Category Archives: Considering Legal Action – Employee

A Good “Case” Is Like a Stool: It Has These Three Legs

Workers often contact me, wanting to know if they have a good employment-law “case”.  Every situation is different, and this blog post can’t say if you have a good potential case.  However, there are some general factors that are usually present with good employment cases.

A very good attorney I know, Avi Berk, told me a good analogy for what makes a good case.

A good case, Avi said, is like a stool.  A stool has to have three legs. If even one of the legs is missing, the stool falls over and there is no case (regardless how strong the other two legs may be).

Here are the three stool-legs that support good employment law claims.

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It May Be Easy to File a Complaint, But Not a GOOD Complaint

Often, workers file their own employment law complaints, such as for wage or discrimination issues, because the complaints seem easy to prepare.  For example, you may have seen a complaint form on a government website, and it may look simple.  So why not complete the form and submit it?  It’s easy, right?

Know this.  Filing a complaint may be easy, but filing a GOOD legal complaint is not easy.  In fact, it’s very difficult for someone who is not an attorney to prepare a good legal complaint that presents your strongest case.  A good legal complaint involves:

– Knowledge and evaluation of ALL potential legal claims to ensure you are considering all your possible rights and options;

– Knowledge of the potential VALUE of a legal claim if you win, and whether that value is worth pursuing when compared to potential investments of time, work and/or money on your part;

– Deciding whether it’s a good idea to pursue ANY legal complaint, or if other courses of action are better (e.g. having an attorney write a settlement offer letter to the employer first, etc.);

– Choosing the BEST claims to pursue;

– When writing a complaint, being accurate, and including all necessary information supporting the best legal claims;

– Not including irrelevant information in the complaint that distracts, and/or upsets, the legal decision-makers who review the complaint; and

– Knowledge of the PROCESS involved after a complaint is filed, and planning for that process and associated responsibilities.

I don’t write all this to discourage you from pursuing a legal complaint.  Rather, I want to encourage you to think about the issues above.  If you are able to talk to an attorney in advance (and obviously it doesn’t have to be me), that can help you sort through important issues before you make mistakes.  Those issues are in fact complicated, however simple an initial complaint form may seem to appear.

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Considering Legal Action? Don’t Let Worries About Travel Stop You

When people tell me about their legal concerns, some say they are worried if they take legal action against an employer, especially one who is in a different location from them, they will have to travel too much during the course of the legal action.

In reality, rarely does a party have to travel to pursue their rights.  I can count on one hand the types of events that might require a party to travel.  Those events (which only could arise after a legal complaint is filed) are:

  • a deposition (which could be required in person, but can be conducted via phone if agreed);
  • mediation (a settlement conference which sometimes is mandatory, and sometimes a mandatory mediation requires in-person attendance); and
  • trial.

More often than not, cases are resolved before any of the events above occur, so the party never needs to travel.  Most of the clients I have represented have not traveled at all by the time their cases resolved.  Most of my clients’ cases have resolved via settlements (contracts agreeing to financial terms, closing of the legal matters, etc.).  Settlement is often a better option than litigating through trial or thereafter.

So even those matters that involve lawsuits that are filed and pursued for months or years will usually only involve one to two instances of travel at most. When a given client of mine is scheduled for a deposition or mediation that is outside my client’s area, I explore if alternatives not involving travel are possible, such as a phone appearance.  Also, if a client of mine is outside of the United States and has concerns about being able to enter or re-enter the country to pursue legal rights, there are usually options available to resolve those concerns (e.g. phone appearances, visas for legal matters, etc.).

The bottom line is you should not assume frequent travel, or any travel, will be required if you retain an attorney and explore legal options.  The attorney will discuss with you what events, if any, are likely to occur that could require travel. You should not let assumptions or fears about travel stop you from exploring your possible legal rights or legal action.

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What’s the Value of Your Employee Rights Case?

If you’re a worker who is pursuing (or thinking about pursuing) an employment-law complaint, you may have ideas about the monetary value your case is worth.  Unfortunately, workers’ own case valuations are usually wrong.  Very wrong, in fact.

Workers often come up with wrong valuations because they rely on factors that are important to the workers– such as the obviousness of a particular lie an employer told– but that are often unimportant within legal forums.  For example, an employer is legally allowed to tell many kinds of lies and make many kinds of wrong decisions.  Only certain lies and wrongs are legally actionable.  You’re unlikely to know which is which unless you’re an employment attorney or repeatedly deal with the laws and legal forums at issue.  Otherwise, you have no true framework or basis for assessing your own case’s value.

As an employee rights attorney, my sense of a case’s value is influenced by many factors, both legal and practical.  These factors include:

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Playing the Wrong Cards in Severance Negotiations

It is common for employees (including professional and executive employees) to play the wrong cards, so to speak, during severance negotiations.  That is, employees negotiating severance agreements often raise issues to their employers that they believe, incorrectly, provide strong leverage or potential legal claims.  Don’t get me wrong.  Many employees who are fired and/or approached with a severance agreement do in actuality have potential legal claims that could provide strong leverage in severance negotiations or litigation.  Sometimes it takes me a few hours of discussion to identify such material legal issues and evidence, but they’re often there.  The problem is, most employees who have winning issues fail to recognize what those winning issues are.  And in their negotiations with employers, they commonly focus on issues that seem to be winners from a common-sense perspective (or workplace-observation – or Google-search- perspectives), but are in fact issues the employer’s employment lawyer or HR rep would quickly deem useless in the legal world.

Most employers involved in severance negotiations get the assistance of representatives who have repeat experience with scenarios and litigation relating to job terminations and severance agreements.  They are adept at diagnosing issues that could present legal exposure to the employer.   Are you?  If you think you’re playing a winning hand, but the employer sees the hand is in fact a dud, you may want to have an employee rights attorney review the hand before you set it down.  If a proposed severance agreement’s terms are acceptable, of course, there is no need to show anyone any cards.  In the end, it’s better to show an employer no cards than bad cards.  Bad cards do not leverage better severance terms and may invite negative reactions from the employer that make you worse off.  If you think you may have good cards (i.e. potential legal claims with strong merits), consider checking if an experienced legal representative agrees before you share those views with the employer.

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Texas Farm Accused of Discriminating Against US Citizen Job Applicants in Favor of H-2A Foreign Workers

A Texas farm has been accused of discriminating against U.S. citizen workers, and instead favoring foreign workers hired under the H-2A temporary worker visa program.

In June 2010, a U.S. citizen with more than 12 years of experience in the agricultural industry said in a complaint that he had applied for a job as a cotton picker operator at Estopy Farms, of McAllen, Texas. He was rejected, but during the same period, Estopy Farms hired a number of seasonal foreign workers under the H-2A program. The U.S. citizen claims he was rejected because of his citizenship.

Texas Rio Grande Legal Aid Office filed a lawsuit with the Chief Administrative Hearing Officer (OCAHO) within the Justice Department’s Executive Office for Immigration Review on behalf of this applicant along, with another U.S. citizen. The lawsuit alleges violations of H-2A program rules, which require employers to certify that they have actively tried to recruit U.S. workers and that the hiring of foreign workers is not adversely affecting the working conditions of similarly employed U.S. citizen workers.

The Department of Justice also has filed a motion to intervene in the lawsuit in conjunction with its role of enforcing the INA’s anti-discrimination provisions. The DOJ pursues employers accused of discriminatory hiring practices.

Employer discrimination is wrong in the U.S., whether it’s discrimination against foreign workers or against U.S. citizen workers. For more information about the legal services we offer workers who have experienced discrimination, please email the attorneys at mbrown@dvglawpartner.com or vonda@vkvlaw.com.

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One-Year Deadline Passed for an H-1B Wage Complaint at DOL? There May Still Be Options For Getting Your Wages

If you are an H-1B worker with unpaid wages, as we have described before, there is a 1-year deadline for a particular type of legal complaint you could pursue.  That is, there is 1-year deadline to file a WH-4 complaint at the U.S. Department of Labor (DOL).

We have found that many H-1B workers (whether they have read our blog or not) are aware that a WH4 complaint can be pursued at DOL as a way to seek unpaid wages.

However, some H-1B workers who are past the 1-year deadline for a WH4 complaint may assume they have lost their chance to pursue unpaid wages.

Please know that often this is not the case.  There often are options an H-1B worker can consider when the unpaid wages were earned more than one year ago.  For example, several Federal and State laws (unlike the H-1B regulations and WH4 process) allow deadline periods of 2-6 years to pursue unpaid wages.  So, if an H-1B worker’s employer had failed to pay wages that were due more than a year ago, that worker– while not having options at DOL per the WH4  complaint process– may well have options under other Federal or State laws.  The attorney-authors of this blog can speak to this firsthand, as we have represented H-1B workers in several legal actions with legal claims seeking wages owed from several years prior.

The take-home points for you, as an underpaid H-1B worker, are these: (1) if you’re owed wages from more than one year ago, don’t assume you are beyond all legal deadlines to pursue those wages, unless a competent attorney tells you that following a consultation; and (2) if you are interested in a potential legal complaint, promptly have an attorney evaluate your situation, potential legal claims, and deadlines.  The longer you wait, the more likely it is that all applicable legal deadlines will pass.

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