Category Archives: Employee Tip – Considering a Legal Action

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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WI Supreme Court Upholds Decision in Favor of Employees Fired By Employers Looking to Avoid Benefit Payments

This Wisconsin State Bar article describes a recent WI Supreme Court case, US Bank, the outcome of which I think is very helpful for diverse employee benefits situations.  The WI SC was split (the even # was due to Justice Annette Ziegler not participating), and the appellate decision in favor of the employee thus stands.

The upheld appellate holding: “an at will employee does not forfeit benefits [in this case, a vested sales-related bonus per a bonus plan] that have accrued during his or her employment even though the agreement governing those benefits conditions their receipt on the employee’s continued employment if the employer fires the employee solely to prevent the employee from getting the accrued benefits.”

The appellate court (full decision here) relatedly found:

While it is true, as U.S. Bank argues, that in the at-will-employee context there is no “duty to terminate in good faith,” Brockmeyer v. Dun & Bradstreet, 113 Wis. 2d 561, 564, 569, 335 N.W.2d 834, 836, 838 (1983) (at-will employee) (emphasis added), the requirement that parties act in “good faith” inheres in every contract and, therefore, an employer must comply in good faith with its “contractual obligations,” Hale v. Stoughton Hosp. Ass’n, Inc., 126 Wis. 2d 267, 274, 376 N.W.2d 89, 93 (Ct. App. 1985) (“Brockmeyer does not relieve an employer of contractual obligations it has undertaken.”).

 

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Have You Thought About Investments (With or Without an Attorney) Required for Your Potential Legal Matter?

If you are an individual thinking about pursuing a legal matter– and you are like most people– you probably haven’t given thorough thought to the investments required for that type of legal matter.

Investments are not just money, but also time and emotion.

Sometimes, people proceed without an attorney, and are surprised to learn later than an attorney would have represented them on a contingency (pay-only-if-you-win) basis, or at a fee far less than what was envisioned.

Some people proceed without an attorney, and are surprised to learn there are investments of time and money (aside from attorney fees) that they did not anticipate or estimate accurately.

Sometimes the investments that play out for a legal matter turn out to be far more, or far less, than what an individual had expected.

For example, individuals who pursue a discrimination complaint without a lawyer are often surprised to learn the process can take years, and that significant fees (other than attorney fees) can come up, like deposition fees, as the matter progresses.

If you start a lengthy legal process before talking to a lawyer– e.g. say you file a discrimination complaint, and don’t talk to a lawyer until a year into the legal process– you may learn that you made significant investments that were not appropriate. For example, when an attorney works for an employee on a discrimination complaint, it is common for the attorney to exceed 100-200 hours on that matter until the point of a legal determination. If the employee proceeded on her own and did, say, 150 hours of work, then the value of that work– if paid at only the minimum wage of $7.25 per hour– would be $1,087.50. Even if it seems proceeding on a matter without an attorney will not be costly, the value of unanticipated work, and the value of real out-of-pocket expenses, can make the real-world investments greater than what you may have envisioned.

One way an attorney can provide a great deal of value– often for a few hundred dollars or less, and sometimes for free– is at initial consultation. That is, when an attorney evaluates your potential legal matter before you begin it. If you cannot consult with an affordable attorney, then you should try to seek out another knowledgeable source– say, a representative within the legal system (e.g. a discrimination agency representative)– to ask basic questions such as how long a matter like yours takes on average, what statistics exist about how cases are resolved, and for any required investments that that person may know of.

In many instances, the investments are worth it. But you have no way of knowing that in advance, unless you get comprehensive information about what your likely investments will be, with and without a lawyer.

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Work Hours Deducted From Paycheck? Don’t Give Your Employer a Free Lunch.

Free Lunch!
Image by LexnGer via Flickr

Has your employer deducted money from your paycheck for hours that you worked?

Some employers will make mandatory deductions from hourly workers’ paychecks, without regard to time actually worked.  For example, some employers will automatically deduct one half-hour per day for a “required” lunch period, and will make this deduction without checking whether the employee was actually OFF work, and actually took a break, during that time.

Moreover, the employee’s work circumstances may have given him or her no choice but to work through lunch.  It is one thing for an employer to say an employee is free to take a lunch break, or “must” take a lunch break every day.  But that expectation of the employer does little good if there are competing expectations (e.g. busy schedules, complaining customers, limited time available, etc.) that demand an employee perform work during the designated lunch time.

Please know that if you actually WORK during the deducted periods of time (e.g. you worked during the deducted “lunch” breaks), it is NOT acceptable for the employer to reap the benefits of your work without paying you.

It is not enough for the employer to claim they told you that you were prohibited from working.

The Fair Labor Standard Act (FLSA) at 29 C.F.R. § 785.13 (Duty of management) provides the following:

“[I]t is the duty of the management to exercise its control and see that the work is not performed if it does not want it to be performed. It cannot sit back and accept the benefits without compensating for them. The mere promulgation of a rule against such work is not enough. Management has the power to enforce the rule and must make every effort to do so.”

If you are not being paid for work that you performed, you should consider having an employee rights attorney review your circumstances to see whether you should be receiving wages for the deducted periods, and whether the employer is violating wage law.  You may have good legal options to claim wages, and/or take back your free lunch.

DISCLAIMER: The information in this blog is not legal advice, nor does it establish an attorney-client relationship between you and attorney Michael Brown or his law firm.

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Polite Hearings, and the Distinction Between the Person and His Conduct

Dogs and Cats Living Together!

Recently I was at a legal hearing.  It was the same old drill in most respects.  Two parties opposed each other.  A boss had fired an employee.  The boss’s testimony opposed the employee’s testimony, and vice versa.  Neither side changed any beliefs when the hearing was over.

But after the hearing, a great thing happened.

After the hearing, I saw my client, the employee, approach the boss that had fired him and now testified against him.  The two men proceeded to shake hands.  Then they stood and talked for awhile.  From the two persons’ body language, I could tell that they liked and respected each other.  I also knew that neither person had changed his mind about the hearing, or about feeling right about his position on the job termination.

These two dynamics– having a big dispute with an opponent, yet liking that opponent– are not contradictory.  Not if disputes are recognized for what they are: a conflict between two views, not a conflict between two persons.

As is often written, it’s important to recognize there’s a distinction between a person and his views.  Between a person and his conduct, or a person and his misconduct, e.g. “hate the sin, love the sinner.”

It’s easy to note these distinctions, and their surface logic that it’s best to be polite and not personalize matters.  But these oft-spoken standards usually go out the window after a legal dispute starts.  More often than not, legal proceedings are made personal and taken personally.

But not this time.  Which is more than good.

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