Category Archives: Employee Tip – Problems at Job

Your Job Going Downhill? Be Careful About Mentioning “Severance” First

As an attorney who often deals with employment law, it’s no surprise I’m often contacted by employees whose jobs aren’t going well.  Many employees report their employers appear to be preparing to fire them, or trying to force them to quit (by making life hell at work, etc.).

Some of these employees ask me, “Should I just ask my employer to admit they want me gone and ask if they’ll give me a severance?”

There is no catch-all legal advice if you are in this situation, as all situations are different and your particular facts could impact advice an attorney would give.  With that said, I can say it is usually not in employees’ interests to raise the topic of severance first.

Here are factors why mentioning “severance” first is often a bad thing for employees: (1) the employers can claim the employees (by mentioning severance first) had “quit”, and use that “quit” notice as basis to try to disqualify the employees from unemployment benefits; (2) the same “quit” theory can often be used to defeat legal claims from employees who pursue discharge-related legal claims (e.g. discriminatory discharge, etc.); (3) the employers may not offer any severance anyway; and/or (4) if the employer was open to offering a severance, the offer may have been better than what the worker envisioned had the worker kept quiet and waited for the employer to mention severance (and a severance offer) first.

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Statistics, WI Equal Rights Division Discrimination Claims

I recently received statistical information from the agency that handles Wisconsin-law employment discrimination complaints, the Wisconsin Department of Workforce Development, Equal Rights Division (ERD).

The numbers reveal difficult odds, but not impossible odds, for employee-complainants who have filed discrimination complaints at ERD.  I should note that each case is unique, and if you are a worker with a potential or actual discrimination complaint, you should not assume your case is bad (or good) based on the general numbers in this article.  For an assessment of your odds, you should talk to an experienced employee rights attorney– and no, it doesn’t have to be me!  If you want to review some general numbers, read on.

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Assumptions Kill the Cat (At Least in the Workplace)

In the workplace, curiosity does NOT, as they say, “kill the cat.”  To the contrary, if you are in a workplace dispute, curiosity is a GOOD thing.  Curiosity will cause you– before you take action– to take time to pause, gather more information, learn what is truly going on, and hopefully learn from credible sources what options you truly have.  These are good things.  Curiosity is a good instinct to have when you are in a risky situation, like a workplace dispute, and you don’t know the full ramifications of what’s going on.

Unfortunately, when I encounter workers who had had workplace disputes, and who are seeking my legal advice as a result of those disputes, all too often those workers had not had enough curiosity back while they were interacting with the employer.  That is, many workers who get into workplace disputes make assumptions and act on those assumptions.  Worse, those assumptions usually turn out to be wrong, and in fact harmful– with workers commonly losing their jobs, their unemployment benefits, their legal claims, etc.– in part or in whole due to those assumptions.

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Employment Dispute? YOU’RE Probably the One On the Hotseat; Don’t Blame from the Hotseat

If you are a worker in a dispute — whether it’s a dispute with your current employer’s management, a dispute with your former employer about unemployment benefits, etc.– there is something important you should know.

Regardless of what the employer may have done wrong, YOU are probably the person who is under the most scrutiny, and who has the most to lose. That is, you are probably the one on the hotseat.

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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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Article “Understanding Conflict Dynamics” By J. Kim Wright

This is an interesting article about conflict resolution by J. Kim Wright, posted on the American Bar Association website.

The article is geared toward lawyers.  But its advice applies well for anyone involved in any type of conflict, including those of you involved in employment disputes.

The article describes five conflict-handling- personality traits: (1) the conflict avoider; (2) the accommodating style; (3) the competing style; (4) the compromising style; and (5) the collaborating style.

Each trait is discussed, as well as its pros and cons, and good and bad situations where each trait should be considered.

One described trait jumped out at me: the competing style, a type of communication I constantly see MISUSED in the employment context.  As the article puts it:

The competing style is assertive and uncooperative—a competing individual pursues his or her own concerns at the other person’s expense. This is a power-oriented mode, in which one uses whatever power seems appropriate to win one’s own position: one’s ability to argue, one’s rank, economic sanctions. Competing might mean “standing up for your rights,” defending a position that you believe is correct, or simply trying to win.

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Filed under Employee Info/Tips - Pre-Litigation - Problems At Job, Employee Tip - Problems at Job, Employment Law Resources, Philosophy - Employee Rights, Resources for WI Workers