Category Archives: Philosophy – Employee Rights

Interesting Statistics About Lawsuits in WI and Elsewhere

Does Wisconsin and the U.S. generally need “tort reform?”  Are too many (or an increasing number) of lawsuits being filed, with too many plaintiffs receiving large awards, and too many businesses suffering due to law suits by individuals?

As a plaintiff’s employment attorney, I have shared my own observations and biases in trying to answer questions  like these.  See, for example, my blog posts “Biggest Risk to Employers? Frivolous Suits? No. The (Expensive) Certainty of Being “Right” and “Corporate Rhetoric, the Decline of Individual Rights, and What You Can Do About It.”

My views aside, the best answers to the questions above are non-biased and objective answers, grounded in statistics and facts.  While it is my opinion no one can give answers that are purely objective and non-biased, folks interested in the questions above should check out this resource, which is much more objective than my blog posts: “Civil Justice in Wisconsin: A Fact Book, with Commentary” by Marc Galanter and Susan Steingass, of The University of Wisconsin Law School.

(I heard of this fact book via the excellent blog by Jon Groth, a Wisconsin personal injury attorney).

I’ll quote the Fact book’s conclusion below, which is a summary of some important information covered, although you should read the full fact book (a 23-page Adobe document) for detailed and statistical information that addresses questions like those above.  The full fact book is here.

“Conclusion

In many ways, Wisconsin is very much like its neighbors and like the rest of the nation. Overall, resort to the courts is increasing, but most of this increase is in the family and contract areas. Tort filings are decreasing relative to population and in absolute numbers. The portion of cases that reach trial, especially jury trial, is decreasing. When cases do get to trial, median awards are mostly lower than in the recent past.

If we look further to see how Wisconsin is distinctive, we find that even with the limitations of the data, Wisconsin has a modest amount of
litigation in comparison with our neighbors and the rest of the nation. Most non-family civil cases are filed by businesses against individual defendants; where individuals sue businesses, the awards are comparatively modest.

This relatively low resort to the courts is reflected in a lawyer population that is relatively small and slow growing. The costs imposed by the civil justice system are palpable; the benefits that it confers are less apparent – indeed to the extent that they are effective, they fade from view. The same system of justice that protects citizens, protects and facilitates businesses. Businesses use the civil justice system to enforce contracts and collect debts. The security of property rights afforded by the civil law enables them to raise capital, borrow, and extend credit. They enjoy the protections of the tort system in deterring injurious behavior by others. All of this is so routine that it easily escapes our attention. This should remind us that citizens and businesses have a shared interest in an effective civil justice system. We hope that this booklet helps provide the basis for an informed public discussion.”

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Deeply Troubling Employee Conduct in France

According to this CNN article,  some French workers responded to frustration with looming layoffs, and with executives, by holding executives hostage.

According to the workers, they have no intent to harm the executives, they just want to force them into negotiations.

The workers’ frustrations with layoffs and executives, I understand.  I sympathize with many workers immensely, and many have problems that are real and substantial.

But these workers’ means of dealing with those frustrations, and their actions, are very troubling.

Now more than ever, we all need to touch base with our humanity, our fundamental principles, and our respect for the Other- especially when we have profound disagreements and distrust with the Other.   In saying this, I am foremost mindful of my own progress that need be made in this regard, and I try to remind myself of these principles, especially when my emotions incline me to react in a petty or righteous way.  We are all serious works in progress, and these times have made many of us fixate on others’ perceived or actual misconduct rather than exploring whether we ourselves have any, even when what our body’s are doing (free from our moral oversight) is as obviously wrong as holding a boss hostage.

Consider this famous quote:

“In conflict, be fair and generous.  In governing, don’t try to control.  In work, do what you enjoy.  In family life, be completely present.”- Tao Te Ching.

How can any of these things be accomplished by holding their bosses hostage?  How are workers not embodying that same root misconduct- the same core marginalization or apathy- that they want others to stop?

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“States’ Rights,” “Judicial Activists” and Other Distractions

There is an interesting brief here, titled “The Supreme Court’s Two-Front War on the Safety Net: A Cautionary Tale for Health Care Reformers,” by attorneys Simon Lazarus and Harper Jean Tobin of the National Senior Citizens Law Center.

The premise of the brief, in a nutshell, is this:

Over the last several decades, conservative members of the Supreme Court have: (1) used Federal-laws-are-supreme theories to weaken individuals’ rights under ERISA (the law that applies to most middle-class individuals’ health insurance benefits); and (2) used States-laws-are-supreme theories to weaken individuals’ rights under Medicaid laws (which apply to most lower-class individuals’ health insurance benefits).

The article argues that the common denominator of the SC’s legal decisions is not their oft-stated pro-“States’-rights” ideology, or their oft-stated pro-federal-law-supremacy ideology (these ideologies are of course contradictory).  Rather, the denominator ideology is to favor businesses’ interests over those of individuals.

Whether or not one believes this article is accurate, I must say I like its approach of looking at what the Court does as opposed to what it says.  One of my law school professors once likened watching court decisions to watching mice run in a maze.  The chatter is not as important as where they go.

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Biggest Risk to Employers? Frivolous Suits? No. The (Expensive) Certainty of Being “Right”

As someone who represents individuals (who usually have limited resources) against companies (who usually have considerable resources), it is difficult to hear talk from the business sector about how companies are supposedly harmed by “frivolous” lawsuits, and how there is a supposed need for “tort reform.”

It is true that some employees file meritless suits, but the reality is that most would-be frivolous suits by individuals never see the light of day. This is just a matter of financial reality.

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No Pay for Boot-Up Time: More Corporate Slash-‘n-Burn

The Evil HR Lady has an interesting post here about lawsuits brought against corporations who refused to pay wages to employees for brief periods of time (@15 to 30 minutes per day) during which their computers were being booted up and/or shut down.

The Evil HR Lady (an anonymous “HR professional in a Fortune 500 Company” and well-respected blogger) makes the following excellent points about these no-pay-for-boot-up practices:

I’ll leave the legalities to the lawyers … Let’s talk about the people. Remember them? We’re supposed to lead them. This is supposed to cause HR to lead organizations.

Apparently, we were leading them to self destruction. (Where are we and why are we in this handbasket? we might ask ourselves.) Sure, employees aren’t “working” while their computers are booting up. They may even be, gasp! talking to their co-workers or drinking coffee. But, they are in the office. They can’t be somewhere else. They have to be in the building. Therefore, they are at work and should be paid as such.

But, let’s say, for argument’s sake, that [the companies] are legally right. Computer booting time can be unpaid. Just how much do you hate your people? Do you want them to leave? Do you want to drain the lifeblood out of them? Do you not understand that your best employees will find new jobs and that as a result, the quality of your workforce will gradually decline?

… You cannot run a good business without good employees. You cannot get and keep good employees without good policies. If HR is encouraging this type of policy … then they should be ashamed of themselves.

Trying to save a few bucks will result in you destroying your company. Your people are your company. Stop being stingy.

I completely agree with Evil HR Lady’s points here, which are: (1) people (employees) are a company’s greatest resource; (2) employees will resent a company’s stinginess, and will try to leave a company that is stingy; and (3) it is therefore not in a company’s financial interest to be stingy and save a few bucks in the short term, when the long-term effects (loss of many good employees) cost more.

But I will add there is another element in play here, aside from these companies’ disregard of best-practices as to finances: disregard of workers’ humanity. These companies’ wage policies treat workers as merely numbers- at best as cattle.

Do these companies ever stop to think thoughts like these: “Geez- maybe we have legal grounds to argue Joe should be paid for 7.5 hours rather than 8. After all, it does take about one half hour total time for him to boot up and shut down his computer. BUT… Joe is here 8 hours because we require him to be. Joe is a responsible person. Joe has mouths to feed at home. And hey, maybe we could argue this computer time is an arguable legal issue, but when looking at Joe as a fellow human being- as someone like me- it’s a no-brainer to pay him for 8 hours. After all, I [INSERT CORP MANAGER’S NAME] would want to be paid for 8 hours if I were in Joe’s shoes.”

Thoughts like these rarely occur in corporate America, I am convinced. Little thought is given to the human toll of slash-and-burn management and penny-pinching.

There is no Golden Rule. The Rule is Gold. Or, some transient managers’ idea of it.

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Does Your Employer’s Termination Decision “Radiate” Bad Faith?

Employees who are fired are often frustrated that employers’ stated reasons for firing the employees are not the real reasons.

“We all know you fired me because I had surgery last month, not because you really believe my form work error was an ‘intentional falsification.’ If that were the case, you would have fired the other two people who made the same error.”

When you sense you were treated unfairly, there is an immense frustration that goes along with that.

Perhaps more frustrating is the fact that it’s often hard to prove you were mistreated, and to disprove the employer’s false statements.

“Judge, the employer fired me right after my surgery. They don’t really believe I ‘intentionally falsified’ documents. Two other employees, Joe Smith and Sally Jones, made the same error and they weren’t fired…. No, I don’t have any documentation showing Joe and Sally’s errors- the employer keeps that, and they say they don’t have it…. No, Joe and Sally won’t testify on my behalf- they still work for the employer, and are scared they will lose their jobs…”

Such are the real world obstacles of pursuing employment litigation against an employer. It’s often hard to prove things. But it’s not impossible… if you stay at it. In fact, if you are in the right, it is inevitable you will find proof if you stay at it.

If you are willing to talk to all the possible witnesses out there, read all the documentation out there (sometimes thousands of pages), and work hard at working around the employer’s misstatements and barriers, you should find strong proof of the type you are looking for.

If the employer is truly acting in bad faith, they will have slipped up. Somehow, somewhere. Typically, in many places and instances.

An employer can cover-up that which is easy to be covered (e.g. discard documentation showing others’ form work errors), but an employer cannot cover up its character, or the long-term record and impressions that its values imprint on its environment over time.

If it is part of an employer’s values to treat people with medical problems unfairly, then those values will inevitably manifest themselves in many places and in many ways. More ways than can be covered or bottled up.

Initially after you are fired, you may not have much proof to go on- not much more than the strong impression that the employer is acting in bad faith.

This brings to mind a quote from William George Jordan:

Into the hands of every individual is given a marvelous power for good or evil-the silent, unconscious, unseen influence of his life. This is simply the constant radiation of what man really is, not what he pretends to be.

At the beginning of your employment dispute, you may not be aware of much, other than the strong sense that the employer “radiates” bad faith.

But if that radiation is disconcerting, you may choose to investigate further. And if you work at it hard enough, what you find may help you in litigation. Help you repair old harms, or prevent new ones.

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Three Words You Should Never Say in an Employment Dispute

The late George Carlin famously spoke about seven words you can’t say on TV.

Not one to miss a chance to co-opt, I will offer you three words you should NEVER utter in an employment dispute.

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“You’re Absolutely Right, John,” But Criticism of Obama’s Goodwill is Off the Mark

Has our country really devolved to the point where if you indicate agreement with another person about a point- about a principle- that this somehow makes you weaker than the person you are agreeing with? Does your agreement on a particular point mean that you are agreeing with your opponent whole scale, about every issue? Does your agreement mean you are conceding, whole scale, that the other person is better-qualified than you to handle an assortment of diverse issues?

These are apparently the assumptions of John McCain and his advisors, whose ad campaign now includes clips of Barack Obama at the debate, stating his agreements with McCain on various points: “You’re right, John.” “You’re absolutely right, John.”

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Link of Note: “5 Questions That Will Change Your Life”

Employees, employers, retirees and everyone else should check out this outstanding post by Professional Life Coach Tim Brownson: “5 Questions That Will Change Your Life.” Mr. Brownson arms readers with 5 questions that you should ask when facing any important life decision- I should note, these questions directly apply to any employment dispute or litigation that you are considering.

The magic questions are these:

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Surveillance and Distrust

There is an interesting article at law.com about employers who spy and use surveillance on employees who are on medical leave.

The employers’ main argument boils down to this: many employees abuse medical leave, and surveillance is needed to bust the wrongdoers, some of whom are busted while bowling or otherwise doing highly questionable things while on medical leave.

The employees’ main argument: surveillance of employees is over-intrusive, and just because an employee on medical leave is “caught” doing an everyday task (e.g. mowing the lawn) doesn’t mean the employee is faking a medical condition (e.g. faking the panic attacks that the doctor recommended a week off of work to attend to).

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