Category Archives: Employee Tip – Hiring an Attorney

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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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.

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Employee Tip: Probable Cause Determination from ERD- Now What?

Many employees file discrimination complaints with Wisconsin’s Equal Rights Division (ERD) without retaining an attorney. If you are an ERD complainant without an attorney, and you just received a “probable cause” determination, you may be wondering “now what?” Or at least you should be. In the time following a probable cause determination, things will get more formal and legalistic. You should get the most information you can about what’s to come.

Below, I’ll discuss what a “probable cause” (PC) determination means, what a “no probable cause” (NPC) determination means, and what each determination may mean for you. Bad news first.

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Employee Tip: Problems Getting in Touch With an Employee Rights Attorney?

If you are an employee who is having trouble getting in touch with an employee rights attorney, please know two things: (1) your frustrations are entirely understandable- chances are, you are calling about serious, and perhaps urgent, employment issues that seriously affect your life and income; and (2) there are often several legitimate reasons (having nothing to do with anything negative about you) why an attorney cannot speak to you as soon as you’d like or need.

My best advice for you is this: research and find one or two employee rights attorneys who strike you as knowledgeable (or are recommended as knowledgeable by a reliable source) and be politely persistent until you get a chance to speak to one of those attorneys.

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Pump You Up

Employers- are you looking for an employment defense attorney who will unquestioningly agree with every word you allege, gladly smear your opponent employee as “ridiculous” and a “liar” and the like, and write letters to your opponent (although more so written to you) proclaiming your organization will be “vindicated?”

Employees- are you looking for an employee rights attorney who will unquestioningly take your “slam dunk case” as you call it, who gladly promises to be more “aggressive” than the prior two attorneys you retained, and who nods and agrees that your case may well go to the Supreme Court because you’ll “never settle with those people?”

If you search long enough, and if you bring a big wallet along, you will eventually find the right attorneys to Pump (PAUSE, CLAP) You Up.

 

 

 

 

And at some point (well short of the Supreme Court or “vindication”) you will realize that you have spent a lot more money on legal fees than you needed to, and you probably WILL “settle with those people” (or, at least you’d BETTER).  And the settlement will be a disappointment to you as compared to what you had believed back when your attorney was vocal about pumping you up, and silent about the multiple risks of deflation.  But at some point you’ll see it’s better to cut your losses than continue to pay Hans and Franz’s membership fee.

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Employee Tip: Important Questions to Ask When Hiring an Attorney

Below is an article I wrote about important questions a client should ask when hiring an attorney. I submitted the draft article to a business magazine, so the examples are written for the perspective of an employer-client who is seeking an attorney, rather than that of an employee-client. However, the questions and recommendations apply equally well to an employee-client, or to any client seeking legal representation for any legal matter (employment law, tax law, real estate, etc. etc.).
Important Questions to Ask When Hiring an Attorney

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