Appealing WI Unemployment Initial Determination– Be Careful When Stating “Reason” in Your Appeal Form/Letter
If you are a Wisconsin worker who lost your initial determination for unemployment benefits, the next step is to submit a timely appeal. An appeal can be submitted online here, or via a letter. When submitting the appeal, you should be very careful to follow the instructions closely, and to submit the appeal before the deadline. The initial determination form you received will state the deadline, and the instructions for filing an appeal via internet or letter.
One mistake I see many WI workers make, is that they will state the reasons for their appeal in too much detail, and often volunteer details that are unnecessary or even harmful for their case.
For example, I have seen some workers’ appeal letters (or internet form boxed like that above) state something like this for reasons for an appeal : “Appeal Reason: My employer lied, and targeted me for a discriminatory termination… [followed by paragraphs or pages of explanation about why the employee is in the right, the employer is in the wrong, etc.]…”
Usually, statements like this are irrelevant and a bad idea.
Please consider the article information below before you write down reasons for your appeal…
Please note this post does not provide legal advice- if you want legal advice, you must talk to an attorney about your specific situation. If you are interested in legal assistance from attorney-author Michael Brown or his law firm DVG Law Partner for your Wisconsin unemployment matter, please contact us here:
Filed under Unemployment - Wisconsin
Unemployment Advice– Good Times to Seek It (and Not Be Too Late)
If you are a Wisconsin worker seeking unemployment benefits, you may be considering the idea of getting an attorney versus not getting an attorney.
I am not writing this point to convince you to get an attorney like me– despite my self-interest in having people retain me, I understand that’s a decision for only you to make.
However, I will say that the timing of when you make that decision (if you’re going to make it) is important.
Sometimes, workers will call me and tell me they are interested in retaining me, but they are at such an advanced point in unemployment proceedings and/or have had preventable problems occur that I tell them I can no longer give them my most beneficial advice and I should not be retained.
If you are considering whether or not to retain an unemployment attorney, please consider these points in time when it can be particularly helpful to get advice from an attorney:
- Before you apply for benefits.
Most workers can apply for WI unemployment benefits and get the ball rolling without assistance from an attorney.
The State’s unemployment division has good, straight-forward website information here about filing an unemployment application.
However, on occasion a worker has discomfort or has issues (e.g. unusual circumstances and unemployment eligibility issue) that an attorney could be of assistance with.
- Before you fill out written documentation that describes your job termination (e.g. a letter or discharge questionnaire where you describe your view of the facts about termination) and submit it to the unemployment office.
Employees often make mistakes on written formwork– e.g. write about irrelevant issues, cast blame or judgments about the employer– that contribute to a denial of benefits and make me cringe as an attorney when I read it later.
An attorney could often help with such formwork, although a worker’s errors in completing the forms are usually not fatal, and there are certainly later points the worker could win unemployment benefits and an attorney could be effective.
- Before you have a phone interview with an unemployment representative.
The phone interview is common occasion where an employee often makes mistakes, and can benefit from legal advice. With that said, many workers do not seek out legal advice at this pre-interview stage, although some will read articles on the State’s unemployment website or on this blog.
Here are some articles I’ve written that are pertinent to preparing for a phone interview: Three Rules for an Unemployment Interview or Hearing , Unemployment: The Legal Decision-Maker Isn’t Your Friend (Or Enemy), and Employee Tip: Filing for Unemployment in WI; Preparing for Appeal and Hearing.
Also, there is a blog page here that lists links to all my unemployment-related blog articles.
These articles talk about factors to consider before a phone interview, but they do not provide legal advice (for which you’d need to talk to an attorney about your specific circumstances). If you spoke to an attorney before your unemployment phone interview about your specific circumstances, an attorney could provide legal advice about which facts and issues are most important, and advice about how you should prepare for your particular phone interview.
- Before your unemployment hearing.
If you are going to talk to an unemployment attorney, then the time to do it is definitely before you have a hearing.
Once an unemployment hearing has occurred, that event has locked into place the case’s “record”– the recording of all the testimony and documents/exhibits for the matter. Once this record is established at the hearing, the parties are stuck with it. If a party loses and appeals, they must base the appeal on the record, and cannot introduce new evidence.
An attorney can be far more effective in helping a worker before the hearing, and before the record is created. The attorney can help prepare for the hearing, and its anticipated witnesses, testimony and exhibits. An attorney can help a worker be sure that the hearing, and the record, contains the facts and evidence that are supportive of you.
It is common for me to get a call from a worker who has lost their hearing, did not like that result, and decides at that point an attorney could be of help with appealing the hearing result. But at that point, the attorney is stuck with the record and with whatever problems occurred leading up to it.
Of all the stages above, the unemployment hearing is a critical juncture. If you are going to talk to an attorney, best to do so before the hearing.
With that said, a worker can always contact an attorney at any time (never say never), and workers can and have won appeals of hearings that were lost. But the more time that passes, and the more events above that come and go, the less assistance there is that an attorney could potentially offer.
Please note this post does not provide legal advice- if you want legal advice, you must talk to an attorney about your specific situation. If you are interested in legal assistance from attorney-author Michael Brown or his law firm DVG Law Partner for your Wisconsin unemployment matter, please contact us here:
Filed under Unemployment - Wisconsin
Three Rules for an Unemployment Interview or Hearing
If you are a Wisconsin worker with an unemployment application pending, you may have a phone interview or hearing coming up. If you do, you will soon be answering questions from a legal authority in the unemployment process.
Before you have a phone interview or hearing– that is, before you start answering questions as a witness– please consider these Three Rules.
Rule 1: Listen to each question, very carefully.
Rule 2: Answer ONLY the question you were asked (without volunteering extra information, explaining yourself, or telling your “side”).
Rule 3: Be truthful.
These rules sound simple, right? They are easy enough to understand. But it can be very hard to follow
them all. For example, being truthful (#3) involves not lying. Should be simple enough not to lie. But if you volunteer extra information you weren’t asked for (violating #2), the legal authority may think you are lying or being evasive, because you’re not giving the information requested.
Once you are in the moment, and engaged in the question-and-answering process, your human instinct will urge you to violate the three rules.
Here’s an example of how many workers fail to follow the rules (I probably would too, if I didn’t have the benefit of repeat experience with the process).
PHONE INTERVIEWER (or JUDGE): What did the employer tell you was the reason for your termination?
EMPLOYEE: They told me I yelled and talked back to my boss and that I was “insubordinate.” That wasn’t true. I have never talked back to my boss or so much as raised my voice. HR never even asked me for my side of what happened. If HR had just talked to me and my coworkers, they would have known I never talked back to anyone. My boss was the one constantly harassing people; he yelled at lots of people.
Notice this is the kind of response that human instinct will WANT to say. But the answer above does NOT respond directly to the question presented. This kind of answer– no matter how true its components may be– is the kind of answer that makes witnesses lose credibility (and at times, their unemployment benefits) in the determination of the questioning unemployment official.
An employee following the 3 rules would realize that the first sentence of the answer above (“They told me… I was ‘insubordinate'”) is the only information needed to answer the question that was asked (“What did the employer tell you…”).
Employees commonly get into trouble by hearing the question as they WANT to hear it, e.g. hearing the unemployment official’s question above as if it were this: “What did the employer tell you, and explain to me why the employer is wrong and you’re right?”
All that extra stuff– the need to give an explanation of your “side”– is what your instincts will want to spill out of you. You’ve got to keep a lid on that. The easiest way to keep the lid on is to listen carefully to the question (rule #1). If you listen to exactly what is asked of you, then it’s easier to precisely answer only what’s asked (rule #2) and to be truthful (#3).
Thus the Three Rules. If you’re going to be an attentive and effective witness, then it’s critical that you listen to each question carefully, respond with exactly the information you’re asked for (and no more), and respond truthfully.
And telling the truth, by the way, is more than just not lying.
In a way, the response above is not truthful, even if its volunteered/excessive facts (e.g. “My boss was the one constantly harassing people”) are true and supported by evidence. While it’s not a “lie” to volunteer your side of the true facts, it’s nonetheless not being straight-forward. That is, telling your story– when the question did not ASK you to– is a way of being evasive and defensive.
Much of my unemployment legal work involves helping employees internalize the Three Rules. It is common for employees to violate the rules, left and right, and often it takes me a good deal of thought and practice until employees internalize the rules and adopt the function of a witness. Employees often tell me, “yeah, yeah, I understand the rules, let’s move on”– but then we practice with some questions, and once on the hot seat, the employees realize that the Three Rules aren’t so easy to follow in real-time.
There are of course other important things to know and prepare for before you attend a phone interview and hearing. It’s important to know which facts and issues are important, which ones are not, and which ones may annoy your questioner or even lose your benefits on the spot.
But the Three Rules come into play before you even think about the facts of what occurred. The Three Rules are a matter of discipline, and understanding your place as an employee-claimant within the unemployment system. Your role is that of a witness. And the essential function of a witness is to listen to each question carefully, and to answer it precisely and truthfully. If you do not properly understand and accept that role, then you could run into problems with the unemployment process, regardless of the merits and factual circumstances of how your job ended.
Please note this post does not provide legal advice- if you want legal advice, you must talk to an attorney about your specific situation. If you are interested in legal assistance from attorney-author Michael Brown or his law firm DVG Law Partner for your Wisconsin unemployment matter, please contact us here:
Contingency Attorneys for Discrimination Claims
Contingency Attorneys
A contingency fee is a type of attorney-fee arrangement where attorney fees are only paid if you win or settle your matter, in which case a percentage of the award (usually between 33.33%-50%) is paid to the attorney. A flat fee is a type of attorney fee where a fixed (certain) amount is charged for the legal services at issue. Sometimes a contingency fee will be mixed with a flat fee. An hourly fee is charged by the hour, and rates commonly range between $150/hour to $500 or more per hour. Hourly legal fees have a total value that is uncertain. For example, if an attorney charges $300/hour, the total amount of legal fees will depend on the number of hours of work that are ultimately done (e.g. $3,000 for 10 hours of work, $4,500 for 15 hours, etc.).
List of Contingency Attorneys In Wisconsin
Below are some WI employee-rights attorneys who represent many workers on contingency for discrimination matters. Whether they would agree to do so for you is up to them and you, and depends on the circumstances. I believe most of these attorneys will represent workers from anywhere in Wisconsin. (While you may prefer to hire an attorney located in your city, please know that is usually not necessary in my observation).
Thomas C. Lenz, Esq.
First, Albrecht & Blondis, S.C.
158 N. Broadway, Suite 600
Milwaukee, WI 53202
Phone: (414) 271-1972
Facsimile: (414) 271-1511
Email: tlenz@fabattorneys.com
Website: www.fabattorneys.com
Attorney Brenda Lewison
Law Office of Arthur Heitzer
633 W. Wisconsin Ave., Suite 1410
Milwaukee, WI 53203-1920
(414) 273-1040
Atty. Jeff Scott Olson
The Jeff Scott Olson Law Firm SC
131 W Wilson St Ste 1200
Madison, WI 53703-3225
Phone: (608) 283-6001
Fax: (608) 283-0945
Email: jsolson@scofflaw.com
Atty. Sandra Graf Radtke
Gillick, Wicht, Gillick & Graf
6300 W Bluemound Rd
Milwaukee, WI 53213-4147
Phone: (414) 257-2667
Fax: (414) 257-9297
Email: sradtke@gillickwicht.com
Atty. Richard F. Rice
Fox & Fox
rrice@foxquick.com
Madison Office Milwaukee Office Chicago Office
124 West Broadway 735 West Wisconsin Avenue 105 West Madison St.
Monona, WI 53716 12th Floor Suite 2200
(608)258-9588 x307[phone] Milwaukee, WI 53233 Chicago, Illinois 60602
(608)258-9105 [fax] (414)326-3260[phone] (312)602-3203[phone]
(414)224-1411 [fax]
Atty. Rebecca Lynn Salawdeh
Salawdeh Law Office LLC
7119 W North Ave
Milwaukee, WI 53213-1810
Phone: (414) 455-0117
Fax: (414) 918-4517
Email: rebecca@salawdehlaw.com
Filed under Employment Law Resources
Want to Negotiate With an Employer You Distrust? Consider Talking to a Trusted Third Party First
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.
Filed under Uncategorized
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.
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.
Link to Article By Richard J. Mouw: Conviction and Civility in American Public Discourse
Richard Mouw’s article describes, very well, what is arguably problem #1 in America: negative communication. Without positive communication, no problem can be effectively discussed or addressed. An excerpt:
When my book on the subject, Uncommon Decency: Christian Civility in an Uncivil World, appeared in 1992, I was interviewed frequently by journalists on the subject of civility. At first I was surprised by how often they wanted to talk, not about the “big” incivilities of tribal and international hostilities, but about more mundane displays of anger: road rage on California freeways and rudeness in the aisles of supermarkets. But they were onto something. These less global manifestations of incivility have increasingly become preoccupations for all of us. Kids in middle-class schools are driven to the point of suicide because of bullying by their peers. Campus gossip sites spread salacious stories about students who are identified by name. Bloggers sit daily at their keyboards to spew forth hatred. “Experts” shout at each other on our 24/7 cable news channels.
Filed under Uncategorized
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.”).
Got Text or Voice Messages From Your Harasser(s) or Employer? Save Them to a Secure Place ASAP.
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.
Filed under Uncategorized
WI Employee Rights Lawyer: Severance, Wages, Job Termination, Discrimination 