Are You a Manager Given a Severance Agreement? Learn the Risks of Trying to Manage Negotiations

In my job as an employee rights attorney, I’ve encountered thousands of situations where a fired worker contacted me about a severance agreement they were presented.  In some situations, such workers have potential legal claims and strong leverage to negotiate better severance terms and higher payment.  Generally speaking, fired managers and executives have a better opportunity (than do non-managerial workers) to negotiate a significantly improved severance.

There are many common reasons for this.  One reason is that employer companies often believe (often correctly) that former managers have important knowledge, i.e. knowledge about the company’s employment and severance practices, about sensitive factual circumstances that give rise to potential legal claims, etc.  If that manager is wise enough to partner with an attorney with employment-law know-how (which can then be applied to the factual circumstances at issue), the employer knows it faces a credible threat of legal exposure.  The employer thus treats that manager/attorney combo more seriously and reasonably in negotiations as compared to the lone fired employee who does not have an attorney yet is blowing off steam about how she or she “could” get an attorney and “could” sue for [insert wildly-misdiagnosed legal claim], plans to write the board of directors (who at best won’t care or change anything), etc.

Yet I often see managers who, before getting an attorney’s assistance, do many of the things above and squander opportunities for a better severance. Why is this?  My theory is that managers are used to getting things done, i.e. successful project management, and approach the severance negotiation like any other project that they are qualified to handle.  The problem is, they are not qualified to handle severance negotiations. Not well anyway.  Why?  Because knowing your legal leverage points for a severance requires diagnosing the correct potential legal claims.  Many managers who initiate severance negotiations assume they have correctly diagnosed the best potential legal claims and leverage points.  The vast majority who bring their diagnoses to me are wrong. But in that case, I can take what they told me (the true facts), correctly identify the best potential legal claims (or lack thereof), and help negotiate a better severance in those instances that is possible.

If you are a manager presented a severance agreement, and you are about to attempt negotiations on your own, take pause for a moment.  (Of course, don’t pause beyond any deadline!).  Do you really know what your best potential legal claims and leverage factors are?  Do you really know the potential legal value (damages) of those claims?  Do you really know what you’re doing?  It’s okay to admit you don’t.  We all encounter projects we can’t manage.  I myself am incapable of managing a plumbing project (even a minor one), and, knowing that, I find someone to do that, saving myself hundreds of dollars I’d cost myself by botching the job (and creating more expense later).  If a manager botches severance negotiations, he or she could squander thousands of potential dollars, depending on the situation.  So consider contacting an attorney, whether it’s me (in my admitted self-interest) or someone else who seems to know what they’re doing, whom you can readily identify by them listening to your situation and spouting off terms like “Title VII”, “wrongful discharge contrary to public policy” or other legal evaluations you hadn’t considered in your own diagnoses.

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Filed under Employee Tip - Considering a Legal Action, Employee Tip - Hiring an Attorney, Employee Tip - Severance & Settlement

Class Certification Motion by H-1B Workers in Case Against Access Therapies, RN Staff et al

A class certification motion and brief were filed (link to the brief is here), by H-1B workers represented by the attorney-authors, with regard to the 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 if you have any information or questions about the case.

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Summary Judgment Motion by H-1B Workers in Case Against Access Therapies, RN Staff et al

A summary judgment motion and brief were filed (link to the brief is here), by H-1B workers represented by the attorney-authors, with regard to the  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 if you have any information or questions about the case.

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Filed under Employee Tip - H-1B

Reply Brief Filed Regarding Witness Tampering Motion Against Access Therapies et al

A reply brief was filed (link to the reply brief is here), by H-1B workers represented by the attorney-authors, with regard to the 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 if you have any information or questions about the case.

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May 28, 2014 · 8:49 am

It May Be Easy to File a Complaint, But Not a GOOD Complaint

Often, workers file their own employment law complaints, such as for wage or discrimination issues, because the complaints seem easy to prepare.  For example, you may have seen a complaint form on a government website, and it may look simple.  So why not complete the form and submit it?  It’s easy, right?

Know this.  Filing a complaint may be easy, but filing a GOOD legal complaint is not easy.  In fact, it’s very difficult for someone who is not an attorney to prepare a good legal complaint that presents your strongest case.  A good legal complaint involves:

- Knowledge and evaluation of ALL potential legal claims to ensure you are considering all your possible rights and options;

- Knowledge of the potential VALUE of a legal claim if you win, and whether that value is worth pursuing when compared to potential investments of time, work and/or money on your part;

- Deciding whether it’s a good idea to pursue ANY legal complaint, or if other courses of action are better (e.g. having an attorney write a settlement offer letter to the employer first, etc.);

- Choosing the BEST claims to pursue;

- When writing a complaint, being accurate, and including all necessary information supporting the best legal claims;

- Not including irrelevant information in the complaint that distracts, and/or upsets, the legal decision-makers who review the complaint; and

- Knowledge of the PROCESS involved after a complaint is filed, and planning for that process and associated responsibilities.

I don’t write all this to discourage you from pursuing a legal complaint.  Rather, I want to encourage you to think about the issues above.  If you are able to talk to an attorney in advance (and obviously it doesn’t have to be me), that can help you sort through important issues before you make mistakes.  Those issues are in fact complicated, however simple an initial complaint form may seem to appear.

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Filed under Considering Legal Action - Employee, Employee Tips - Unpaid Wages

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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Filed under Considering Legal Action - Employee