Category Archives: Philosophy – Employee Rights

Take Justice Back: A New Website Regarding Rights of Individuals Harmed By Corporations

Today, the American Association for Justice, a lawyers’ group, launched a new website called Take Justice Back.  The website seeks to inform everyday Americans about the civil justice system, and why they should care about protecting that system, and protecting the rights of individuals harmed by corporations.

The American Association for Justice describes the new website as follows:

Take Justice Back will:• EDUCATE people on how their rights are being threatened;

• MOTIVATE Americans by sharing real stories of people denied justice;

• ENGAGE consumers through social media such as blogs, Facebook, and Twitter; and

• EMPOWER activism by creating a portal where people can share information, send letters to members of Congress, sign petitions, and link through to their own blogs

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An Excellent Article With Cites/Authority For Employee Rights Attorneys

For you employee rights attorneys out there who deal with federal summary judgment motions and common employer arguments, including those arguments that over-rely on the credibility of employer (interested) witnesses, this article is a must read:

Preserving the Right to a Jury Trial by Preventing Adverse Credibility Inferences at Summary Judgment,” by attorney Matthew C. Koski, of The Employee Rights Advocacy Institute For Law & Policy.

This article has a very good discussion of the legal authority, and includes case law and cites that every employee rights attorney could use to help their employee-clients in federal summary judgment practice.

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From Positivity Blog: 7 of My Favorite Timeless Tips from the Last 2500 Years

These 7 tips describe very practical approaches and attitudes for life challenges. The quoted tip below reminds me of the Supreme Court, and all the confirmation-process talky-talk where Justices are described with labels like “activists” (bad label) or “umpires” (good label). Behind all the labels and analogies, as well as behind the intellectual rationalizations of complex legal decisions, there are concrete benchmarks– actions by the Justices– that are much more predictable and telling than what is said about and by the Justices. Is a Justice an “umpire,” as described, or do the Justice’s actions on occasion reflect idealism and contradict the umpire ideal? Not to pick on Justices. This is something we all struggle with, to make sure our actions constantly back up our stated intentions.

1. Andrew Carnegie on paying attention to the more important things.

“As I grow older, I pay less attention to what men say. I just watch what they do.”

I have to agree, I pay less and less attention to what people say. Because in the end, what someone does is the most important thing. Talking is easy, but walking your talk is harder. And walking it consistently even though you fall, slip back into old habits and make mistakes is a huge part of success.

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Lipsen/Roll Call Article re Importance of Civil Justice System and Trial Lawyers

Linda Lipsen, CEO of the American Association for Justice, wrote at RollCall.com about the importance of trial lawyers as the last resource (and often, the only resource) to address corporate misconduct.

Reading this article made me think, as I often do, of a thought experiment.

Here it goes– think about your answers to the following questions:

(1) How many individuals, yourself and/or others, do you know of who filed a lawsuit against a corporation?

[I bet your answer is very few].

(2) How many of those individuals were found by the legal system to have a frivolous claim?

[I bet your answer is zero].

(3) How many individuals do you know who in effect “won the lottery” and walked away with a big payday as a result of their lawsuit? (This being individuals you KNOW FIRSTHAND won what you think– people routinely gossip, second hand about individuals supposedly winning far, far more than actually occurred).

[I bet your answer is zero, or very few].

(4) How many individuals do you know of who have lost $500 or more as a result of a corporation’s careless or intentional conduct?

[I bet your answer is far more people than your answers to 1-3 combined].

Ms. Lipsen writes:

It has been a daily occurrence to see the news dominated by the latest example of corporate misconduct. Each saga follows the same pattern: Tragedy occurs, followed by apologies tempered by denials and claims of innocence, and evidence that profits were knowingly put ahead of the safety and well-being of the American people.

At the same time, we have also seen how federal agencies lack the resources to adequately protect and safeguard the American people. Regulation is difficult when corporations brag about the millions of dollars saved by limiting their recalls or ignoring industry guidelines in spite of consumer safety.

Ultimately, Americans simply want safe products, fewer preventable injuries and a restoration of checks and balances that give people a fair chance to obtain recourse — before a company’s rampant negligence secures its position in the hot seat. But only after tragic accidents do we closely analyze the agencies and systems that failed, and what must be corrected.

Every time we do so, there is only one institution that consistently protects consumers and holds wrongdoers accountable: America’s civil justice system.

[O]nce these [corporate] scandals fade away, it will be telling to see whether some lawmakers continue with their fixation on “tort reform” — or handing out immunity to the very same corporations responsible for injuring consumers in the first place. Because today, such calls are not only illogical and tone-deaf, but contrary to the interests of all Americans.

Corporations, or their hired guns at the U.S. Chamber of Commerce, have dedicated millions of dollars to demonize trial attorneys. Yet each corporate scandal and dangerous product show that when the first lines of defense fail to protect the safety of consumers, only the civil justice system can hold negligent corporations accountable and restore justice. At the end of the day, it’s trial attorneys — not the corporations that put profits ahead of safety — that speak for the interests of these families and consumers.

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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

Employment Law Case Summaries (For the Employment Lawyers Out There)

For the employment attorneys out there– this is a great blog with up-to-date employment law case summaries from all Circuits.

The blog is authored by Paul Mollica of the Chicago employment law firm Meites, Mulder, Mollica & Glink.  Paul is a great colleague for whom the term “lawyer’s lawyer” does not go far enough.

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Is This Your Job & Life? (Waking Life – Dreams for Free)

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The Super, Scary, Ultra Discretion of the Axman

  Axman-2

Say you’re a corporate employee.  You came down with a nasty virus.  Your sister and her kids passed it on to you; they later apologize for having visited when they were sick.  You get a 102 degree fever, fatigue. Doctor says you’ll wind up in bed for a week, gives you a doctor’s note.  You hadn’t missed a day of work in years before this.  So you call in sick to work, only to hear the HR rep be snide with you, question whether you’re really sick, and badger you before finally granting you the time off.  This upsets you.  So you can’t help but give her your two cents about her and the company before hanging up.

Say you’re an HR employee.  An hourly worker calls in with a “virus.”  Just happens to be a Friday.  Also happens to be the same worker Manager Jones reported as ”insubordinate” a few weeks ago, in relation to a customer complaint.  This worker has found a doctor willing to give him a note for a full week off for a flu virus.  What kind of virus lasts a full week– doesn’t the typical flu last 72 hours at most??  Worst case, his flu should be over, and he should be back to work, early next week as opposed to Friday.  That department is already short workers.  Now, you’ve got to find someone to cover, on short notice.  But you’ll have to do it.  God forbid HR question the medical necessity of this 1-week flu vacation; if so, you’d have to answer to some lawyer the employee hires, and after that have corporate chew you out.

What stinks about this scenario (besides all of it)?

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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.

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CREDO’s Preemptive Call to Action to Fire Alleged “Mastermind” of Terror- I Mean, “Mastermind” of Torture

As a progressive Democrat, I want to believe in my heart that when progressives say “no one is above the law,” we mean it.  I also want badly to believe it is true when progressives say it is a fundamental value of ours that all individuals should be provided with fair legal proceedings (i.e. due process) before being condemned as guilty by the public or by some politician, and before being deprived of rights, liberty and/or property.

By due process extending to “all individuals” this includes (at least in my understanding) all individuals.  “Enemy combatants” or alleged terrorists are individuals, so they qualify, and progressives routinely acknowledge this.  But here’s the catch: “Neo-cons” are also individuals, so they should also be entitled to due process before being publicly condemned and deprived of rights or property.  Same goes for “religious fundamentalists.”  And, most pertinent to this post, same goes for alleged torture supporters  in the Bush administration.

Today, I was very disappointed to review an email and web link I received from the progressive organization  CREDO (which I think is usually very supportive of individuals’ rights), asking people to assume that an individual- William Haynes, a former attorney with the Bush administration who has NOT yet been subject to legal investigation or due process- is a “mastermind” of torture.

Worse, CREDO asks that people sign a petition that seeks to deprive Mr. Haynes of a job he has been working since leaving the Bush administration.  The job, of note, is with a private entity, Chevron, and is unrelated to Mr. Haynes’ government job or alleged involvement with torture.  CREDO calls this job “cushy,” and apparently finds high income relevant to its demand that Mr. Haynes be fired.

CREDO sums up its request as follows: “The legal mastermind behind Bush’s torture policies deserves prison, not a giant paycheck.”

I generally appreciate and support CREDO’s recommendations and actions, but I couldn’t disagree more with this one.

An appropriate approach for CREDO and the public would be – as opposed to demanding Mr. Haynes be terminated from his Chevron job-  to demand an impartial investigation of his conduct with the government, and to demand initiation of criminal action if the investigatory evidence warrants that.   CREDO has made similar demands in the past, and has otherwise been highly supportive of individual rights and due process.

However, when we progressives say “no one is above the law,” to me that really means no one.  President Bush and Mr. Haynes, definitely- but this also means CREDO, you and me are also subject to the law and must also respect and not contravene due process.  We, as progressives, are not above the law just because we are not supporters of President Bush, or just because we didn’t allegedly torture anybody.  We have made other types of huge mistakes.  We’re human and, for just one example of our common mistakes, we are prone to occasionally hop on moralistic high horses that cause us to abandon progressive principles to service a thirst for righteous condemnation, like CREDO’s call to action.

CREDO’s request that Mr. Haynes be deprived of liberties and property (those associated with his current job), based on past conduct which has not yet been legally investigated or prosecuted, is exactly the same philosophy as to legal rights and civil liberties that the Bush administration viewed to apply to “enemy combatants” and that progressives have opposed vehemently.  Yes, exactly.

If you are a progressive, and your gut reaction to this post is to be defensive on CREDO’s behalf and think up rationalizations or distinctions to claim CREDO’s call to action is fundamentally different than President Bush’s approach to civil liberties, then I would say that type of defensiveness (which I myself have made the mistake of having on different issues) is yet another similarity with President Bush.  Part of being a true believer in individual rights and due process is keeping our eyes open to our own frequent and inevitable mistakes, and our frequent needs to be subject to criticism and correction by ourselves and others.

All of us- progressives, conservatives, independents, and US citizens of all types and kinds- are heavy contributors to the US’s existing deficiencies with individual rights and due process.  We all have contributed by our actions, by our inaction, and by our many instances of apathy.  I would add that progressives are especially responsible, because we claim to be the most attuned to principles of individual rights and due process, and as such we should be most sensitive to these issues, and should be the most primed to call a spade a spade when it crosses our radar.

Yet I expect most progressives who read CREDO’s request will get caught up in the emotion of President Bush-bashing and will make the horrible mistake of assuming there is a difference between (1) deeming someone a “mastermind” terrorist and demanding deprivation of their rights and property before legal investigation and due process has occurred; and (2) doing the same thing with a “mastermind” torturer.

I don’t know about the rest of you, but what I want from government (and from CREDO, Chevron, and everyone else) is a fundamental and entrenched commitment to fair inquiry and due process.  If that fundamental structure is restored, then you and I can hopefully be saved from our own irrationality when we go off on future rants (and we will) about others who we have pre-judged without complete and fair information.

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