Category Archives: Employee Tip – Considering a Legal Action

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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Mean and Median Settlement Values of Employment Discrimination Cases

According to a study of employment discrimination settlements that occurred in 1,170 cases settled by federal magistrate judges in Chicago over a six-year period ending in 2005, “The mean settlement amount is $54,651 … and the median is $30,000.”  These numbers applied for single-employee litigants, as opposed to class-action figures, which are higher.

Perhaps the numbers above differ from your assumptions.  What should these values mean to you, if you are an employee who is considering, or has taken, legal action against an employer?   One thing they do not mean is that the numbers provide a value for your matter.  Before assuming the value of your case, you should consider many factors.  Such as:

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Work for Wal-Mart and Have to Buy Clothes Per Their New Policy?

My law firm represents workers in employment and wage lawsuits across the U.S. and is investigating Wal-mart’s new dress code policy.  Are you a Wal-mart worker — or do you know one– who has bought clothes due to Wal-mart’s new dress code policy?

If so, and you are interested in speaking with a lawyer, please contact me, attorney Michael Brown, at 920-757-2488 or mbrown@dvglawpartner.com.

According to news reports, Wal-Mart has a new dress code policy that requires workers to wear certain clothes to work.  If workers do not have the clothes– e.g. pants, shirts, etc. of the required kind and color– they must obtain or buy them.  Wal-mart informs workers they can buy the clothes from Wal-mart.

It is possible workers may have legal rights and options.  Different States have different laws that potentially apply to clothes-purchase issues.  Legal rights depend on the circumstances, including the State a given employee works in, whether the employee has purchased clothes (and has a receipt or other proof), and other factors.

A worker interested in legal rights should not rely on his or her own assumptions or advice from people who are not employment attorneys.  If you are interested in speaking with an attorney, please feel free to contact me.

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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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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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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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Were You a Shareholder Who Was Removed or Financially Harmed By Majority Shareholders or Board of Directors? You May Have Strong WI Law Rights (Even Without a Contract)

In some instances, a shareholder of a company is also employed by that company, and compensated via salary, bonuses, dividends or other financial benefits.  If you were a shareholder of a Wisconsin company and were removed from duties or suffered financial loss due to actions of majority shareholders or board of directors, you may have strong legal rights.  These rights may exist even if you did not have a contract, and even if you were labeled an “at will” employee.

Below I give an overview of what at-will employment is.  Then I explain why a Wisconsin at-will employee– if he or she is a shareholder deprived of employment or income– may have strong legal rights notwithstanding an “at-will” label or a lack of a contract.  Continue reading

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Does Your H-1B Wage Loss Situation Have the Makings of a Class Action?

If you are an H-1B worker who has been underpaid or otherwise mistreated by an H-1B employer, you may be able bring your claims not only on your own behalf, but also on behalf of a class of similarly situated individuals.  The attorney-authors of this blog, along with our attorney colleagues at the excellent class-action law firm Kotchen & Low, have litigated proposed class-action cases (as well as single-worker actions), in a variety of legal forums.  When H-1B workers’ situations do in fact support class-action treatment of their claims, their lawsuit can be very strong.

This article describes various factors that support class treatment of H-1B workers’ claims, the nature of such class claims and forums they can be brought in.  If you are an H-1B worker who is curious whether your situation could support a class-action case, this article will give some general educational information and food for thought.

Please note that only a competent attorney can adequately evaluate whether a valid class action would exist for your situation or should be pursued.  So if you want legal advice about whether your own situation can be pursued as a class action, please consult with a competent attorney (if you’d like, you can have a free initial consultation with us, or with another attorney of your choice).

This article will first discuss some factors that could potentially support an H-1B class action.

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Good WFEA Case Decision re Retaliation Based on Good Faith Complaint of Discrimination

The Wisconsin Court of Appeals issued a decision involving the Wisconsin Fair Employment Act (WFEA) decision,which is good for WI employees alleging retaliatory discharge under WFEA discrimination law.

The decision was in favor of an employee-complainant who complained of “discrimination” generally to a manager (without specifically referencing the type/protected class basis) shortly before being fired.

http://www.wisbar.org/res/capp/2011/2010ap001902.htm , Town of Rome v. LIRC, 2010AP001902 09-08-11

According to the decision, the employee’s complaint about discrimination, while not specific, was sufficient to protect her under WFEA’s anti-retaliation law.

The case also supports WFEA’s in-part standard, that the employer is liable for mixed motive termination if it would not have fired the employee in the absence of its (partial) motivation to retaliate against the employee for her opposing discrimination.

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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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