Category Archives: Employee Tip – Considering a Legal Action

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.”).

 

Leave a comment

Filed under Employee Tip - Considering a Legal Action, Employee Tip - Problems at Job, Resources for WI Workers

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.

Leave a comment

Filed under Employee Tip - Considering a Legal Action

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.

Add  to Technorati Favorites

Reblog this post [with Zemanta]

Leave a comment

Filed under Employee Info/Tips - Pre-Litigation - Unpaid Wages, Employee Tip - Considering a Legal Action, Employee Tips - Unpaid Wages

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.

Leave a comment

Filed under Employee Info/Tips - Litigation - Mediation, Employee Tip - Considering a Legal Action, Employee Tip - Unemployment, Unemployment - Wisconsin

Asked to Resign– Should You Do It?

Have you been asked to resign your job?  Told it will be “better for you” if you do?  The employer may list potential benefits of resignation, such as it being better for your job search, and helping you not have to report a discharge on your resume, etc.

And sometimes, resignation is in fact the better option for a worker.

But here’s the issue: do you really want to rely on your employer’s advice about what’s in your best interest at the point the employer is asking you to leave?

Often, for Wisconsin workers, it is a worse decision to agree to a forced resignation than to be fired.

Here are some potential disadvantages of resigning (as opposed to being fired):

It Can Hurt Unemployment.

A resignation can make it more difficult for a worker to get unemployment benefits.

It Can Hurt Potential Legal Claims.

A discrimination claim or other termination-based legal claim can lose value if the worker resigns as opposed to being fired.  An employee who is fired can assert the employer (the termination decision-maker) is clearly responsible for the job termination and the lost monies that result from that decision clearly made by the employer.  An employee who resigns leaves himself more open to argument that he (rather than the employer) was the person who caused his lost monies, thus the employer argues it should not be responsible for legal damages.

It Can Hurt Potential Severance or Settlement Negotiations.

If an employer has a signed resignation document from you– particularly if it’s also accompanied by a signed statement “admitting” wrongdoing that you didn’t really agree with but signed anyway because you felt pressured, etc.– then the employer knows that you have weakened the potential value of your legal claims.  Lesser legal claims = lesser leverage for you to negotiate severance or settlement terms with the employer.

This post is NOT saying that agreeing to resign may not have potential benefits, or may potentially help a worker, in some situations.

There are some situations where on the scale of pros and cons, it makes sense to accept a forced resignation rather than be terminated.

But in my observation, many workers do not consider and weigh all the pros and cons, and too readily accept the employer’s assertion that resignation “is in your best interest.”

If  an employer is asking you (or telling you) to leave, your best interest is not the employer’s first priority.  Consider talking to an employment attorney, or at least someone who is independent of the employer and who can speak to you about what is in your best interests without having to serve the employer’s interests as well.

Add to Technorati Favorites

Leave a comment

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

The “Principle” Matters– But A Civil Lawsuit Is Often Not the Means to Pursue It

This blog often says an employee in a dispute with an employer should pay more attention to bottom-line financial considerations (e.g. how much money an employment lawsuit could cost you vs. how much you could win) than to the “principle” of the matter (e.g. how wrong the employer’s action was).

Many folks disagree with this blog’s de-emphasis of “principle.”  And there are some very abusive bad employment situations out there one can point to as examples of “principle” being important, even when financial loss was not a factor.  I have heard from workers whose bosses subjected them to physical assault, to screaming, and to comments and acts that were so insulting they leave me scratching my head as to which direction this world is heading.

Hostile workplace situations– which often do not involve financial loss, or violate the law– are nonetheless harmful and should be addressed.

So, I must note the principle of the matter DOES matter. If your employer is harassing you, that is wrong, and that matters, regardless whether an attorney tells you that you have a good legal claim or not.

The concern this blog has with “principle” is mainly an issue of FORUM: if you address your issue via a civil lawsuit (say, a discrimination claim) this is often not the best forum in which to pursue a principle.  If the “principle” matter is accompanied by an economic loss– for example, if someone is sexually harassed, fired for complaining of sexual harassment, and loses six months of income– then the civil justice system is an appropriate place to try to recover lost money along with the principle.  But the civil system does not make an employer change its heart or apologize, and often winning parties do not even feel a sense of vindication, they just have a financial gain.

A principle– such as correcting an employer’s misconduct, ensuring other employees are not harassed or fired for wrong reasons in the future, etc.– is often better addressed by non-litigation means than by litigation.

A person looking to correct an employer’s conduct can (1) pursue informal, non-costly means to address a problem, like a heart-to-heart discussionwith a representative of the employer (hey, sometimes to your surprise there is a person of influence who will listen to you, you both have open minds, and communication works!); (2) contact your legislator and/or pursue legislation to address the problem/issue of “principle” (for example, Wisconsin could benefit from anti-bullying legislation like some other states have, which prohibit abusive conduct by employers); (3) take your labor and your talents to a better work environment, knowing there are better days ahead.

Reblog this post [with Zemanta]

Leave a comment

Filed under Employee Tip - Considering a Legal Action, Philosophy - Employee Rights

Should You Drop the L- Bomb, and Tell The Employer You’re Retaining a Lawyer?

An experimental scale model of the B-25 plane ...

Image by The Library of Congress via Flickr

Are you an employee in an employment dispute, and considering whether to “drop the L-bomb,” and tell your employer you’re retaining an attorney?

Occasionally, an employee/prospective client who consults with me will tell me that he already dropped the L-bomb, and already told his employer he would be retaining a lawyer.

Often, this news was told to the employer in a huff, e.g. “If you insist on denying my medical leave, Ms. Manager, well then you’ll be hearing from my lawyer!”  Every once in awhile, an employee who I’ve never even met or communicated with will send an email to the manager he or she’s having a dispute with, and will copy my email address (found on the internet) on the email to the manager.  Thus this gives the impression I have been retained to represent someone I’d never been in contact with.  (For anyone considering using a lawyer/email address to do this, please DON’T– it’s not a good idea for many reasons).

Making L-bomb threats may feel good when one is frustrated.  However, what feels good to say or do “in the moment” of an angry employment dispute can often result in bad, long-term consequences.

In most situations, it will NOT help an employee to drop the L-bomb, and tell your employer that you’re retaining a lawyer.

In many situations, the employee’s mere mention of the L-word makes the employer even more upset, makes the employer take more adverse actions, and makes the situation worse.  Most employers are not intimidated by L-threats, because often the threats aren’t carried out.  It may be the employer’s experience that they’ve heard many L-bombs dropped, but usually a lawyer was not hired, there was no lawsuit, etc.  Or perhaps your employer anticipates you will likely get a lawyer, but the employer has planned for the worst-case L-scenarios and risks, and the employer isn’t worried about your particular legal issues.  And sometimes, an employee’s L-bomb threat appears to work, and the employer seems to back off, but only later the employee learns the L-threat just made the employer take more carefully-planned actions, without giving the employee (and her attorney) advance warnings anymore.

In sum, the L-bomb usually turns out to be less intimidating to the employer, and less effective in improving the employee’s situation, than the employee expects.

With all that said, there are certain occasions where the news of hiring a lawyer, when well-delivered, CAN make an abrupt and positive impact on an employee’s matter.  And if you’re hiring an attorney long-term, such as for litigation work, the employer must and will be told you have a lawyer at some point, in fairness to the employer.  But before you rush to deliver that news yourself, especially if you’re in a huff, you should stop to reflect.  Since you’re getting a lawyer involved, then it only makes sense you talk to that lawyer about your plans (including any planned announcement you’ve retained a lawyer) before you put those plans in action.

It’s best that the lawyer and employee/client discuss and plan in advance the announcement that the lawyer was hired.  Then that news can be delivered to the employer under carefully-considered timing and circumstances.

that the lawyer and employee/client discuss and plan in adva
Reblog this post [with Zemanta]

3 Comments

Filed under Employee Tip - Considering a Legal Action, Employee Tip - Hiring an Attorney, Employee Tip - Problems at Job

Things to Consider for Defamation Action Based on What a Wisconsin Employer Said

Speak no evil, hear no evil, see no evil...
Image by Joits via Flickr

Commonly, I get calls  from workers who are interested in a defamation action, based on false statements an employer made.  Defamation is a State-law claim, and I have represented persons for defamation claims under Wisconsin law.

If you are contemplating a defamation action against an employer, consider the things below.  (Please note this post does not provide legal advice; if you want legal advice, you must consult about your specific situation with an attorney who is licensed in the State in which the allegedly defamatory statements were made). Continue reading

Leave a comment

Filed under Employee Tip - Considering a Legal Action, Employee Tip - Problems at Job

The 5 Biggest Mistakes Employees Make In Employment Disputes

Do Not -----?
Image by Observe The Banana via Flickr

Below are the top 5 mistakes I see employees make in employment disputes.  And, I should note, in my own work experience, dating back to the junior high paper route, I have made many of these mistakes.

Please know these are general opinions, and do not give legal advice for any particular situation.  If you find yourself in an employment dispute and want legal advice, you should contact an employment attorney.

Having encountered thousands of employment disputes, here are the top 5 employee mistakes that I observe.

Continue reading

Leave a comment

Filed under Employee Tip - Considering a Legal Action, Employee Tip - Problems at Job

About to Complain to Management? Think Big Picture.

If you are gearing up to give management an earful tomorrow about all the wrongs they have been committing, please give some thought to the big picture before you head off to give your speech.  Especially if you are right, and you have stacks of documents proving you are right.

Being right is not enough.  If your employer thinks the sky is green, and fires you because you insist it is blue, you may be right but you are still fired.  And if you intend on proving (to the point of a legal judgment) that the sky is in fact blue, you have at least a few years of litigation, and a few years of significant expense, to look forward to.  

Most companies know this.   They know they hold your cards– they hold your job and income, and they can take it away.   Abruptly.  If they fire you, they know you will have no income, and that you’ll probably need income if you wish to enforce your legal rights.  They know litigation takes years to complete, and they know they will likely have much more money to pay toward litigation than an individual like you does.

Are you thinking about all these dynamics when you’re planning to confront your manager?  

Now, it’s true that if you complain about your employer’s wrongdoing, there are laws that protect against retaliation.  There are also laws that prohibit speeding and Bernie Madoff-ing, and you can see how effective those laws are as applied to reality.  Sometimes those laws are effective– sometimes wrongdoers get caught and don’t squirm out of a significant legal penalty, but too often the real-life penalties do not turn out like the wronged person would like to think.

Before you give your manager an earful, make sure you have a back-up plan if they fire you.  A real back-up plan.  A new job lined up.  A large nest egg saved up.  Advice from a competent and value-conscious attorney, telling you what potential legal claims and options you have.

But if you believe that simply being right is enough, you are rolling the dice.

Leave a comment

Filed under Employee Tip - Considering a Legal Action, Employee Tip - Problems at Job