For the employment attorneys out there– this is a great blog with up-to-date employment law case summaries from all Circuits.
The blog is authored by Paul Mollica of the Chicago employment law firm Meites, Mulder, Mollica & Glink. Paul is a great colleague for whom the term “lawyer’s lawyer” does not go far enough.
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Say you’re a corporate employee. You came down with a nasty virus. Your sister and her kids passed it on to you; they later apologize for having visited when they were sick. You get a 102 degree fever, fatigue. Doctor says you’ll wind up in bed for a week, gives you a doctor’s note. You hadn’t missed a day of work in years before this. So you call in sick to work, only to hear the HR rep be snide with you, question whether you’re really sick, and badger you before finally granting you the time off. This upsets you. So you can’t help but give her your two cents about her and the company before hanging up.
Say you’re an HR employee. An hourly worker calls in with a “virus.” Just happens to be a Friday. Also happens to be the same worker Manager Jones reported as ”insubordinate” a few weeks ago, in relation to a customer complaint. This worker has found a doctor willing to give him a note for a full week off for a flu virus. What kind of virus lasts a full week– doesn’t the typical flu last 72 hours at most?? Worst case, his flu should be over, and he should be back to work, early next week as opposed to Friday. That department is already short workers. Now, you’ve got to find someone to cover, on short notice. But you’ll have to do it. God forbid HR question the medical necessity of this 1-week flu vacation; if so, you’d have to answer to some lawyer the employee hires, and after that have corporate chew you out.
What stinks about this scenario (besides all of it)?
This blog often says an employee in a dispute with an employer should pay more attention to bottom-line financial considerations (e.g. how much money an employment lawsuit could cost you vs. how much you could win) than to the “principle” of the matter (e.g. how wrong the employer’s action was).
Many folks disagree with this blog’s de-emphasis of “principle.” And there are some very abusive bad employment situations out there one can point to as examples of “principle” being important, even when financial loss was not a factor. I have heard from workers whose bosses subjected them to physical assault, to screaming, and to comments and acts that were so insulting they leave me scratching my head as to which direction this world is heading.
Hostile workplace situations– which often do not involve financial loss, or violate the law– are nonetheless harmful and should be addressed.
So, I must note the principle of the matter DOES matter. If your employer is harassing you, that is wrong, and that matters, regardless whether an attorney tells you that you have a good legal claim or not.
The concern this blog has with “principle” is mainly an issue of FORUM: if you address your issue via a civil lawsuit (say, a discrimination claim) this is often not the best forum in which to pursue a principle. If the “principle” matter is accompanied by an economic loss– for example, if someone is sexually harassed, fired for complaining of sexual harassment, and loses six months of income– then the civil justice system is an appropriate place to try to recover lost money along with the principle. But the civil system does not make an employer change its heart or apologize, and often winning parties do not even feel a sense of vindication, they just have a financial gain.
A principle– such as correcting an employer’s misconduct, ensuring other employees are not harassed or fired for wrong reasons in the future, etc.– is often better addressed by non-litigation means than by litigation.
A person looking to correct an employer’s conduct can (1) pursue informal, non-costly means to address a problem, like a heart-to-heart discussionwith a representative of the employer (hey, sometimes to your surprise there is a person of influence who will listen to you, you both have open minds, and communication works!); (2) contact your legislator and/or pursue legislation to address the problem/issue of “principle” (for example, Wisconsin could benefit from anti-bullying legislation like some other states have, which prohibit abusive conduct by employers); (3) take your labor and your talents to a better work environment, knowing there are better days ahead.
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Are you an employee in an employment dispute, and considering whether to “drop the L-bomb,” and tell your employer you’re retaining an attorney?
Occasionally, an employee/prospective client who consults with me will tell me that he already dropped the L-bomb, and already told his employer he would be retaining a lawyer.
Often, this news was told to the employer in a huff, e.g. “If you insist on denying my medical leave, Ms. Manager, well then you’ll be hearing from my lawyer!” Every once in awhile, an employee who I’ve never even met or communicated with will send an email to the manager he or she’s having a dispute with, and will copy my email address (found on the internet) on the email to the manager. Thus this gives the impression I have been retained to represent someone I’d never been in contact with. (For anyone considering using a lawyer/email address to do this, please DON’T– it’s not a good idea for many reasons).
Making L-bomb threats may feel good when one is frustrated. However, what feels good to say or do “in the moment” of an angry employment dispute can often result in bad, long-term consequences.
In most situations, it will NOT help an employee to drop the L-bomb, and tell your employer that you’re retaining a lawyer.
In many situations, the employee’s mere mention of the L-word makes the employer even more upset, makes the employer take more adverse actions, and makes the situation worse. Most employers are not intimidated by L-threats, because often the threats aren’t carried out. It may be the employer’s experience that they’ve heard many L-bombs dropped, but usually a lawyer was not hired, there was no lawsuit, etc. Or perhaps your employer anticipates you will likely get a lawyer, but the employer has planned for the worst-case L-scenarios and risks, and the employer isn’t worried about your particular legal issues. And sometimes, an employee’s L-bomb threat appears to work, and the employer seems to back off, but only later the employee learns the L-threat just made the employer take more carefully-planned actions, without giving the employee (and her attorney) advance warnings anymore.
In sum, the L-bomb usually turns out to be less intimidating to the employer, and less effective in improving the employee’s situation, than the employee expects.
With all that said, there are certain occasions where the news of hiring a lawyer, when well-delivered, CAN make an abrupt and positive impact on an employee’s matter. And if you’re hiring an attorney long-term, such as for litigation work, the employer must and will be told you have a lawyer at some point, in fairness to the employer. But before you rush to deliver that news yourself, especially if you’re in a huff, you should stop to reflect. Since you’re getting a lawyer involved, then it only makes sense you talk to that lawyer about your plans (including any planned announcement you’ve retained a lawyer) before you put those plans in action.
It’s best that the lawyer and employee/client discuss and plan in advance the announcement that the lawyer was hired. Then that news can be delivered to the employer under carefully-considered timing and circumstances.
DISCLAIMER: The information in this blog is not legal advice, nor does it establish an attorney-client relationship between you and Employee Rights Attorney Michael Brown or the law firm of Peterson, Berk & Cross. Legal advice often varies between situations. If you want legal advice for your specific circumstances, you must consult with an attorney (and an employment attorney for employment matters).
For more information about Wisconsin employment attorney Michael F. Brown and Peterson, Berk & Cross, S.C., please visit here.
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“It is easy to fool yourself. It is possible to fool the people you work for. It is more difficult to fool the people you work with. But it is almost impossible to fool the people who work under you.” — Harry B. Thayer
Commonly, I get calls from workers who are interested in a defamation action, based on false statements an employer made. Defamation is a State-law claim, and I have represented persons for defamation claims under Wisconsin law.
If you are contemplating a defamation action against an employer, consider the things below. (Please note this post does not provide legal advice; if you want legal advice, you must consult about your specific situation with an attorney who is licensed in the State in which the allegedly defamatory statements were made). Read the rest of this entry »
Below are the top 5 mistakes I see employees make in employment disputes. And, I should note, in my own work experience, dating back to the junior high paper route, I personally have made several of these mistakes several times.
Please know these are general opinions, and do not give legal advice for any particular situation. If you find yourself in an employment dispute and want legal advice, you should contact an employment attorney.
Having encountered thousands of employment disputes, here are the top 5 employee mistakes that I observe.
If you are gearing up to give management an earful tomorrow about all the wrongs they have been committing, please give some thought to the big picture before you head off to give your speech. Especially if you are right, and you have stacks of documents proving you are right.
Being right is not enough. If your employer thinks the sky is green, and fires you because you insist it is blue, you may be right but you are still fired. And if you intend on proving (to the point of a legal judgment) that the sky is in fact blue, you have at least a few years of litigation, and a few years of significant expense, to look forward to.
Most companies know this. They know they hold your cards– they hold your job and income, and they can take it away. Abruptly. If they fire you, they know you will have no income, and that you’ll probably need income if you wish to enforce your legal rights. They know litigation takes years to complete, and they know they will likely have much more money to pay toward litigation than an individual like you does.
Are you thinking about all these dynamics when you’re planning to confront your manager?
Now, it’s true that if you complain about your employer’s wrongdoing, there are laws that protect against retaliation. There are also laws that prohibit speeding and Bernie Madoff-ing, and you can see how effective those laws are as applied to reality. Sometimes those laws are effective– sometimes wrongdoers get caught and don’t squirm out of a significant legal penalty, but too often the real-life penalties do not turn out like the wronged person would like to think.
Before you give your manager an earful, make sure you have a back-up plan if they fire you. A real back-up plan. A new job lined up. A large nest egg saved up. Advice from a competent and value-conscious attorney, telling you what potential legal claims and options you have.
But if you believe that simply being right is enough, you are rolling the dice.
Daily Developments in EEO Law by Paul Mollica
Feedback about Value: Two Questions for Employment Attorneys and Others in Legal System
January 27, 2010 by employeerightswisconsinI have two questions for you– if you are an employment attorney, paralegal or other actor routinely involved in employment-law systems (agency investigator, judge, etc., to the extent you are willing and allowed to respond)– about how to improve value in legal representation.
The two questions for you (please respond to both) are these:
(1) What can Plaintiff’s employment attorneys do to provide their clients with better value?
(2) What can Defendant’s employment attorneys do to provide their clients with better value?
You can leave your answer by clicking the Leave A Comment link below, or by emailing me at mbrown@pbclaw.com.
For more information about the questions and feedback I seek, please Read More.
Read the rest of this entry »
Tags: Employee Rights Wisconsin, Employment Attorney Wisconsin, Questions about Value for Employment Law Attorneys, Questions for Employment Law Attorneys and Legal System Actors, Value in Employment Law Representation, Value in Employment Law Representation - Questions for Employment Lawyers
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