To Resign or Not Resign? That Is NOT the Question. Consider These Factors First…

Say your employer told you that your employment is going to end, and you have the “choice” to resign rather than be fired. (Many employers do this in conjunction with presenting a severance agreement that has a “resignation notice” as an exhibit the employee can sign and submit). Understandably, if your employer puts you in this situation, you may view your impending decision in the terms the employer presented: “Should I resign or not?”

This is actually not the question you should decide. At least not at first. There are more important factors to consider before giving the employer an answer (or a signed resignation notice, etc.).

These other factors, and other questions, should first be considered:

  • A documented “resignation” could possibly hurt your chance to receive unemployment benefits.

A given State’s unemployment office may consider a resignation to be basis to disqualify a worker from unemployment benefits eligibility. Although a given State may also ask questions to determine if a so-called “resignation” was involuntary and initiated by the employer. A given State may award unemployment benefits for various forced-resignation scenarios. The bottom line is this is something you could learn more about, with respect to your given State and situation, before make the “resignation” decision presented by the employer.

  • Would the employer agree to not contest your unemployment benefits, and to (correctly) report to the unemployment office that the ending of your employment was involuntary (whether labeled a forced “resignation” or not)?

This relates to issues above. If an employer agrees, e.g. via a severance agreement, not to contest unemployment and to acknowledge the truth to unemployment authorities that the ending of employment was involuntary, then there may be less risk in agreeing to a forced “resignation”, depending on the State and it unemployment eligibility criteria involved. In my home State of Wisconsin, many such forced-resignation scenarios do qualify for unemployment benefits.

  • If you are considering potential legal claims and/or severance negotiations, agreeing to a “resignation” could potentially hurt related legal rights or leverage.

 

Generally speaking, legal claims under employment law (e.g. a legal complaint alleging a job termination violated discrimination law) are tougher to win if a worker is alleged to have resigned rather than been discharged.  Please note that every situation is different, and I have represented workers with forced “resignations” who had very successful litigation and severance outcomes. But documenting a resignation can present a very real risk factor for many workers who have potential legal rights that could be explored in severance negotiations and/or litigation.

  • If you did not agree to call your job ending a “resignation”, would the employer disclose the fact you were involuntarily terminated to any new prospective employer(s) you applied to?

Many workers are rightfully concerned that a discharge looks bad on their “record”, and see a resignation as looking better when communicating to a new potential employer, etc. (Of course, having a “resignation” on one’s resume or job application could also conceivably raise an issue with a new employer, if it looks like the resignation occurred with a gap in service, or no new job to go to). One issue of note is that many former employers do not themselves disclose to prospective employers any information about how the former employee’s job ended, whether it was a discharge or resignation, etc. Many employers follow a “neutral reference” policy where they only disclose very limited and neutral job reference information, i.e. the worker’s dates of employment, job title and perhaps pay rate. If your former employer would follow such a neutral reference policy, that information could be helpful in deciding whether to agree to a forced “resignation” or not.

 

  • Whether you decided to label your job-ending a “resignation” or not, how would you best explain the circumstances of your job ending to a new potential employer?

You should envision what you would say to a new potential employer under either scenario, and would of course need to speak truthfully about not only the agreed categorization (i.e. “resignation” vs. discharge), but also speak truthfully about factual circumstances. If you agree with your former employer to take the “resignation” option and to categorize your end of employment as such, you will still probably need to explain related factual circumstances with a new potential employer– which will likely want to know what happened and ask questions accordingly. You would also need an explanation for a new employer if you did not agree to the forced “resignation” option. Before making a decision as to “resignation”, you should visualize each potential scenario and each associated communication with a new prospective employer that would occur.

Conclusion

Before answering an employer’s request to categorize their ending of your employment as a discharge versus forced “resignation” option, you should consider the issues above, as well as any other related issues of importance to you. There is no best-answer that applies universally for all workers in this situation, but considering the issues above– before making your decision– will likely help you arrive at the best decision for you.

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Discharged or Offered a Severance? Don’t Drive Down a New Road Before Ensuring it’s the Right Direction

Many employees who are discharged or offered a severance will, understandably, research internet information about what options they may have.  For example, it is common for a discharged employee to research internet information about legal complaints, such as discrimination or wage complaints. For workers offered a severance agreement, it is common for them to research internet information about what a “typical” or fair severance payment may be, what leverage may exist to negotiate better terms with the employer, etc.

Many workers then rely on such internet research to take various actions, e.g. they go on to file a discrimination complaint, or try to negotiate better severance terms with their former employer, using the internet information they reviewed.

Once action is taken, the employee has significantly changed his or her situation– for good or for bad.

I liken this to taking a road trip. Once you have driven down a certain road for awhile, you have committed yourself to a journey. If you failed to plan appropriately beforehand, that trip could lead to big problems. For example, if you fail to research or identify how long or how much time the trip would be, you may fail to fuel up your vehicle sufficiently, and could later find yourself stranded on the road. And associated with that unforeseen bad consequence come towing costs, lost time, and other headaches. Alternatively, you may take off on a trip and find yourself in a long drive down a road to nowhere– or, even worse, a road to an unpleasant destination– when other roads (unbeknownst to you) would have been far more promising.

Before you take action with regard to a discharge or severance, consider whether you’re truly going to head down the right road.  To determine that, you’d need to have answers to these questions:

  • How long will the chosen road/option be and take to complete? How do you know (e.g. have you learned of that option’s timing and proces from a credible source, such as an attorney experienced with that option)?
  • What specific good and bad result(s) could occur from taking that road? How do you know?
  • What other roads/options exist, and what specific good and bad result(s) could occur from taking those roads? How do you know?

Educating yourself about options is a good thing. Especially if the information is free. That includes talking to an employee rights attorney (yes, like me :)) who offers a free initial evaluation of a discharge or severance matter.  But once you take action, you may have committed yourself to processes, consequences and/or costs that you did not initially anticipate.

As an attorney, I get inquiries from workers at many stages of their journey, and I can usually offer at least some help no matter what. But the most effective time for you to capitalize on legal advice is to obtain it before you take action. Too often, I get inquiries from folks who have (again, understandably) traveled far down the wrong road. Sometimes, a detour– and decent trip– is still possible. But rarely does the same degree of potential exist as for those who seek direct legal advice before committing to a given path.

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Areas of Law That Could Relate to a Severance and/or Job Termination

If your employment has been terminated and you have been offered a severance agreement, many areas of law could potentially be involved with your situation.  An employee rights attorney who reviews a severance situation will have a mental checklist of such laws to consider.

Those laws generally include: (1) contract law; (2) laws that make certain job-terminations unlawful, e.g. various Federal and State discrimination laws, whistleblower-retaliation laws, “wrongful discharge” laws, etc.; (3) wage laws that govern severance pay or payment of residual unpaid wages from employment such as commissions, bonuses, overtime, deferred compensation, etc.; (4) laws that govern employer-provided benefits such as health insurance coverage, 401k or pension benefits, etc.; (5) laws involving State benefits such as unemployment benefits or workers compensation benefits; and (6) laws pertinent to post-employment actions such as searching for or starting new employment, e.g. laws governing non-compete agreements, trade secrets, defamation, or privacy that prohibit a former employer or employee from undertaking certain actions (e.g. working with certain competitors to a former employer) or making certain kinds of statements (e.g. disclosing proprietary information, making false and reputation-damaging statements), etc.

Each of the general areas above has many sub-categories and nuances. For example, “contract” law involves not only a review of language in formal contracts between a worker and employer, but knowledge of external laws such as State statutes and court decisions that set forth how certain contract principles should be interpreted.  Also, sometimes a given document or spoken agreement that a worker may think is not a contract– e.g. a commission or bonus “plan”, a handbook provision, etc.– can in some instances be considered a contract by a legal authority.

A worker who is presented a severance agreement will not, unless he or she is an employment attorney, be aware of all the laws above and their potential legal rights or responsibilities.  Yet, a severance agreement, once signed, typically waives the worker’s rights to pursue legal claims under most laws.   All too often, workers sign severance agreements that waive legal rights without knowing beforehand what all their legal rights are.  Relatedly, it is common for workers to waive rights that had potentially significant value.

This post has hopefully given an overview to help “know what you don’t know”, so to speak.  Only an employment attorney could give an informed assessment of actual potential legal claims and rights. If such an attorney is willing to consult with you at no charge (and many employee-rights attorneys do in fact provide free initial phone calls, myself included), I see no downside to having the attorney review your situation and potential legal rights above.  In those instances an attorney finds potential legal rights with significant value, often a severance can be negotiated and/or successful legal action can be pursued with an outcome better than the initial severance offer.  Employers typically have the assistance of employment attorneys in drafting severance agreements and evaluating laws at issue, including those above.  So learning more about your own potential legal rights can help even the playing field, so to speak.

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Valuing Severance or Wage Rights? Assumptions and Do-It-Yourself-Research Are Not Your Friend

This post is for those evaluating the financial worth of an employment-law related issue. For example, maybe you are reviewing a severance agreement that offers $X, or your employer is offering you a partial payment of $Y toward unpaid wages, e.g. commissions or bonus.

In such financial-evaluation situations, some employees rely on information from the employer that is inaccurate and serves the employer’s financial interests. So they accept the employer’s say-so as the final word, and sign off on what the employer wants without further exploration.

More often, employees will rely on their own assumptions and/or their own internet research, and try to identify a fair value on their own.

Please know this: your own assumptions and research are not your friend. You are far more likely to identify the wrong answers than the right ones.

Before you take action (e.g. before you negotiate an unpaid wage payment or sign a severance agreement) based on  your own assumptions or research, consider talking to an employee rights attorney first. Many of us offer a free initial phone call for such matters.

If an experienced employee rights attorney reviews an employment-valuation scenario, or starts a research project, he or she has the following advantages that you will not:

– He or she will have at least three years of law school training on the structure of the legal system and legal research methodologies, e.g. knowing the general nature and hierarchy of laws, knowing which research resources are valid and which ones aren’t, etc.

– He or she will have years of work experience with MANY employment laws that may be involved with your situation, AND with those laws as CARRIED OUT in the real world, i.e. “law in action”. For example, many employees who do their own legal research focus on one or two areas of law, when in fact a long list of laws potentially apply. Further, even if you somehow identified the correct (and best) laws or legal forums, how those laws and forums operate in the real world would be outside your experience and knowledge base. For instance, my law school training– and all the research resources I had– did next to nothing to train me for negotiating with an employer or dealing with a particular court, agency or judge. Another example: if straight out of law school I had read a particular government agency’s website that listed all the applicable legal standards and all the good things an employee could win from a legal claim, I wouldn’t have guessed that that same agency dismisses over 75% of employees’ complaints of particular types. Simply put, experience teaches many valuable things that reading a website (even an accurate one) does not.

Only through experience did I learn the approaches that worked and those that didn’t.  Whatever laws or approaches your are contemplating have been explored before. Before your put your wheels to the road, so to speak, there is great value in talking to someone who has taken that path (and many related paths) already.  So before you take action with an employer that is based on your own assumptions or research, please consider contacting an employee rights attorney and letting that person know your situation and your thoughts. The odds are very high the attorney would mention different considerations, and would recommend a different course of action, than those you are contemplating.

 

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Successful DOL Decision for H-1B Worker/Surgeon With Complaint Against Southern Illinois University School of Medicine

An H-1B worker represented by the attorney-author and his co-counsel was awarded $223,884.27 in unpaid wages, in the decision and order below, by the Office of Administrative Law Judges (OALJ) of the U.S. Department of Labor (DOL).

Our client is a surgeon who formerly worked as an H-1B employee for the Southern Illinois University School of Medicine (SIU School of Medicine), in the job position of Assistant Professor in the Department and Division of General Surgery.

OALJ’s order found that SIU SM underpaid the H-1B worker, and failed to pay her the required actual wage, as compared to wages that SIU SM paid other surgeons in the same department and division who had the same Assistant Professor position.

SIU School of Medicine has refused to pay the unpaid wages, and has appealed the order. The H-1B worker has appealed one issue in the order, and will argue on appeal that she is owed over $200,000 in additional unpaid wages related to “clinical” compensation paid pursuant to compensation terms of SIU School of Medicine and its affiliate SIU Physicians & Surgeons, aka SIU Healthcare. She will present legal arguments that per the employer’s terms and arrangements, the “clinical” compensation was not assured (e.g. sometimes it was not paid or was subject to retroactive deductions, etc.) and it did not fulfill H-1B regulatory criteria necessary for the compensation to count toward required wages.

The attorney-author is actively investigating SIU School of Medicine’s wage practices, not only with regard to their employees who worked as H-1B workers, but also with regard to female workers employed by SIU School of Medicine, regardless whether such female workers were employed as US citizens, as H-1B workers or otherwise. 

I would be interested in hearing from physicians or other medical workers who have been employed by SIU School of Medicine anytime during the last seven years and: (1) have been employed as an H-1B worker; or (2) have been a female physician or medical worker of any citizenship or visa status while employed by SIU School of Medicine.

If you wish to discuss any of these matters, please contact attorney Michael Brown at 920-757-2488 or mbrown@dvglawpartner.com.

The referenced DOL decision is below:

 

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Finding an Attorney and the Difference Between an “Employee Rights Attorney”, “Employment Attorney” and “Labor Attorney”

Many workers, understandably (as non-lawyers), misunderstand and misuse the terms “Employee Rights Attorney”, “Employment Attorney” and “Labor Attorney”.

Sometimes, a worker’s misunderstanding doesn’t make a difference. For example, if a worker calls me up and asks if I’m a “Labor Attorney”, then I am able to talk through what his understanding of that term is, see if he is correct, learn about his circumstances and then tell him if I can assist him or, if not, refer him elsewhere. No harm done with such exchanges.

However, sometimes workers block themselves out of good options, attorney-wise, by their misunderstandings of the above terminology, which affects who they seek out (or don’t) in the first place. And not all attorneys will explain key differences between attorney types, or make referrals– heck, sometimes I don’t, e.g. due to time constraints if someone calls me on a hectic day.

So I’ll describe here the differences between the above terms concerning work laws and lawyers.

In the big picture, workers’ and  employers’ legal rights are covered by the global category “Employment and Labor Law” or similar phrases that include both “employment” and “labor”.

“Labor Law”, or a “Labor Attorney”, deal with work laws involving unions. The vast majority of workers in the U.S. are not in a union and as such do not need a labor attorney.  Yet many workers hold the belief (understandably, based on the practical similarity between “labor” and “employment”) that a “labor lawyer” and “employment lawyer” are the same thing. They are not.

Bottom line thus far: if you want legal help with a work situation and you are not a union worker, then you should avoid searching Google for, or contacting, a “labor lawyer”. You may head down the wrong path, needlessly limit your options, or get feedback from an attorney who specializes in work disputes of a different kind than yours.

Workers who are not in a union (i.e. most of you) should seek out an “Employee Rights Attorney” as a starting point for help with your work disputes. Lawyers who refer to themselves as “employee rights” attorneys generally focus most or all their legal practice on representing workers (not employers) and generally are able to help non-union workers (i.e. most workers) with most types of work disputes.

Nearly all employee rights attorneys I know actively represent a broad range of workers, spanning from entry-level workers to top-level workers in large organizations. I personally have handled minimum-wage cases representing entry-level hourly workers, and complex litigation representing top-level executives, physicians and so on. So the “employee” in employee-rights is itself a broad term. But it does not involve a focus on representing employers. Unfortunately, many of the attorneys who focus on representing employers are not identified (in ads, bios, etc.) with titles like “Employer Defense Attorney”, “Employer Compliance Attorney,” and such. More often, I see employer-side-attorneys labeled with broader and vaguer terminology like “Employment Attorney”.

The term “Employment Attorney”– should you see it on a Google search, in the Yellow Pages, an attorney’s bio, etc.– could encompass employer-representation and/or employee-rights representation. It’s really not telling you specifically which “side” of employment disputes, i.e. employer or employee side, that the attorney typically represents. It’s true that a given attorney who identifies as an “Employment Attorney” is likely knowledgeable about a broad range of non-union work laws and disputes.

However, in my observation, most attorneys identified as “employment attorneys” spend all or the vast majority of their practices representing employers, and at most dabble here and there representing employees as a minority of their caseloads. “Employee-rights attorneys”, in contrast, spend all or most of their employment law practice representing employees.

So, why should you care? Employment law is employment law, right?  Yes, but there are two “sides” in an employment law dispute, and which side an attorney focuses on assisting– and has experience and successes with– can make a big difference if you are a worker seeking help with your interests.

There are different skill sets involved in employer-representation and employee-rights representation. A typical attorney who self-identifies as an “employee rights” attorney will usually have much more experience (as compared to the typical attorney identified as an “employment attorney” or an “employer defense” attorney) with : (1) representing workers on a contingency-fee basis (where no fee is paid unless the case wins or settles) and offering risk-sharing fee arrangements generally; (2) playing offense, so to speak– analyzing, identifying and prosecuting specific legal violations (whereas employer-side attorneys tend to have more experience in broader-stroke compliance/ employer-training matters, and reactive work in litigation that responds to claims they are presented); and (3) identifying with the “little guy” who has been harmed by a larger opponent, often having well-tested strategies that have worked while representing individuals against large organizations and wind up with good case results. These are all reasons a given “employee rights” attorney is typically better-suited to represent workers than an attorney who self-identifies differently.

In conclusion, if you are seeking legal representation for an employment dispute– and you are doing so in your individual (non-organization) capacity — I recommend you start you search by seeking an “employee rights attorney”.  And no, it doesn’t have to be me:) Whatever employee rights attorneys you identify, you can then of course review their websites, biographies, etc. to get a stronger sense of their typical legal work areas and results. Also, you can see if a given attorney has received ratings or reviews from clients, or from colleague attorneys, on sites like Avvo.com or SuperLawyers.com. If you take this approach, the odds are much better the first (or second) attorney you contact will be well-suited to help you.

I hope this information is of help and clarifies any confusion based on attorney labels you encounter when trying to find help for your concerns.

 

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Employment Mediation: How a Lawyer Can Help

Many employees with legal complaints attend mediation at EEOC or another agency on their own, without a lawyer.  This article describes ways a lawyer could help in mediation, and reasons to consider getting one.

As a lawyer, I obviously have a bias toward telling employees to get a lawyer. But note that arguments for “a” lawyer mean ANY competent employee rights attorney (not necessarily me).  Also note that the potential benefits of a lawyer below must be weighed against the lawyer’s potential fees, especially if the lawyer asks for out-of-pocket fees and will not work on a contingency basis where he or she is only paid via a percentage of winnings.

One way a lawyer can help you in mediation is to evaluate your case’s merits and evidence. Often, and understandably, workers are not aware of what factors make for a good case. For example, many workers feel that strong performance reviews (documents) are strong evidence in a discrimination case. In reality, such reviews can be helpful on occasion, but are generally a secondary form of evidence. Strong evidence in a discrimination case would be documents, emails or recordings that show discriminatory statements or conduct by management toward the complainant worker.  Quite often, I encounter workers who misunderstand what types of actions are and are not “discriminatory”, and what types of evidence are and are not helpful. An attorney can help a worker better understand his or her case’s evidence, and in what respects the case’s merits are strong or weak.  Having an understanding of the merits is directly useful in mediation and settlement-discussion leverage.

A second way a lawyer can help you in mediation is to evaluate your case value. It’s hard to settle a case reasonably if you– and the opposing party– don’t have a realistic idea of what your case is worth.  In my experience, employees who try to evaluate their own cases’ valuations are usually wildly wrong. Not because they aren’t smart or didn’t do their research. Rather, folks are usually very wrong because they lack experience in employment law, don’t know all the potential claims, don’t know all the categories of money (damages) that can be won, don’t know standard ranges of settlements for similar cases, and don’t understand how risks affect their cases’ valuations (i.e. risks of losing, of partially winning, of spending your own money, etc.).  For example, an employee may decide his case is worth at least a $100,000 settlement because of how “unfair” the employer’s discharge of the employee was. However, this perception of “unfairness” will not be compelling to a judge or mediator, who will need to hear arguments about very specific laws and penalties to be persuaded to recommend a given dollar value, especially a high one. If an experienced employment attorney evaluates your case, the potential valuation and/or settlement recommendation he or she makes will likely be much different than what you had concluded on your own.  An attorney would be able to describe the reasons why that valuation or settlement range is appropriate.  If you go into mediation with an attorney who is able to explain a well-reasoned and credible case valuation, this will likely impress the mediator and opponent (whether they say so or not), and help facilitate a reasonable settlement.

A third way a lawyer can help you in mediation is to add credibility to your case. Fair or not, most opponent-employers do not take an employee-complainant’s case seriously unless the employee has a lawyer.  I suspect many mediators feel the same. Without a lawyer, if your case does not settle, you will likely lack the legal skills to take your case the full way to a hearing and appeal. Employers know this. So they make lowball settlement offers to employees who do not have attorneys. A mediator can try to convince the employer not to stick with a final offer that’s unrealistically low. But I would bet that most mediators view cases without employee-attorneys to have lower values than those with attorneys. So employers are likely to make lower offers, and mediators are more likely to think your case has a lower value, if you don’t have an attorney and don’t appear capable of taking your case all the way to a legal conclusion if it doesn’t settle.

A fourth way a lawyer can help you in mediation is to provide distance between you, the mediator and your opponent. To explain: litigation is emotional, and emotions are often the biggest barrier to discussing a reasonable settlement. A lawyer represents your interests, but is NOT of course the same person as you. So the opponent employer will likely be more open to what your lawyer says (assuming your lawyer acts professionally, as most do) than to what you say (given your prior direct involvement and negative history with the employer).  I have found that mediators also appreciate having a lawyer present, as a middle-man or – woman, to serve as a go between between your opponent, the mediator (a neutral party) and yourself. The mediator and lawyers are kind of buffers between the opposing parties, and can simmer some of the emotions in those buffering roles.

I hope this information was of some value if you have mediation coming up. If you have any questions or comments, please feel free to contact me.

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