This Wisconsin State Bar article describes a recent WI Supreme Court case, US Bank, the outcome of which I think is very helpful for diverse employee benefits situations.  The WI SC was split (the even # was due to Justice Annette Ziegler not participating), and the appellate decision in favor of the employee thus stands.

The upheld appellate holding: “an at will employee does not forfeit benefits [in this case, a vested sales-related bonus per a bonus plan] that have accrued during his or her employment even though the agreement governing those benefits conditions their receipt on the employee’s continued employment if the employer fires the employee solely to prevent the employee from getting the accrued benefits.”

The appellate court (full decision here) relatedly found:

While it is true, as U.S. Bank argues, that in the at-will-employee context there is no “duty to terminate in good faith,” Brockmeyer v. Dun & Bradstreet, 113 Wis. 2d 561, 564, 569, 335 N.W.2d 834, 836, 838 (1983) (at-will employee) (emphasis added), the requirement that parties act in “good faith” inheres in every contract and, therefore, an employer must comply in good faith with its “contractual obligations,” Hale v. Stoughton Hosp. Ass’n, Inc., 126 Wis. 2d 267, 274, 376 N.W.2d 89, 93 (Ct. App. 1985) (“Brockmeyer does not relieve an employer of contractual obligations it has undertaken.”).

The article is geared toward lawyers.  But its advice applies well for anyone involved in any type of conflict, including those of you involved in employment disputes.

The article describes five conflict-handling- personality traits: (1) the conflict avoider; (2) the accommodating style; (3) the competing style; (4) the compromising style; and (5) the collaborating style.

Each trait is discussed, as well as its pros and cons, and good and bad situations where each trait should be considered.

One described trait jumped out at me: the competing style, a type of communication I constantly see MISUSED in the employment context.  As the article puts it:

The competing style is assertive and uncooperative—a competing individual pursues his or her own concerns at the other person’s expense. This is a power-oriented mode, in which one uses whatever power seems appropriate to win one’s own position: one’s ability to argue, one’s rank, economic sanctions. Competing might mean “standing up for your rights,” defending a position that you believe is correct, or simply trying to win.

I wrote a post here that summarizes the bill.

This post (Part II) speculates what effects the bill could have, in real-life, if enacted.  (If you don’t want my opinion, stop here! ).

What would this bill mean to WI employers and employees, if enacted?

The easiest answer: it is impossible to predict all the ramifications.

The second easiest answer: this bill, on its face, is a good thing for Wisconsin employees, and a bad thing for employers.  But would this pro-employee potential manifest itself as a large wave of new lawsuits against employers?

I don’t think so.  There are many employers out there who do not get sued right now, despite an abundance of existing legal theories under which they could be sued.   What’s their secret?  That’s the subject of another post.  But as a general manner, I’d say one common characteristic of employers who avoid lawsuits is that they tend to make tough employment decisions (e.g. terminating an employee) while still treating the affected employee respectfully (e.g. by meeting face to face with the employee to discuss termination, by not needlessly challenging unemployment, and/or by offering a modest severance/release that costs 1/50th of a defense attorney’s litigation fees).

I predict employers who experience mostly positive interactions with employees and no lawsuits would continue to move forward unscathed after passage of this anti-bullying law.

I anticipate that employers and their attorneys will, understandably, worry that enactment of this bill would lead to a lot of new lawsuits.  And it must result in at least some new lawsuits.  But “new” lawsuits would not mean more total lawsuits.

Here’s why.  The enactment of this new law would incentivize many employers to take on a compliance review and take a hard look at their own managers’ and employees’ conduct.  Such reviews would help employers root out abusive actions by those particular managers and employees who are prone to such conduct.

Reducing such abusive conduct would not only reduce the likelihood and liability of new anti-bullying claims, but would also reduce potential exposure to other claims, such as discrimination claims.

Many discrimination claims, both winners and losers, are borne from management treating employees in manners that are overly adversarial.  (This is not to say the employees don’t act adversarial– often they do, and that is commonly part of the problem– but the employees lack  leverage, and they are the ones who lose the job or have another financial loss that leaves them in a position to consider a lawsuit).  Not all harsh or abusive treatment is discriminatory.  However, all harsh treatment does have the affect of antagonizing the abused and/or fired employee.  That employee is thus motivated to pursue a legal claim against his or her former employer.

The anti-bullying legislation would reduce adversarial conduct overall, which should reduce lawsuits overall.  While there would be new lawsuits under new anti-bullying claims/theories, there should be fewer lawsuits in other arenas (such as discrimination claims) which are also primarily motivated by adversarial conduct by management that would be reduced due to the new law.

It is important to note that the new legal claims per anti-bullying laws would be court claims, which (unlike agency-based discrimination complaints) require high legal formalities and fees.  There are higher barriers to enter the court system than the agency/discrimination system.  The court complaints would be more imposing for an employee to file than discrimination complaints, which can easily filed by employees, including many who are not represented by an attorney.

In sum, there are many practical factors that would prevent any epidemic of lawsuits or opening-of-the-floodgates from this anti-bullying law.

While many businesses will understandably fear for the worst (an instinctive reaction based on this law or any new law providing for new employment claims), I’d hope they’d consider two bigger-picture issues: (1) employers who are not getting sued now are doing something right and will continue to do well despite addition of a few potential legal claims to the hundreds of potential claims that already exist; and (2) the new law would actually present a good business opportunity: an opportunity to examine for the presence of managerial abuse, the effects and risks it presents (e.g. lower worker morale, lower productivity, more lawsuits), and to fix those risks and problems before they morph into discrimination claims or court-based lawsuits.

I’d welcome your comments on this issue– I expect many of my business-oriented and employee-rights-oriented friends would take issue with several points above, and it would be good to hear other views.

Wisconsin legislators are considering enactment of a bill, 2009 Assembly Bill 894, that prohibits workplace bullying by employers.

The bill seeks to prohibit abusive work environments in Wisconsin, and to allow a worker subjected to such an environment to bring a civil legal claim.

Importantly, a civil claim would be filed in a Wisconsin county court, as opposed to federal court or an administrative agency like the Wisconsin Equal Rights Division or EEOC (i.e. agencies that handle discrimination complaints).

This post summarizes the bill, its legal requirements, its potential benefits for WI employees, and potential liabilities for employers.

• Prohibited Employer Conduct: Abusive Conduct that Causes An Employee Tangible Harm. The bill prohibits Wisconsin employers from directing “Abusive conduct” toward any employee that causes the employee “Tangible harm.” (When an employee is subjected to abusive conduct that causes tangible harm, this constitutes the so-named “Abusive work environment” that would be legally prohibited– if the abusive conduct is an isolated event and not severe, or if the abusive conduct does not cause tangible harm to an employee, there would be no legally-actionable “Abusive work environment”).
  • “Abusive conduct” is defined to include “repeated infliction of verbal abuse such as derogatory remarks, insults, and epithets; verbal or physical conduct that is threatening, intimidating, or humiliating; sabotage or undermining of an employee’s work performance; or exploitation of an employee’s known psychological or physical vulnerability.”
  • “Abusive conduct,” according to the bill, “does not include a single act unless that act is especially severe or egregious.”
  • Abusive conduct is legally prohibited, and provides basis for a legal claim, if it causes any employee to suffer “tangible harm.”
  • “Tangible harm” is defined as “any material impairment of a person’s physical or mental health or bodily integrity.” (In other words, an employee found to be unlawfully abused would likely have shown medical evidence of physical or psychological injuries– e.g. medical records showing conditions such as anxiety diagnosis, heart problems, etc., that a health professional attributes to the employer’s abuse).
• Retaliation is also prohibited. An employee can bring a legal claim if the employer retaliated against the employee because he or she:
  • opposed an unlawful employment practice (e.g. the employee was fired because she told the employer she opposed its abusive conduct toward other employees);
  • initiated, testified in, assisted in, or otherwise “participated in an investigation, action, or proceeding to enforce a right under this section, including any internal investigation or proceeding, any mediation or arbitration proceeding, or any court action.”

• One-Year Deadline/Statute of Limitations. There is a one-year deadline for an employee to bring a legal claim.  This deadline period starts ticking “one year after the last act constituting the unlawful employment practice occurred or be barred.”  (From this language, it appears this would be a continuing-violation type claim, in which a complaint timely filed within one year of the last act would claw back to cover prior associated/continuous acts).
• Relief/Legal Awards. Relief (legal awards) to an employee could include:
  • The court enjoining the employer or abuser-employees from engaging in abusive practices;
  • reinstatement of the aggrieved employee who had been subject to abuse and discharge/demotion/etc.;
  • removal of the person who engaged in the abusive conduct giving rise to the unlawful employment practice from the aggrieved employee’s work area;
  • medical expenses;
  • back pay;
  • front pay;
  • compensation for emotional distress;
  • punitive damages; and
  • reasonable costs and attorney fees.

• Personal Liability. Abusive employees could be sued in their personal capacity, along with the employer, although there are potential limitations and affirmative defenses (see below).
• Affirmative Defenses. Accused employers and accused abuser-employees would have affirmative defenses to avoid or reduce liability.  These include affirmative defenses:
  • where the employer exercised reasonable care to prevent and promptly correct the abusive conduct at issue;
  • where the aggrieved employee unreasonably failed to take advantage of appropriate opportunities provided by the employer to prevent or correct that abusive conduct;
  • where an adverse employment action against the aggrieved employee (e.g. discharge) and the employee’s complaint is actually based on poor performance, a reasonable performance evaluation, misconduct, economic necessity, and/or a reasonable investigation of a potentially illegal or unethical activity by the employee;
  • where an employee who is alleged to have engaged in an unlawful employment practice (e.g. a manager accused of abusive conduct) may plead as an affirmative defense that the employee engaged in that practice at the direction of the employer under threat of an adverse employment action against the employee for not engaging in that practice.  (This particular affirmative defense would help the accused abusive-employee avoid personal liability, but would not help the employer giving abusive directives to avoid liability).
• Right to Jury? It appears that claims and relief could be decided by a judge rather than a jury, given the bill’s frequent references to a “court” deciding relief.
• Limited Relief Where No Adverse Employment Action. If an abused employee, despite suffering “tangible harm,” does not also suffer “an adverse employment action” (namely, discharge, demotion, suspension, or other form of pay loss), then “the employer’s liability for compensation for emotional distress may not exceed$25,000 and the employer is not liable for punitive damages.”

• No Preemption By Workers Comp Laws. The bill explicitly says that workers comp law would not preempt (block) these new bullying-law claims; workers comp law has, in general, traditionally barred other (non-workers comp) claims involving emotional or physical injuries caused by work or by an employer.  The new WI anti-bullying-law claims could be pursued along with a WI workers comp claim, although the award for the anti-bullying claim could be reduced based on a workers comp award.  This would limit double-dipping that could have otherwise resulted from pursuing both types of claims/legal theories.

This completes the summary of the bill.  I will post a second article (Part II) that speculates about the real-world effects of this bill were it to become law.

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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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!