometimes it takes me a few hours of discussion to identify such material legal issues and evidence, but they’re often there.  The problem is, most employees who have winning issues fail to recognize what those winning issues are.  And in their negotiations with employers, they commonly focus on issues that seem to be winners from a common-sense perspective (or workplace-observation – or Google-search- perspectives), but are in fact issues the employer’s employment lawyer or HR rep would quickly deem useless in the legal world.

Most employers involved in severance negotiations get the assistance of representatives who have repeat experience with scenarios and litigation relating to job terminations and severance agreements.  They are adept at diagnosing issues that could present legal exposure to the employer.   Are you?  If you think you’re playing a winning hand, but the employer sees the hand is in fact a dud, you may want to have an employee rights attorney review the hand before you set it down.  If a proposed severance agreement’s terms are acceptable, of course, there is no need to show anyone any cards.  In the end, it’s better to show an employer no cards than bad cards.  Bad cards do not leverage better severance terms and may invite negative reactions from the employer that make you worse off.  If you think you may have good cards (i.e. potential legal claims with strong merits), consider checking if an experienced legal representative agrees before you share those views with the employer.

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