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As an employee rights and visa worker rights attorney, I’ve dealt with many issues related to unpaid wages.

I will post a series of blog articles with tips, or things to consider, for workers who have unpaid wages.

Tip #1 is the following: Do not make assumptions about wage situations that an attorney has not advised you to make.

Here are some assumptions I’ve commonly observed workers make, and that are commonly wrong:

• “I know ALL the laws and deadlines (or statutes of limitations) that apply to my unpaid wages or employment matter.”

There are often several laws, with several deadlines, that apply to one unpaid wage scenario.  I have seen certain unpaid wage scenarios for which more than five legal theories (different laws and claims) could apply to one given scenario.  Please do not assume that your understanding of the laws that apply to your situation– no matter how extensive your own legal or internet research may have been– is complete.

Often, workers assume that they are limited by particular laws and deadlines, but are not aware of other laws and deadlines that provide different options.  An experienced attorney who has repeated experience with given wage situations will likely be aware of more laws, more deadline periods, and more options than will a worker who does not have repeated experience with the issue at hand.

• “I can’t get my unpaid wages, based on my understanding/interpretation of the law.”

It is common for a worker who senses he or she is underpaid to assume that the law does not require payment for those underpaid wages.

For example, it is common for a worker who is paid on a salary basis, and who works overtime (over 40 weekly hours), to assume that that the law does not entitle him or her to overtime pay. 

However, contrary to this common assumption (that salaried workers do not get overtime pay), overtime laws allow for some situations where salaried workers are required to receive overtime pay.

The common assumptions above are just the tip of the iceberg.  I run into many workers who made assumptions about unpaid wages that turned out to be wrong, and turned out to limit or block the worker’s options.

It is fine for a worker, of course, to research wage laws and potential options.  However, if a worker takes action (or fails to take action) based on assumptions about legal issues, the worker is likely taking on risks.  Again, an attorney can help clarify options, risks, and potential benefits or problems with a course of action or inaction.

Obviously, it serves my interests as an attorney to tell workers to contact an attorney, and it’s fair for you to take that into account.  But my message is broader than that– contact any employee rights attorney familiar with wage rights before you take action or give up on a potential action.  And it’s fine of course that you limit your contact to an attorney you are comfortable with, and who offers terms of consultation or representation that are comfortable to you, including affordable and/or contingency terms.

It’s been too long since a blog post about H-1B rights issues.  (So you know, during the downtime, the attorney-author has continued to represent H-1B workers in legal matters).

Part of the reason for the H-1B-post downtime is that several issues facing H-1B workers recur over and over– for example, I don’t know that you’d want yet another article about benching and nonproductive-time wages.

So, I’ll ask you H-1B workers out there what issues that you want to read about: are there any H-1B employee-rights topics or issues you’d like covered on this blog?

Posted via email from Mike Brown’s posterous

You may be in a situation where (1) an employer has violated your trust in the past, and you are uncomfortable with that employer; but (2) you still need something from that employer– their payment of overdue wages, their approval of a pending administrative request, etc.

Often, I see employees in this situation– that is, employees who need something from an employer who wronged them– try to negotiate directly with the employer, without the assistance of an attorney or other advocate (e.g. a union representative).

You may be inclined to do this: to try on your own to “work something out” with an employer you distrust.  You may realize you hadn’t been successful in the past, but this time, you may think, the employer will realize you are serious.  Perhaps you feel you have new leverage or demands.  Maybe you recently found legal information on the internet, and you are prepared to threaten a lawsuit if the employer does not treat you fairly like you ask.

Before you talk to the employer further, or make any threats of legal action, please consider doing this: (1) take a step back, to review the big picture; and (2) talk to a trusted third party (whether it’s a lawyer, a union leader, a family friend who is experienced in these employment matters, etc.).

A knowledgeable third party often has a broader perspective on the big picture than the mistreated employee does.

For one thing, a third party is not as emotionally-involved with your matter, and as such their eyes are open to some obvious things that you may not want to see, but need to.  A third party may give you the wake-up call you need, and say, “Hey, do you think your third attempt on your own to get this employer to act fair is going to work out better than the first two times?”  Sometimes it takes someone else to state the obvious before we’re open to believing it.  A third party can give a reality check.

Also, a knowledgeable third party, such as an employment attorney, may have repeated experience dealing with the same type of scenario you’re dealing with. From that experience, they could tell you why the action you’re contemplating– for example, maybe you want to complain to management about a particular wage issue– may be a bad idea or a good idea.

An experienced third party will know from experience which approaches are likely to work, and which aren’t.  As an employment attorney, I have had hundreds of communications involving employers and unpaid wages.  An employee could learn from my experiences what types of communications are most likely to have good outcomes.  Left on your own, you may try a form of communication that– while it may seem instinctive or logical– is a type of communication that I know has failed time and again for dozens of employees.

Generally speaking, employees are better off when they talk to a third party before they try to negotiate with an unfair employer, rather than after.   When an employer controls something that is very important to you– like wage money you need for rent– it is all the more important that before communicating with the employer, you prepare carefully, and seek input from a trusted adviser who has dealt with similar situations before.

If you have received text and/or voice messages from someone who has mistreated you– for example, a harassing text message, or a voice message about your job being terminated, from your boss– you should save those messages to a secure place ASAP.  Those messages may serve as legal evidence later, so you want to be sure they are saved.

If you don’t take quick action to save such messages, and leave them where they are, they may be erased by your cell phone.  They may well be erased automatically and quickly (maybe within days).  Further, they may be erased from a cell phone company’s records as well, leaving no trace of the text or voice mssages unless you save them yourself.  Don’t assume a text or voice message will remain where it is for any amount of time.

To save such a message permanently, your cell phone should allow you a menu-option that lets you save the message into a secure place, e.g. a folder on your cell phone that is not automatically deleted. There likely is also a menu option that lets you forward the message (e.g. under a “Forwarded As Email” menu option) and send it to a place (e.g. to a personal email account) where you know the message will not be erased automatically.  Take all such steps/menu options available.  This will help ensure you’ve got the information permanently and safely retained.

The bottom line is this: if you get an important text or voice message, take quick action to save or forward it to a place you know is safe, secure and permanent.  If you need help doing this, review your cell phone user guide, or contact a tech-savvy person (e.g. a cell phone co. representative) to make sure you will save the information appropriately.

The Wisconsin Legislature has added two forms of prohibited discrimination to Wisconsin employment law, which concern religious and political communications.

Now, a Wisconsin employer must not discriminate against an employee for:

• declining to attend a meeting about religious matters
• declining to participate in any communication about religious matters
• declining to attend a meeting about political matters; or
• declining to participate in any communication about political matters.

Under Section 111.321of the Wisconsin Fair Employment Act (WFEA) (see p. 11 of the .pdf version of WFEA), titled “Prohibited bases of discrimination,” a WI employer is now prohibited from discriminating against an employee for “declining to attend a meeting or to participate in any communication about religious matters or political matters.”

This new phrase/amendment to WFEA was completed by an Act of the Wisconsin legislature, and took effect on May 27, 2010. 

An employer’s discriminating actions on or after May 27, 2010, that are based on political and religious issues above, are potentially actionable as discrimination law claims.