Monthly Archives: December 2008

Biggest Risk to Employers? Frivolous Suits? No. The (Expensive) Certainty of Being “Right”

As someone who represents individuals (who usually have limited resources) against companies (who usually have considerable resources), it is difficult to hear talk from the business sector about how companies are supposedly harmed by “frivolous” lawsuits, and how there is a supposed need for “tort reform.”

It is true that some employees file meritless suits, but the reality is that most would-be frivolous suits by individuals never see the light of day. This is just a matter of financial reality.

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Filed under Philosophy - Employee Rights

No Pay for Boot-Up Time: More Corporate Slash-‘n-Burn

The Evil HR Lady has an interesting post here about lawsuits brought against corporations who refused to pay wages to employees for brief periods of time (@15 to 30 minutes per day) during which their computers were being booted up and/or shut down.

The Evil HR Lady (an anonymous “HR professional in a Fortune 500 Company” and well-respected blogger) makes the following excellent points about these no-pay-for-boot-up practices:

I’ll leave the legalities to the lawyers … Let’s talk about the people. Remember them? We’re supposed to lead them. This is supposed to cause HR to lead organizations.

Apparently, we were leading them to self destruction. (Where are we and why are we in this handbasket? we might ask ourselves.) Sure, employees aren’t “working” while their computers are booting up. They may even be, gasp! talking to their co-workers or drinking coffee. But, they are in the office. They can’t be somewhere else. They have to be in the building. Therefore, they are at work and should be paid as such.

But, let’s say, for argument’s sake, that [the companies] are legally right. Computer booting time can be unpaid. Just how much do you hate your people? Do you want them to leave? Do you want to drain the lifeblood out of them? Do you not understand that your best employees will find new jobs and that as a result, the quality of your workforce will gradually decline?

… You cannot run a good business without good employees. You cannot get and keep good employees without good policies. If HR is encouraging this type of policy … then they should be ashamed of themselves.

Trying to save a few bucks will result in you destroying your company. Your people are your company. Stop being stingy.

I completely agree with Evil HR Lady’s points here, which are: (1) people (employees) are a company’s greatest resource; (2) employees will resent a company’s stinginess, and will try to leave a company that is stingy; and (3) it is therefore not in a company’s financial interest to be stingy and save a few bucks in the short term, when the long-term effects (loss of many good employees) cost more.

But I will add there is another element in play here, aside from these companies’ disregard of best-practices as to finances: disregard of workers’ humanity. These companies’ wage policies treat workers as merely numbers- at best as cattle.

Do these companies ever stop to think thoughts like these: “Geez- maybe we have legal grounds to argue Joe should be paid for 7.5 hours rather than 8. After all, it does take about one half hour total time for him to boot up and shut down his computer. BUT… Joe is here 8 hours because we require him to be. Joe is a responsible person. Joe has mouths to feed at home. And hey, maybe we could argue this computer time is an arguable legal issue, but when looking at Joe as a fellow human being- as someone like me- it’s a no-brainer to pay him for 8 hours. After all, I [INSERT CORP MANAGER’S NAME] would want to be paid for 8 hours if I were in Joe’s shoes.”

Thoughts like these rarely occur in corporate America, I am convinced. Little thought is given to the human toll of slash-and-burn management and penny-pinching.

There is no Golden Rule. The Rule is Gold. Or, some transient managers’ idea of it.

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Filed under Philosophy - Employee Rights

Learn ALL About Your Rights Before You Give Your Employer An Earful About Them

On various occasions I have received calls from employees who became aware of various legal rights (e.g. ADA discrimination law rights) from information they found on the internet (e.g. EEOC’s website pages about ADA rights).

While it is a great thing to educate yourself, please do not make the mistake of assuming the information you learned is comprehensive, or means what you think it does.  And please, please don’t rush to your employer, and admonish them based on your internet-based understanding of your rights (e.g. “EEOC’s website tells me you’re a bad employer and violating ADA law because you won’t give me the reasonable accommodations I asked for!!”).

There are many, many problems that can arise when an employee avoids talking to an attorney and takes a do-it-yourself analysis of legal rights based on internet research or other incomplete information.

For example, you may learn from internet research that the ADA provides the right to a “reasonable accommodation” for employees who have disabilities.  What you may not have read on the internet is the fact that many federal courts have determined, for many employee-litigants, that their serious physical conditions (e.g. cancer, diabetes) did not meet ADA’s legal definition of a “disability.”  If you have cancer, a court may or may not find that your cancer may qualify as a “disability” under the ADA definition.  Only if your condition is found to be an ADA disability, would you be legally-entitled to any reasonable accommodation.  Moreover, in order to get a legal decision, you may have to expend a good deal of time (possibly years) and expense (e.g. some medical experts will charge hundreds or thousands of dollars an hour to testify whether your condition is a disability).

These are the things that an internet search usually won’t tell you, that a competent employment attorney can.  (Please note: there are some good things that could happen from you pursuing your legal rights that an employment attorney could tell you about too; but the purpose of this post is to tell you how to prevent bad things from happening).

Before you rush to admonish your employer about any legal right, you should strongly consider talking to an attorney.  Many employee rights attorneys will provide free initial consultations over the phone, and even a single consultation should educate you about some wrong assumptions you made based on internet information, and could save you from making some serious mistakes in your future conduct with respect to your employer.

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Filed under Employee Tip - Considering a Legal Action, Employee Tip - Problems at Job

Beware of the Employer Who Challenges All Unemployment Claims

Given the hard economic times, and surge of unemployment, Wisconsin employees have reason to be concerned about being laid off or fired from their jobs.

Unfortunately, WI workers have an additional concern: there are some employers out there who appear to challenge the unemployment benefits of most, if not all, of the workers whose employment is terminated.

A challenge-every-unemployment-claim employer may contract with lawyers or vendors whose sole job is to process unemployment challenges by the company.  Unemployment challenges thereby become a streamlined business function.

Apparently, some employers have decided that they benefit financially by challenging every (or many) unemployment claims; by winning some percentage of these challenges, they save money that would have been paid toward unemployment benefits.  And apparently the employer expects the money “earned” from defeating unemployment claims will be more than the money paid to the vendors and lawyers who work to defeat the employees’ claims.

The employers’ most common basis to challenge unemployment is to claim the terminated employee was fired for “misconduct.” If an employee is legally found to be fired for “misconduct” (defined by WI law to basically mean severe wrongdoing that goes above and beyond poor job performance), then they are not eligible for unemployment benefits.

I expect employers to make a surge of overreaching “misconduct” allegations, and a surge of unemployment benefits challenges, that coincide with the increased job terminations during the economic downturn.

For those Wisconsin workers who are laid off (or expect you may be), I have a post here about pursuing unemployment benefits and preparing for an appeal hearing, should there be a dispute over your unemployment benefits.

Please note: I don’t intend to be fear-mongering here.  Most employers do not challenge unemployment in an assembly-line fashion and reserve their allegations of “misconduct” only for a minority of their terminated employees (i.e. those employees who the employer truly believes committed misconduct).  But the assembly-line unemployment-challengers are increasing in number, and tough economic times will further amplify the trend.  Bottom line: in this day and age you cannot assume your employer will act fairly if you apply for unemployment benefits.

You should keep an eye out to make sure your employer is not one of those who treats unemployment proceedings as a business forum to save money, and who value that function over human rights and survival benefits.  If you are one of the unfortunate persons who are laid off or fired, you should ask around, to see if your employer has routinely challenged unemployment for most or all workers.

Regardless of your employer’s track record with unemployment, you should prepare for an unemployment challenge, and you should consider Plan B alternatives in the event that unemployment benefits are denied.  By being aware of these possibilities and planning to prevent them, you will increase your chances of receiving unemployment benefits.

Please note this post does not provide legal advice- if you want legal advice, you must talk to an attorney about your specific situation. If you are interested in legal assistance from attorney-author Michael Brown or his law firm DVG Law Partner for your Wisconsin unemployment matter, please contact us here:

WI Unemployment - No Fees Unless You Win

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Filed under Employee Tip - Unemployment, Unemployment - Wisconsin