Monthly Archives: July 2011

Be Careful About Saying “Discrimination” In a WI Unemployment Proceeding– That Word Usually Has No Place There

As an attorney with a practice in employee rights, I have represented many Wisconsin workers in unemployment proceedings.

It is common for me to read unemployment-related documents, and to see that my client has (before s/he retained me), used the word “discrimination” in talking about the employer’s actions to the unemployment office.

And almost always when I see that word “discrimination” used during an unemployment matter, it is a bad thing for the employee.

Usually, whether an employer may have discriminated or not is irrelevant for an unemployment proceeding.

For example, the most common type of Wisconsin unemployment dispute I see is about whether the employee (NOT the employer) committed misconduct prior to job termination.  In other words, the whole issue for the unemployment proceeding is whether the employee did something really bad or not.

If an employee goes into a hearing or phone interview, the purpose of which is to decide whether the employee did something bad– and then the employee proceeds to point the finger at the employer to accuse it of doing something bad (e.g. “discrimination”)– that does not go over so well with the unemployment office.  Nor should it. The purpose of the hearing is for the employee’s conduct to be reviewed, not the employer’s bad conduct such discrimination etc.

With this said, there are a few limited unemployment law issues and circumstances where a WI worker does need to address what an employer did wrong. But usually, workers are not aware of or addressing those legal issues when they’re calling an employer “discriminatory.”  Usually, when a worker states that, the worker just feels the employer did wrong, and feels that an unemployment interviewer or judge will want to hear about that and/or will agree with that.

These are dangerous assumptions to make. You should not assume it is okay to talk about the employer’s “discrimination” unless you have reviewed and understand the legal standards, and know that what you’re saying is important under those legal standards. For most unemployment law standards (including discharge-for-misconduct as mentioned above), it is not necessary to mention “discrimination.”

Here is a list of Wisconsin unemployment legal issues and standards, at Wisconsin’s Department of Workforce Development’s website.

If you have a WI unemployment hearing coming up, chances are the hearing will cover one or more of these listed legal issues/standards.

Please consider reviewing the legal standards (or having a WI unemployment attorney brief you about them) before you decide to tell the unemployment office that your employer was “discriminatory”, or before you otherwise bring up topics concerning what you feel the employer did wrong.

While it is understandable that such things may be on your mind– and may well be true in some instances– you do not want to be offering up information that the unemployment office will find unnecessary and/or harmful to your own case.

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:

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Why PG County Schools’ Wage Violations May Throw Its H-1B Teachers Out of the US

[cross-posted from blog]

In the wake of Maryland’s Prince George’s County Public Schools (PGCPS) settlement agreement involving H-1B wage violations, questions have been raised about the unfair effect this is having on the victims, the teachers who will be forced to leave their jobs and the United States once their H-1B time runs out.

As part of the settlement agreement, PG County schools are barred from filing H-1B and other employment-based petitions for two years, including extensions of existing H-1B workers. Once their H-1B time with PGCPS expires, these teachers will be out of a job and have to leave the United States unless they find another employer or other visa status.

It’s true. It’s not fair. The reason lies in the purpose of the visa regulations. H-1B and associated employment-based immigrant visa regulations, which include those of the Department of Labor and USCIS, were not created for the benefit of the foreign workers. Rather, the regulations were created for U.S. employers. These regulations enable U.S. employers to fill jobs that (per the theory of legislators) would otherwise go unfilled because insufficient numbers of qualified American workers (or other authorized workers) exist.

To prevent employers from using these regulations to undercut American workers, the regulations impose numerous obligations on employers. For H-1Bs, for example, the regulations set minimum wage requirements (known as the prevailing wage) for each job based on job type/skills and location, and prohibiting benching (the worker must be paid the required wage even if the employer has no project or work to be done).  By imposing these obligations, the employer is discouraged from seeking foreign workers who it might be able to pay less for doing the job. These obligations also protect the foreign worker from exploitation, but is not their only purpose.

The process of obtaining an H-1B and associated green card has become sufficiently complicated, expensive and lengthy that it also serves as a de facto discouragement against hiring foreign workers.

With this in mind, the regulations impose penalties designed to punish the employer, such as fines and being barred from participating in the visa programs. They do not focus on remedies for the foreign worker. In the case of the PG County teachers, they are to be reimbursed the money they paid, but this order is less about refunding the teachers their wrongfully paid sums, and more about preventing the employer from benefiting from its violations, which it would if it were allowed to retain the money paid by the teachers.

As to the victimized teachers, the system is for the most part not concerned with their re-employment once their H-1B with the school expires. The H-1B visa is market driven, so the system lets the market decide their fate. Once their H-1B with PG County expires, the teachers can stay in the United States if they can find another employer or obtain some other visa status (e.g. student visa, marriage visa, etc.). From the system’s perspective, if the teacher does not find another H-1B employer, for example, then that must mean sufficient numbers of American workers exist, so a foreign worker is not needed to fill the job and must return home.

To prevent this unfair outcome, a change in the focus of immigration policy must happen. When the policy changes, the regulations will follow. If U.S. immigration policy concerns you, you can advocate for change by contacting Congress or volunteering to help immigration advocacy organizations, such as the American Immigration Council.

If your employer required you to pay for your H-1B fees or you have been benched or underpaid, you may have remedies available and should seek advice from a competent attorney.

For more information about legal services we provide to H-1B employees, please see our page here.

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MD County’s Public Schools Barred from H-1B program and Fined for Wage Violations

[cross-posted from blog]

In a settlement agreement signed this month in connection with H-1B wage violations, Maryland’s Prince George’s County Public Schools (PGCPS) system must reimburse more than 1000 teachers $4.2 million in H-1B application fees and pay a $100,000 fine. The Department of Labor and USCIS have also barred the school system from filing applications for work visas for two years.

In April, the Department of Labor investigated PGCPS’ practice of requiring foreign teachers to pay their H-1B applications fees and found it to be a willful violation of the H-1B regulations prompting the fine and debarment. The investigation covered applications filed between May 2005 and January 2011, which amounts to 1044 teachers who must be reimbursed a total of $4,224,146.

Initially PGCPS was assessed $1,740,000 in civil penalties due to the violations, but in the settlement agreement this month that amount was reduced to $100,000 on the condition it not file any H-1B or green card applications for the next two years. If it fails to adhere to the condition, PGCPS will be required to pay the higher penalty.

The debarment does not affect active H-1B visas, but when these H-1B periods expire, the school system will not be able to file for extensions, putting these teachers out of work.

DOL and USCIS must be encouraged to continue holding H-1B program violators accountable. If you know of any DOL or USCIS actions against H-1B violators, let us know.

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Don’t Play the Blame Game in Unemployment Proceedings

Workers involved in Wisconsin unemployment proceedings are often tempted to play the “blame game.”

Human instinct may tell you that it’s important to tell the unemployment interviewer or judge your opinions about what the employer did wrong.  For example, say a worker was fired because the employer said the worker was “falsifying formwork,” and the employer is challenging unemployment, claiming the worker was fired for misconduct.

If the worker is playing the “blame game,” the worker may tell the unemployment representative these types of opinions/blame-statements:

  • The employer was at fault for not training the worker how to properly complete the formwork
  • The employer was at fault for not investigating the situation properly before flying off the handle and firing the worker
  • The employer was at fault for not firing other people who did the same thing (or worse) with formwork
  • The employer/manager/etc. do much worse things themselves — they set the building on fire, etc.

Okay, I’m exaggerating, but I hope you see the point.  Playing the blame game looks bad.

While there are times in an unemployment proceeding that a worker may be asked for FACTUAL information about what the employer did wrong– e.g. an administrative judge could ask a question like  “Did the employer train you how to complete that type of formwork?”, to which a worker could respond  “No,” if that’s the truth– this is a very different scenario than the worker being given an open-floor to rattle off instances where the employer dropped the ball.

It’s understandable that, if you’ve been fired or had your unemployment challenged for reasons that seem unfair, you FEEL the employer is to blame. But if you SPEAK to an unemployment representative from that mindset, i.e. if you’re playing the blame game, that is usually a losing game for workers in unemployment proceedings.

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:

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WI Resident John Kroner Appeals Transfer to Tribal Court, Submits Petition for Review to WI Supreme Court

On July 1, 2011, John Kroner, a Wisconsin resident represented by blog author/ attorney Michael Brown, filed a petition for review with the Wisconsin Supreme Court.

Mr. Kroner is appealing a Wisconsin Circuit Court’s decision, upheld by the Wisconsin Court of Appeals, to transfer Mr. Kroner’s case from the Wisconsin forum to a tribal court.

The Court of Appeals’ decision upholding the tribal court transfer was subject of an article in the Green Bay Press Gazette.

Mr. Kroner and his counsel state the following about the case and petition:

The Wisconsin Court of Appeals’ decision could limit court access for Wisconsin-based residents and businesses who have contractual relationships with tribal-affiliated corporations, and who want Wisconsin courts to handle contract disputes.

In this case, the tribal-affiliate outright conceded the Wisconsin Circuit Court had jurisdiction for the dispute, but had moved to transfer to tribal court anyway. The Court of Appeals’ decision, which allowed the transfer, strengthens a tribal-affiliate’s ability to pull the plug on Wisconsin litigation, and move a case to tribal court.

Wisconsin law has a discretionary transfer statute that allows a transfer from a Wisconsin court to a tribal forum, if specific factors of fairness are carefully considered, and transfer is found legally appropriate. But in the circumstances of this case, the Plaintiff-Petitioner argues a transfer to tribal court would be inefficient, inequitable and contrary to Wisconsin law.

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The Danger of Labels in Employment Disputes

Show Off Your Supplies: Dymo Label Maker
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If you’re an employee in an employment dispute or legal dispute, you will be tempted– very tempted– to describe events in terms of adjectives or conclusions, i.e. labels.

For example, a worker may want to tell a boss or a legal authority “I was treated unfairly” (the operative label being “unfair”), as compared to saying “On June 5th, Supervisor Jones told me to complete work on 1,000 widgets in 1 minute, and I could not physically perform that work in that time frame.”

It is much better to speak in the latter terms, i.e. to speak the language of facts, than it is to speak in label-ese.

Know this: to the ears of the person(s) you want to influence, the language of labels (e.g. “unfair,” “lied,” “disorganized,” “harassed,” etc. etc.) is like the sound of nails scratching across a chalkboard.  The horrible sound of labels will muffle out the factual content of what you say.

But if you speak in the language of facts– and describe things strictly in terms of what was said and done, i.e. the terms of who, what, when, where and how– then you give yourself the best chance of having your audience actually consider what you have to say.  The audience could thereafter apply whatever adjectives or conclusions come to their own mind.

Please note the audience is in control of their own decisions.  And they will resent you if you try to make decisions for them, which in effect is what you’d be doing if you speak in terms of labels. 

So, whatever your employment dispute and whoever your audience, if you’re going to speak up, it’s best you give your audience the raw facts, politely stated.  Then stand back as the audience considers the facts and makes decisions.

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