Monthly Archives: December 2010

Want to Negotiate With an Employer You Distrust? Consider Talking to a Trusted Third Party First

You may be in a situation where (1) an employer has violated your trust in the past, and you are uncomfortable with that employer; but (2) you still need something from that employer– their payment of overdue wages, their approval of a pending administrative request, etc.

Often, I see employees in this situation– that is, employees who need something from an employer who wronged them– try to negotiate directly with the employer, without the assistance of an attorney or other advocate (e.g. a union representative).

You may be inclined to do this: to try on your own to “work something out” with an employer you distrust.  You may realize you hadn’t been successful in the past, but this time, you may think, the employer will realize you are serious.  Perhaps you feel you have new leverage or demands.  Maybe you recently found legal information on the internet, and you are prepared to threaten a lawsuit if the employer does not treat you fairly like you ask.

Before you talk to the employer further, or make any threats of legal action, please consider doing this: (1) take a step back, to review the big picture; and (2) talk to a trusted third party (whether it’s a lawyer, a union leader, a family friend who is experienced in these employment matters, etc.).

A knowledgeable third party often has a broader perspective on the big picture than the mistreated employee does.

For one thing, a third party is not as emotionally-involved with your matter, and as such their eyes are open to some obvious things that you may not want to see, but need to.  A third party may give you the wake-up call you need, and say, “Hey, do you think your third attempt on your own to get this employer to act fair is going to work out better than the first two times?”  Sometimes it takes someone else to state the obvious before we’re open to believing it.  A third party can give a reality check.

Also, a knowledgeable third party, such as an employment attorney, may have repeated experience dealing with the same type of scenario you’re dealing with. From that experience, they could tell you why the action you’re contemplating– for example, maybe you want to complain to management about a particular wage issue– may be a bad idea or a good idea.

An experienced third party will know from experience which approaches are likely to work, and which aren’t.  As an employment attorney, I have had hundreds of communications involving employers and unpaid wages.  An employee could learn from my experiences what types of communications are most likely to have good outcomes.  Left on your own, you may try a form of communication that– while it may seem instinctive or logical– is a type of communication that I know has failed time and again for dozens of employees.

Generally speaking, employees are better off when they talk to a third party before they try to negotiate with an unfair employer, rather than after.   When an employer controls something that is very important to you– like wage money you need for rent– it is all the more important that before communicating with the employer, you prepare carefully, and seek input from a trusted adviser who has dealt with similar situations before.

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Asking for Personnel File = Sending a Message (Think What It Is, and How it Will Be Received)

Many States, including Wisconsin, have laws that require an employer to give an employee a copy of his or her employee file (or “personnel file”) upon request.Files

In some situations, a request for a personnel file is a mundane, harmless and bureaucratic event.  Maybe you’ve worked for an employer for ten years, and every January you ask the HR person for a copy of your personnel file for your own record-keeping purposes.  If this is the case, there will be no eyebrows raised with your token request.

However, if you’re an employee in a dispute with your employer/manager, and you’re thinking of requesting a copy of your personnel file, that is a different matter.

If you’re in that situation, you may be thinking thoughts like this:

  • “I want to see my write-ups and all the other notes that management has been keeping on me.”
  • “I want to see the case the employer is building on me, so I know what I’m dealing with, and maybe I can build my own case.  Heck, maybe I will take legal action.”

Before you request the file, however, have you thought about how your request will be interpreted by the employer?

Know this: your request is not just a request, it is also a message that you send.  A personnel file request, to an employer, is a signal.  That signal may or may not raise the employer’s eyebrows, but the signal will be examined for its meaning.

It is not rare for an employer to get a personnel file request, but it is also not common.  I’d bet that, when most employers do get personnel file requests, a sizable portion of those requests are by employees who have a dispute with the employers, and who want to look for dirt, so to speak.

Whatever the reason, I can tell you that when an employee requests his or her personnel file– especially, in the midst of a dispute — an employer will often interpret that request to be a shot across the bow.  That is, an employer will often assume you have thoughts like those above, and assume you may be preparing for a legal action, whether or not that’s the case.

If you’re having trouble at work, before you request your personnel file, you should consider these things:

(1) Who will hear my request? Will they tell any person(s) I’m having a dispute with?  Really?

(2) How will my personnel file request likely be interpreted by the people who learn of the request?

(3) How are those people likely to react based on their interpretations?  Will they get even angrier with me?  Will they get to work on cover-your-b#tt activities, and be careful to hide evidence or intentions going forward?

(4) How helpful to me are the documents in the personnel file likely to be?  Do I know what documents should be in there?  Do I think the employer will actually provide them?  And if the employer actually provides helpful documents as I anticipate, how helpful will they be? Will they help me negotiate better terms or work conditions with my employer?  Will they help me to start a lawsuit?  Did a lawyer tell me that?

(5) In weighing the potential advantages of getting personnel file documents versus the potential disadvantages of the employer’s reaction, is it better to request the personnel file or not?  If yes, when is the best timing and manner to do so?

These are some important factors that all too often go unexamined by a dispute-immersed employee who is about to make a personnel file request.  Considering these things will help you better understand what message the personnel file request may send, what effects the request may have, and ultimately, whether it’s a good idea to make the request at this time.

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