There are a lot of articles claiming the public is scientifically illiterate, but this article is the first I’ve seen making assertions about biblical illiteracy. (I am pretty bible-illiterate, I must confess, and I do not post this to judge).
As a general matter, I believe that most of us don’t know much about most of what we talk about.
Of those workers in Wisconsin who file discrimination complaints without an attorney, most have no idea how much a fair settlement value would be for their case. And how should they? For nearly every employee complainant, this is their first legal complaint, and they have no familiarity with the legal process, with what sorts of awards can be won, or with what typical settlement ranges are.
So I can’t blame any employee for not knowing what their case could be “worth”- that’s a very difficult thing for a non-attorney to get experience with or solid information about.
However, an employee who does not have an idea of his or her case’s value will often make mistakes that cause their case not to be settled, and litigation to be prolonged (and the case possibly lost).
In my experience, employees who do not have an accurate idea of what their case is worth will tend to highly overassess the worth. This overassessment is not usually based on the law, but rather based on the employees’ ”gut” feeling of how much the employer should pay, based on how unfair the employer’s conduct was.
It is not uncommon for an employee complainant to assume that his case could be worth hundreds of thousands of dollars, or several years’ worth of severance pay, when in fact his specific case has legal and practical limitations that make his case worth far, far less than what he thinks. (Now, there are a few employment discrimination cases out there that are in fact worth hundreds of dollars in damages, but those are the vast minority of cases).
Often, as a result, employees who have these wrong assumptions will: (1) make settlement offers that are way too high, often higher than legal damages/award maximums; (2) cause the employer to feel the employee is completely unreasonable, and stop engaging in any further settlement talks.
You don’t want to block yourself out of a reasonable settlement offer because you are asking for the moon and don’t know it.
On the other hand (although less common), some employees will significantly underassess the value of their case. For example, an employee may focus on the value of a discrimination claim and not know that she in fact has a potential claim for unpaid overtime wages that has strongly supportive evidence and is worth far more in damages/monies than the discrimination claim being pursued.
This is where attorneys can help. Employment law attorneys who have worked on and evaluated many discrimination claims can provide a thorough legal analysis of what your specific case may be worth, and whether your analysis may be missing any important factors. The attorney’s assessed value may be much lower than what you want to hear- or maybe higher, to your pleasant surprise- but either way, it’s best to get all surprises removed from the equation as early as possible.
Here is a post that discusses “Things to Consider Before Filing a Discrimination Complaint at the Wisconsin ERD or EEOC,” including information about valuing an employee’s Wisconsin discrimination case. That post, and this one, are for general information only. Again, if you want a specific evaluation of your own discrimination case’s value, you should consult with an employment attorney to get a complete assessment.
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.
When will those who are “liberals” and “progressives” (which includes me) realize that we are just as responsible as “conservatives” for the epidemic of negative and hateful communication inflicting public discourse nowadays?
Conservatives—particularly extreme-side-of-the-party folks like Rush Limbaugh and Newt Gingrich— are often criticized by progressive folks for communicating in a hateful way.
I agree any negative or hateful communications by Limbaugh and Gingrich should be open to criticism. But what is more disconcerting to me are those progressives who do not recognize when similarly negative or hateful tones inflict our own demeanor (as they easily and instinctively can) when we encounter people holding beliefs (like extreme-end-political beliefs) with which we disagree.
I should mention that I have my own body of unfortunate literature—dating back to my grade school days—where I have written things that were very negative and disparaging toward others with whom I disagreed. Heck, this post probably goes too far. So I am not putting myself on the high horse here by any means. Rather, I’m asking others to consider joining me on the big bus called work-in-progress.
It is one thing for a progressive to politely—and strongly— dispute an opposing viewpoint or policy, especially if it is important, empirically incorrect, or both. But it is quite another thing to needlessly make the disagreement personal, and question the other person’s motives or character.
And it is another thing still to completely avoid self-reflection on our own communication style, as if the fact that we are right on the merits (we think) provides a ticket to not only describe the merits, but to further elaborate in a righteous, condescending and/or hypocritical tone about why our opponent is deserving of condemnation, name-calling, and in some cases, violence.
Consider these excerpts of progressive authors’ communications, which are all from today’s (6-11-09) Huffington Post, a progressive blog:
(from a blog header by a progressive blog author): Death at the Holocaust Museum and the Degradation of the American Dialogue… There is no Environmental Protection Agency to measure hate pollution in national dialogue, and no mechanism in place to warn us when the poisonous rage spewed into the national consciousness by shock-jocks, poisonous television pundits, megachurch leaders, and oh-so-subtle politicians, has reached dangerously toxic levels. No, there is only the result: widows, orphans, collective grief, and an absolute refusal on the part of our loudest, coarsest voices to take any responsibility for their part in the carnage. Click here to read more….
…
(blog header by another progressive blog author): The Health Insurance Mafia Deserves a Good Screwing …
…
(blog header by another progressive blog author): Sexism Against Conservative Women Is Still Sexism
…
When progressive readers of a hugely-read and influential blog need a reminder that conservative women are just as entitled to human dignities as progressive women, it’s high time for progressives to get off our high horses real fast.
The Huffington Post, to its credit, also has a blog post today by Russell Simmons- which couldn’t be timelier- titled “Cleansing the Hatred From Within.”
I have heard many unemployed workers who are in protected classes under discrimination law (e.g. workers with disabilities, workers over 40 years old) express frustration that employers will not hire them for jobs they are qualified for, and the workers feel this is for discriminatory reasons based on their protected class (e.g. hiring employer does not want to hire workers who have disabilities, who are over 40).
There are times when these workers’ beliefs are in fact supported by evidence, such as discriminatory statements made by the employer during a job interview, the employer having hired a far less-qualified worker who was not in the protected class, etc. So I will acknowledge, as Kurt Cobain once said, “Just because you’re paranoid doesn’t mean they aren’t after you.” And hey, my job is representing workers who – in my view of the evidence- the employer was “after.”
However, job applicants should know there are many times when hiring employers are not “after” you. There are many, many non-discriminatory reasons (fair and unfair) that an employer may have for not hiring someone. There may be 100 more qualified applicants that you don’t know about. The employer’s owner may have wanted to hire his incompetent nephew for the job, which is unfair, but is not unlawful under WI law.
There are many times when job applicants” beliefs of discrimination are not borne of hard evidence, but instead stem from the frustration in not getting a job. This frustration is completely understandable, as is wondering about discrimination, as discrimination does exist and is not uncommon.
However, just because discrimination is “out there” doesn’t mean it is everywhere.
Further, even if discrimination is in play for a given job opportunity, it does you no good to adopt defeatist beliefs like “They won’t hire me because of my age- heck, most employers won’t hire me because of my age.” Even if it were true that most employers exercise age-discrimination in hiring (which is not true in my view), it doesn’t do a worker any good to stew about that, or lose motivation because of that. Again, most of the time, discrimination is not at issue in hiring decisions.
For those occasions where there is evidence that discrimination is an issue, that is not something to defeat you, but rather an obstacle to work around.
In my view, the most common areas of discrimination in job-hiring context, which are supported by the most evidence, is discrimination based on the applicant’s disability, age, or criminal record (criminal record is basis for a protected class under Wisconsin law, although this is not the case under federal law or many other states’ laws). Within these protected classes, people who fall on the end of the spectrum- people with the most severe disabilities and medical needs, people of increasingly advanced age, people convicted of types of crimes that are strongly shunned by the public- probably are wise to keep potential discrimination in mind as they apply for jobs.
However, such at-risk workers should not dwell on discrimination, or stew about how bad it is (even though it is). Rather, discrimination should be thought of as something to adjust to. If your reality is that you are dealing with a hiring employer with discriminatory beliefs (e.g. they believe that a person over 70 cannot perform the job at issue), then your task is to politely deal with that belief and try to change it (e.g. point out the rich experiences and resume that a 70-year old has that a 30-year does not). Anticipate discriminatory concerns (e.g. that an older worker will want to retire abruptly), and affirmatively and politely address them (e.g. explain what your own goals are, and how your work life with the employer would not live out the employer’s fears).
I don’t want to get too motivational-speaker-like here, and I acknowledge that there are a whole lot of people, including many clients I’ve had, who can tell me a lot more than I can tell them about job-hunting tips. But when it comes to concerns of discrimination, real or perceived, I can tell you firsthand that it is counterproductive to deal with those concerns by stewing about them or viewing them too negatively. Again, discrimination is something you can deal with and you can overcome, if and when it presents itself.
As a progressive Democrat, I want to believe in my heart that when progressives say “no one is above the law,” we mean it. I also want badly to believe it is true when progressives say it is a fundamental value of ours that all individuals should be provided with fair legal proceedings (i.e. due process) before being condemned as guilty by the public or by some politician, and before being deprived of rights, liberty and/or property.
By due process extending to “all individuals” this includes (at least in my understanding) all individuals. “Enemy combatants” or alleged terrorists are individuals, so they qualify, and progressives routinely acknowledge this. But here’s the catch: “Neo-cons” are also individuals, so they should also be entitled to due process before being publicly condemned and deprived of rights or property. Same goes for “religious fundamentalists.” And, most pertinent to this post, same goes for alleged torture supporters in the Bush administration.
Today, I was very disappointed to review an email and web link I received from the progressive organization CREDO (which I think is usually very supportive of individuals’ rights), asking people to assume that an individual- William Haynes, a former attorney with the Bush administration who has NOT yet been subject to legal investigation or due process- is a “mastermind” of torture.
Worse, CREDO asks that people sign a petition that seeks to deprive Mr. Haynes of a job he has been working since leaving the Bush administration. The job, of note, is with a private entity, Chevron, and is unrelated to Mr. Haynes’ government job or alleged involvement with torture. CREDO calls this job “cushy,” and apparently finds high income relevant to its demand that Mr. Haynes be fired.
CREDO sums up its request as follows: “The legal mastermind behind Bush’s torture policies deserves prison, not a giant paycheck.”
I generally appreciate and support CREDO’s recommendations and actions, but I couldn’t disagree more with this one.
An appropriate approach for CREDO and the public would be – as opposed to demanding Mr. Haynes be terminated from his Chevron job- to demand an impartial investigation of his conduct with the government, and to demand initiation of criminal action if the investigatory evidence warrants that. CREDO has made similar demands in the past, and has otherwise been highly supportive of individual rights and due process.
However, when we progressives say “no one is above the law,” to me that really means no one. President Bush and Mr. Haynes, definitely- but this also means CREDO, you and me are also subject to the law and must also respect and not contravene due process. We, as progressives, are not above the law just because we are not supporters of President Bush, or just because we didn’t allegedly torture anybody. We have made other types of huge mistakes. We’re human and, for just one example of our common mistakes, we are prone to occasionally hop on moralistic high horses that cause us to abandon progressive principles to service a thirst for righteous condemnation, like CREDO’s call to action.
CREDO’s request that Mr. Haynes be deprived of liberties and property (those associated with his current job), based on past conduct which has not yet been legally investigated or prosecuted, is exactly the same philosophy as to legal rights and civil liberties that the Bush administration viewed to apply to “enemy combatants” and that progressives have opposed vehemently. Yes, exactly.
If you are a progressive, and your gut reaction to this post is to be defensive on CREDO’s behalf and think up rationalizations or distinctions to claim CREDO’s call to action is fundamentally different than President Bush’s approach to civil liberties, then I would say that type of defensiveness (which I myself have made the mistake of having on different issues) is yet another similarity with President Bush. Part of being a true believer in individual rights and due process is keeping our eyes open to our own frequent and inevitable mistakes, and our frequent needs to be subject to criticism and correction by ourselves and others.
All of us- progressives, conservatives, independents, and US citizens of all types and kinds- are heavy contributors to the US’s existing deficiencies with individual rights and due process. We all have contributed by our actions, by our inaction, and by our many instances of apathy. I would add that progressives are especially responsible, because we claim to be the most attuned to principles of individual rights and due process, and as such we should be most sensitive to these issues, and should be the most primed to call a spade a spade when it crosses our radar.
Yet I expect most progressives who read CREDO’s request will get caught up in the emotion of President Bush-bashing and will make the horrible mistake of assuming there is a difference between (1) deeming someone a “mastermind” terrorist and demanding deprivation of their rights and property before legal investigation and due process has occurred; and (2) doing the same thing with a “mastermind” torturer.
I don’t know about the rest of you, but what I want from government (and from CREDO, Chevron, and everyone else) is a fundamental and entrenched commitment to fair inquiry and due process. If that fundamental structure is restored, then you and I can hopefully be saved from our own irrationality when we go off on future rants (and we will) about others who we have pre-judged without complete and fair information.
Does Wisconsin and the U.S. generally need “tort reform?” Are too many (or an increasing number) of lawsuits being filed, with too many plaintiffs receiving large awards, and too many businesses suffering due to law suits by individuals?
As a plaintiff’s employment attorney, I have shared my own observations and biases in trying to answer questions like these. See, for example, my blog posts “Biggest Risk to Employers? Frivolous Suits? No. The (Expensive) Certainty of Being “Right” and “Corporate Rhetoric, the Decline of Individual Rights, and What You Can Do About It.”
My views aside, the best answers to the questions above are non-biased and objective answers, grounded in statistics and facts. While it is my opinion no one can give answers that are purely objective and non-biased, folks interested in the questions above should check out this resource, which is much more objective than my blog posts: “Civil Justice in Wisconsin: A Fact Book, with Commentary” by Marc Galanter and Susan Steingass, of The University of Wisconsin Law School.
(I heard of this fact book via the excellent blog by Jon Groth, a Wisconsin personal injury attorney).
I’ll quote the Fact book’s conclusion below, which is a summary of some important information covered, although you should read the full fact book (a 23-page Adobe document) for detailed and statistical information that addresses questions like those above. The full fact book is here.
“Conclusion
In many ways, Wisconsin is very much like its neighbors and like the rest of the nation. Overall, resort to the courts is increasing, but most of this increase is in the family and contract areas. Tort filings are decreasing relative to population and in absolute numbers. The portion of cases that reach trial, especially jury trial, is decreasing. When cases do get to trial, median awards are mostly lower than in the recent past.
If we look further to see how Wisconsin is distinctive, we find that even with the limitations of the data, Wisconsin has a modest amount of
litigation in comparison with our neighbors and the rest of the nation. Most non-family civil cases are filed by businesses against individual defendants; where individuals sue businesses, the awards are comparatively modest.
This relatively low resort to the courts is reflected in a lawyer population that is relatively small and slow growing. The costs imposed by the civil justice system are palpable; the benefits that it confers are less apparent – indeed to the extent that they are effective, they fade from view. The same system of justice that protects citizens, protects and facilitates businesses. Businesses use the civil justice system to enforce contracts and collect debts. The security of property rights afforded by the civil law enables them to raise capital, borrow, and extend credit. They enjoy the protections of the tort system in deterring injurious behavior by others. All of this is so routine that it easily escapes our attention. This should remind us that citizens and businesses have a shared interest in an effective civil justice system. We hope that this booklet helps provide the basis for an informed public discussion.”
I am on the lookout for helpful resources for employees who have been laid off, particularly resources for laid off workers in my state of Wisconsin.
If anyone knows of helpful resources in the areas below, I’d be very grateful if you emailed me at mbrown@pbclaw.com with a description of the resource(s), and their contact information. Ultimately, I’d like to post a list on this blog and hopefully provide a centralized list of resources and information that provides assistance in many areas, above and beyond the employment law information in this blog.
I’m familiar with many fine organizations and resources already- if you know that I already know you and your organization, please know you’re already on my list- I’m just in info-collecting mode right now, and you’ll be posted!
These are the types of WI worker issues (beyond employment law) for which I’d like to learn of resources/organizations:
- Grants or financial assistance (other than unemployment), governmental or private, that are available to workers in WI or nationwide who lost jobs/have low income.
- Free or low-cost advice about health insurance options for workers, especially laid off workers in WI.
- Free or low-cost advice about Wisconsin unemployment benefits/proceedings (I know some fine attorneys across WI who provide unemployment representation, but like me they are in private practice and must charge for their services; I am looking for all non-profit legal-aid-type organizations in WI that have attorneys available for free unemployment representation from beginning to end).
- Free or low-cost advice about mortgage or housing problems, especially resources available for individuals with these problems in WI or nationwide.
- Free or low-cost advice about job-searching or vocational training for workers, especially laid off workers in WI.
- Free or low-cost advice on consumer or credit issues (repossession of car, etc.), particularly for individuals in WI.
- Free or low-cost financial planning or debt management advice, particularly for individuals in WI.
- Grants or financial assistance that are available to workers with disabilities in WI or nationwide.
- Free or low-cost advice about social security disability benefits.
- Free or low-cost advice about short term and long term disability benefits (I also know many good WI attorneys who work with these benefits and have free consults and reasonable rates; again here I’m looking for any free or low-cost resources for legal representation).
- Free or low-cost advice about Wisconsin workers compensation law (I know some fine workers comp attorneys across WI who provide free consults and who I refer to, although all are in private practice; I was wondering if anyone knew of a non-profit organization that had workers comp attorneys available for free representation from beginning to end).
- Free or low-cost advice for WI workers who have had difficulty finding employment due to their arrest or conviction records (I have represented several such workers, as have many good WI attorneys I know; again here I’m looking for any free or low-cost resources for legal representation, or for vocational assistance as well).
Again, please send any resources and their information/contact information to me at mbrown@pbclaw.com. Also, I am sure that in the list above I left out several important issues- please email me with any additional issues as well. Thank you!
If you were laid off from your job, and have the chance to elect or continue COBRA benefits, please know that a new law was passed which could possibly provide you with federal subsidy money (paid via a tax credit) that would pay for 65% of several months of COBRA costs, leaving you responsible for 35% of those (usually high) costs as compared to 100%.
According to the U.S. Department of Labor (DOL), “If you were offered Federal COBRA continuation coverage as a result of an involuntary termination of employment that occurred at any time from September 1, 2008 through February 16, 2009, and you declined to take COBRA at that time, or elected COBRA and later discontinued it, you may have another opportunity to elect COBRA coverage and pay a reduced premium.”
Please know there are several specific and detailed eligibility rules to get the new COBRA subsidy, so the purpose of this post is not to tell you that the COBRA subsidy money is guaranteed for your situation. Rather, this is a heads up that the COBRA subsidy may be available, depending on a laid off worker’s circumstances, and as such is worth you looking into.
As a first matter, you can review information about the new COBRA benefit at this web page of the Department of Labor (DOL), which describes general information about the COBRA subsidy benefit. From this web page, you can link to more specific information, such as DOL “Fact Sheets” for employees and employers, FAQs, etc.
DOL describes specific employee-eligibility requirements (e.g. required date range that layoff occurred, required formwork, etc.) at this web page. DOL has answers to employee FAQs here.
Once you have read information from DOL, if you think your situation is such you may be eligible in the COBRA subsidy, you could then contact the COBRA administrator as identified by your employer (usually, the employer will list a COBRA contact/phone number in its employee handbook, mailed COBRA materials, or other sources).
If you contact the COBRA administrator, they should be familiar with the new COBRA subsidy, whether you are eligible and if it can be applied to your specific situation, what you’d need to do, what your deadline(s) are, and how payments and COBRA benefits would work.
I wish you the best of luck, and hope the COBRA subsidy is of great assistance to many laid off employees.
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.
As of late, with the economic downturn, many employees have tried contacting Employee Rights attorneys, including my firm and me, but have had trouble being able to speak to an attorney, or to arrange a consultation, etc. In the past, I tried to offer brief and free phone consults for all who called, but at this time logistically I cannot speak with many people, or have consultations free of charge.
If you don’t speak to me, please know this is nothing at all personal about you or your matter. Also, if you have troubles reaching other employee rights attorneys, please do not take that personally, either.
If you think there is any chance you may proceed with a legal action, it is important you promptly learn about your rights and any deadlines (statutes of limitations) that may apply.
If you want to speak to an employee rights attorney in Wisconsin or any other State, please consider visiting the National Employment Lawyers Association (NELA) website here, where you can do a by-State search, and get listings of employee rights attorneys’ contact information. I give you this link with the disclaimer that I am not recommending that you retain, or not retain, any particular attorney who may be listed. This is just a centralized resource where many employee rights attorneys’ contact information is located.
Hopefully, you will get through to an attorney who is available and who you are comfortable with.
If anyone knows of a free attorney/legal resource(s) that is available and focused on receiving inquiries from employees with employment law concerns, particularly in WI, please let me know. I’d be happy to forward the contact information.
Thank you very much for your inquiries, and sorry again if we don’t get to talk.
Sorry, Can’t Give Legal Advice Via Blog Comments
Posted in Comments- Blog, Employee Tip - Considering a Legal Action with tags Blog Comments, Employee Rights, Employee Rights Wisconsin, Legal Advice, Wisconsin on June 12, 2009 by employeerightswisconsinI want to write and say, first of all, that I appreciate the Comments this blog has received- thanks to those of you who have commented!
Please know that if your Comment concerns your own specific situation- i.e. you have questions about your specific employment situation, or want to know the legal rights you have in a specific situation or legal proceeding involving your employer- the blog Comments are not a place where I can provide legal advice for such specific circumstances.
On several occasions, I have received Comments from well-intended folks who understandably want questions answered about their specific employment law situations. However, blog Comments are not a place where an attorney can thoroughly assess a situation, and provide informed legal advice. A phone or office consultation is needed at minimum.
Please do not take it personally when I do not post Comments that ask questions/ask for legal advice, or answer the questions within them.
If your questions involve a Wisconsin-based employer (or an H-1B employer in any State), then you can contact me (Employee Rights Attorney Michael Brown) via my law firm Peterson, Berk & Cross, at 920-831-0300.
If your matter concerns non-Wisconsin matters, and non-H-1B matters, please go to this website: www.nela.org, where you can search for employee rights attorneys in your particular State. For those of you who have made Comments, thanks again for reading, and for your interest in contacting me.
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