Monthly Archives: August 2014

If You Get a WI Unemployment Attorney, Do It Before Your Hearing

I am an attorney and assist Wisconsin workers with unemployment appeal issues.  Often, I get calls from workers after they have had an unemployment hearing (which they lost).

If you think you may need an attorney’s help for a WI unemployment appeal, then please consider talking to the attorney before the hearing.  Once the hearing is completed, the amount of assistance an attorney can give is limited.

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Filed under Unemployment - Wisconsin

Your Job Going Downhill? Be Careful About Mentioning “Severance” First

As an attorney who often deals with employment law, it’s no surprise I’m often contacted by employees whose jobs aren’t going well.  Many employees report their employers appear to be preparing to fire them, or trying to force them to quit (by making life hell at work, etc.).

Some of these employees ask me, “Should I just ask my employer to admit they want me gone and ask if they’ll give me a severance?”

There is no catch-all legal advice if you are in this situation, as all situations are different and your particular facts could impact advice an attorney would give.  With that said, I can say it is usually not in employees’ interests to raise the topic of severance first.

Here are factors why mentioning “severance” first is often a bad thing for employees: (1) the employers can claim the employees (by mentioning severance first) had “quit”, and use that “quit” notice as basis to try to disqualify the employees from unemployment benefits; (2) the same “quit” theory can often be used to defeat legal claims from employees who pursue discharge-related legal claims (e.g. discriminatory discharge, etc.); (3) the employers may not offer any severance anyway; and/or (4) if the employer was open to offering a severance, the offer may have been better than what the worker envisioned had the worker kept quiet and waited for the employer to mention severance (and a severance offer) first.

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Filed under Employee Tip - Problems at Job

Know What’s “On the Table” Before Pursuing/Threatening Legal Action

Before you file a legal complaint– or threaten your opponent that you may file a legal complaint– make sure you understand what is on the table.  That is: what do you stand to win?  What do you stand to lose?  The answers, in fact, usually require significant legal analysis and help from a lawyer.  But people too often guess at answers, and usually guess wrong.

In the film No Country for Old Men, the fellow pictured below was offered a coin toss and had memorably (and understandably) questioned what it was he stood to win or lose .

NoCountryPuttinUp

Do you know what you stand to win or lose pursuing a legal claim?  Really?  Chances are, you don’t have as much on the line as the guy in the movie (or at least I sure hope not).  But you may be making big gambles– or missing out on big opportunities– based on incorrect assumptions.

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Filed under Employee Tip - Considering a Legal Action

Starting a Business and Have a “Junk” Non-Compete or No Non-Compete With Former Employer? That’s Good, But No Guarantee You’re in the Clear

Some Wisconsin workers consider starting their own business, and make plans for the business before leaving their current employer.  Some such workers have non-compete agreements with their existing employers.  Some don’t.  In either event, you should not assume you are in the clear and will not be sued by the former employer if they think your new business is competitive.  First consider having an attorney review your situation (no, it doesn’t have to be me).  Read more below to learn why.

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Filed under Employee Info/Tips - Litigation - Mediation, Non-Compete Issues

Are You a Manager Given a Severance Agreement? Learn the Risks of Trying to Manage Negotiations

In my job as an employee rights attorney, I’ve encountered thousands of situations where fired workers contacted me about severance agreements they were presented.  In some situations, I have found such workers had strong potential legal claims and strong leverage to negotiate better severance terms and higher payment.  Generally speaking, fired managerial, executive and professional workers have better opportunities for severance improvements than do non-managerial workers.

There are many common reasons for this.  One reason is that employer companies often believe (often correctly) that manager-level workers have important knowledge, i.e. knowledge about the company’s employment and severance practices, about sensitive factual circumstances that give rise to potential legal claims, etc.  Further, if the fired manager retains an attorney with employment-law know-how (which can then be applied to the factual circumstances at issue), the employer knows it faces a credible threat of legal action and exposure.  The employer thus treats that manager/attorney combo more seriously and reasonably in negotiations as compared to the fired employee who does not have an attorney yet is making statements about how she or she “could” get an attorney and sue for [insert misdiagnosed legal claim], etc.

Surprisingly, I see some managerial- level workers who– despite their general advantages above– make the mistakes I mention above. By attempting, on their own, severance negotiations and related legal diagnoses and communications, they had squandered opportunities for a better severance. It is unfortunately common for such a manager to call me, after he or she has had negotiations go south, and report to me their assessment of the laws and leverage points that apply (with no request for my assessment or whether I agree), and express surprise things didn’t go well. Then I begin the discussion of my evaluation. Almost 100% of the time, the main potential legal claims and leverage points I assess are completely different than what the manager assessed.

The question that has repeatedly come to my mind is this: why do managers who have a lot at stake with a severance try to manage something with which they have no experience (i.e. a discharge situation requiring assessment of hundreds of potential legal issues, litigation rights, legal forums, etc., for which they had no prior education or experience)?  My theory is that managers are used to getting things done, i.e. successful project management, and approach the severance negotiation like any other project that they are qualified to handle.  The problem is that managers — along with every other person who is not an employment-attorney– are not qualified to handle severance negotiations. Even those managers who routinely deal in negotiations do not have the skill set to handle their own severance negotiation.

Why do I say this?  Because knowing your actual leverage for a severance requires diagnosing the correct potential legal claims.  Many managers who initiate severance negotiations assume they have correctly diagnosed the best potential legal claims and leverage points.  But the vast majority have their diagnoses wrong. So long as those wrong diagnoses are not shared with the employer or used in attempted negotiations, they can be corrected. If a worker calls me before he or she attempts negotiations, I have an opportunity to discuss with them the facts and evidence — which are all that I need. Then I can assess those facts under the hundreds of employment laws I am familiar with, correctly identify the best potential legal claims (or lack thereof), and help negotiate a better severance when I feel that’s possible. Along the way, I discuss my thought process with my client, get his or her feedback and questions, and make sure we’re on the same page.

If you are a manager presented a severance agreement, and you are about to attempt negotiations on your own, take pause for a moment.  (Of course, don’t pause beyond any deadline!).  Do you really know the laundry list of potential legal claims to examine? Do you really know what your best potential legal claims and leverage factors are?  Do you really know, if you didn’t reach a reasonable severance, what options (and legal players, forums, risks, etc.) would be in front of you?  Do you really know the potential legal value (damages) of potential legal claims?  It’s okay to admit you don’t know.

We all encounter projects outside our knowledge base to manage.  I myself am incapable of managing a plumbing project (even a minor one), and, knowing that, I find someone to do that, saving myself hundreds of dollars I’d cost myself by botching the job (and creating more expense later).  If a manager botches severance negotiations, he or she could squander thousands of potential dollars, depending on the situation.

So please consider contacting an attorney, whether it’s me (in my admitted self-interest) or another employee rights attorney. If you do, it is exceptionally likely that you will hear evaluations of laws and leverage — maybe good news, maybe bad–  that you had never considered before or that are the polar opposite of something you had believed before. When I have had the opportunity to talk through misunderstandings, the discussion usually ends with everything understood, and me on the same page with the inquiring manager. And in many instances, we have agreed on a great game plan to reach a successful outcome in severance negotiations and/or litigation and in fact accomplished just that.

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Filed under Employee Tip - Considering a Legal Action, Employee Tip - Hiring an Attorney, Employee Tip - Severance & Settlement