January 23, 2010 · 9:21 am

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)?

Continue reading →

1 Comment

Filed under Philosophy - Employee Rights

Tagged as , , , , , ,

January 15, 2010 · 1:37 pm

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.

Reblog this post [with Zemanta]

Leave a comment

Filed under Employee Tip - Considering a Legal Action, Philosophy - Employee Rights

Tagged as , , , , , , , , ,

January 6, 2010 · 3:57 pm

Should You Drop the L- Bomb, and Tell The Employer You’re Retaining a Lawyer?

An experimental scale model of the B-25 plane ...

Image by The Library of Congress via Flickr

Are you an employee in an employment dispute, and considering whether to “drop the L-bomb,” and tell your employer you’re retaining an attorney?

Occasionally, an employee/prospective client who consults with me will tell me that he already dropped the L-bomb, and already told his employer he would be retaining a lawyer.

Often, this news was told to the employer in a huff, e.g. “If you insist on denying my medical leave, Ms. Manager, well then you’ll be hearing from my lawyer!”  Every once in awhile, an employee who I’ve never even met or communicated with will send an email to the manager he or she’s having a dispute with, and will copy my email address (found on the internet) on the email to the manager.  Thus this gives the impression I have been retained to represent someone I’d never been in contact with.  (For anyone considering using a lawyer/email address to do this, please DON’T– it’s not a good idea for many reasons).

Making L-bomb threats may feel good when one is frustrated.  However, what feels good to say or do “in the moment” of an angry employment dispute can often result in bad, long-term consequences.

In most situations, it will NOT help an employee to drop the L-bomb, and tell your employer that you’re retaining a lawyer.

In many situations, the employee’s mere mention of the L-word makes the employer even more upset, makes the employer take more adverse actions, and makes the situation worse.  Most employers are not intimidated by L-threats, because often the threats aren’t carried out.  It may be the employer’s experience that they’ve heard many L-bombs dropped, but usually a lawyer was not hired, there was no lawsuit, etc.  Or perhaps your employer anticipates you will likely get a lawyer, but the employer has planned for the worst-case L-scenarios and risks, and the employer isn’t worried about your particular legal issues.  And sometimes, an employee’s L-bomb threat appears to work, and the employer seems to back off, but only later the employee learns the L-threat just made the employer take more carefully-planned actions, without giving the employee (and her attorney) advance warnings anymore.

In sum, the L-bomb usually turns out to be less intimidating to the employer, and less effective in improving the employee’s situation, than the employee expects.

With all that said, there are certain occasions where the news of hiring a lawyer, when well-delivered, CAN make an abrupt and positive impact on an employee’s matter.  And if you’re hiring an attorney long-term, such as for litigation work, the employer must and will be told you have a lawyer at some point, in fairness to the employer.  But before you rush to deliver that news yourself, especially if you’re in a huff, you should stop to reflect.  Since you’re getting a lawyer involved, then it only makes sense you talk to that lawyer about your plans (including any planned announcement you’ve retained a lawyer) before you put those plans in action.

It’s best that the lawyer and employee/client discuss and plan in advance the announcement that the lawyer was hired.  Then that news can be delivered to the employer under carefully-considered timing and circumstances.

that the lawyer and employee/client discuss and plan in adva
Reblog this post [with Zemanta]

3 Comments

Filed under Employee Tip - Considering a Legal Action, Employee Tip - Hiring an Attorney, Employee Tip - Problems at Job

Tagged as , , , , , ,

October 6, 2009 · 3:05 pm

Quote Re Employees Fooling Themselves and Others

“It is easy to fool yourself.  It is possible to fool the people you work for.  It is more difficult to fool the people you work with.  But it is almost impossible to fool the people who work under you.” — Harry B. Thayer

Leave a comment

Filed under Uncategorized

September 14, 2009 · 10:14 pm

Things to Consider for Defamation Action Based on What a Wisconsin Employer Said

Speak no evil, hear no evil, see no evil...
Image by Joits via Flickr

Commonly, I get calls  from workers who are interested in a defamation action, based on false statements an employer made.  Defamation is a State-law claim, and I have represented persons for defamation claims under Wisconsin law.

If you are contemplating a defamation action against an employer, consider the things below.  (Please note this post does not provide legal advice; if you want legal advice, you must consult about your specific situation with an attorney who is licensed in the State in which the allegedly defamatory statements were made). Continue reading →

Leave a comment

Filed under Employee Tip - Considering a Legal Action, Employee Tip - Problems at Job

Tagged as ,

August 8, 2009 · 10:44 pm

The 5 Biggest Mistakes Employees Make In Employment Disputes

Do Not -----?
Image by Observe The Banana via Flickr

Below are the top 5 mistakes I see employees make in employment disputes.  And, I should note, in my own work experience, dating back to the junior high paper route, I have made many of these mistakes.

Please know these are general opinions, and do not give legal advice for any particular situation.  If you find yourself in an employment dispute and want legal advice, you should contact an employment attorney.

Having encountered thousands of employment disputes, here are the top 5 employee mistakes that I observe.

Continue reading →

Leave a comment

Filed under Employee Tip - Considering a Legal Action, Employee Tip - Problems at Job

Tagged as , , ,

August 2, 2009 · 9:35 pm

About to Complain to Management? Think Big Picture.

If you are gearing up to give management an earful tomorrow about all the wrongs they have been committing, please give some thought to the big picture before you head off to give your speech.  Especially if you are right, and you have stacks of documents proving you are right.

Being right is not enough.  If your employer thinks the sky is green, and fires you because you insist it is blue, you may be right but you are still fired.  And if you intend on proving (to the point of a legal judgment) that the sky is in fact blue, you have at least a few years of litigation, and a few years of significant expense, to look forward to.  

Most companies know this.   They know they hold your cards– they hold your job and income, and they can take it away.   Abruptly.  If they fire you, they know you will have no income, and that you’ll probably need income if you wish to enforce your legal rights.  They know litigation takes years to complete, and they know they will likely have much more money to pay toward litigation than an individual like you does.

Are you thinking about all these dynamics when you’re planning to confront your manager?  

Now, it’s true that if you complain about your employer’s wrongdoing, there are laws that protect against retaliation.  There are also laws that prohibit speeding and Bernie Madoff-ing, and you can see how effective those laws are as applied to reality.  Sometimes those laws are effective– sometimes wrongdoers get caught and don’t squirm out of a significant legal penalty, but too often the real-life penalties do not turn out like the wronged person would like to think.

Before you give your manager an earful, make sure you have a back-up plan if they fire you.  A real back-up plan.  A new job lined up.  A large nest egg saved up.  Advice from a competent and value-conscious attorney, telling you what potential legal claims and options you have.

But if you believe that simply being right is enough, you are rolling the dice.

Leave a comment

Filed under Employee Tip - Considering a Legal Action, Employee Tip - Problems at Job

Tagged as , , ,

August 2, 2009 · 9:22 pm

Want to Post to a Message Board About an Employer? Think Twice, and Count to Ten

If you are thinking about all your problems with your employer, and want to tell the world- or, tell Facebook, listservs, and/or public message boards- you should think twice and count to ten before posting.

It is understandable to feel highly frustrated by an employer who has underpaid you, harassed you, fired you, or otherwise treated you unfairly.

But don’t let your frustration cause you to make careless postings of public information about all the hurt and anger you feel, and all the details and opinions on your mind. Once you post specific identifying information (employer’s name) and alleged conduct, you are crossing into a threshold where negative consequences can occur.

When people are hurt, they tend to communicate in an emotional, and often counterproductive, manner.   An employee posting negative information about an employer could cross the line, and post something that the employer would claim is false or damaging to the employer’s reputation or business.

In some instances, an employer could bring a lawsuit for defamation against the poster. 

There is no use for fightin’ words in the legal world: the facts are what matter, e.g. facts about the worker’s termination.

And the facts only matter if they are communicated to the right place: to an attorney, to a legal decision-maker, or to someone else who can help.

Information that is posted on messages boards and the like is posted to everyone- to some people who could possibly help you, but also to some who could possibly hurt you.

If the employer reads negative information and details that you post about the employer, the employer could decide to make an issue, or a lawsuit, out of your post. The legal focus could shift from the core issue (unpaid wages, termination, etc.) to the issue of the comments you posted about the employer, and whether they were necessary, professional, or true.

Yes, truth is a defense to a defamation claim. But no defense is guaranteed. And even if you had a winning defense to a defamation claim, you would still have to pay for defending yourself in court, in all likelihood, if a lawsuit were filed. The best plan is to avoid the risk altogether, and not make negative message board posts in the first place.

If you want to fight an employer, make sure the fight is in the right forum (e.g. communicated via an attorney or legal proceeding, not via a message board), and fight with the facts rather than emotional adjectives or opinions. If a party is making negative comments on message boards, that party runs the risk that in later legal proceedings the party may be viewed as unprofessional or not credible, even if they are in the right.

Leave a comment

Filed under Employee Tip - Considering a Legal Action, Employee Tip - Problems at Job

Tagged as ,

June 24, 2009 · 1:55 pm

Article About Biblical Illiteracy

There are a lot of articles claiming the public is scientifically illiterate, but this article is the first I’ve seen making assertions about biblical illiteracy. (I am pretty bible-illiterate, I must confess, and I do not post this to judge anyone).

As a general matter, I believe that most of us don’t know much about most of the issues we talk about.  How could we?  There’s hardly enough time for someone to become an expert in one area of knowledge, much less for all the issues that affect us and that merit discussion.  Whenever we start feeling righteous about something we think we know well (whether the topic involve religion, politics, law, etc. etc.), it’s probably good that we remind ourselves there is so very much we don’t know.

Leave a comment

Filed under Political

Tagged as ,

June 15, 2009 · 1:33 pm

WI Employee Discrimination Complainants and Go-With-Your-Gut Settlement Offers

Of those workers in Wisconsin who file discrimination complaints without an attorney, most have no idea how much a fair settlement value would be for their case.  And how should they?  For nearly every employee complainant, this is their first legal complaint, and they have no familiarity with the legal process, with what sorts of awards can be won, or with what typical settlement ranges are.

So I can’t blame any employee for not knowing what their case could be “worth”- that’s a very difficult thing for a non-attorney to get experience with or solid information about.

However, an employee who does not have an idea of his or her case’s value will often make mistakes that cause their case not to be settled, and litigation to be prolonged (and the case possibly lost).

In my experience, employees who do not have an accurate idea of what their case is worth will tend to highly overassess the worth.  This overassessment is not usually based on the law, but rather based on the employees’ “gut” feeling of how much the employer should pay, based on how unfair the employer’s conduct was.

It is not uncommon for an employee complainant to assume that his case could be worth hundreds of thousands of dollars, or several years’ worth of severance pay, when in fact his specific case has legal and practical limitations that make his case worth far, far less than what he thinks.   (Now, there are a few employment discrimination cases out there that are in fact worth hundreds of dollars in damages, but those are the vast minority of cases).

Often, as a result, employees who have these wrong assumptions will: (1) make settlement offers that are way too high, often higher than legal damages/award maximums;  (2) cause the employer to feel the employee is completely unreasonable, and stop engaging in any further settlement talks.

You don’t want to block yourself out of a reasonable settlement offer because you are asking for the moon and don’t know it.

On the other hand (although less common), some employees will significantly underassess the value of their case.  For example, an employee may focus on the value of a discrimination claim and not know that she in fact has a potential claim for unpaid overtime wages that has strongly supportive evidence and is worth far more in damages/monies than the discrimination claim being pursued.

This is where attorneys can help.  Employment law attorneys who have worked on and evaluated many discrimination claims can provide a thorough legal analysis of what your specific case may be worth, and whether your analysis may be missing any important factors.  The attorney’s assessed value may be much lower than what you want to hear- or maybe higher, to your pleasant surprise- but either way, it’s best to get all surprises removed from the equation as early as possible.

Here is a post that discusses “Things to Consider Before Filing a Discrimination Complaint at the Wisconsin ERD or EEOC,” including information about valuing an employee’s Wisconsin discrimination case.  That post, and this one, are for general information only.  Again, if you want a specific evaluation of your own discrimination case’s value, you should consult with an employment attorney to get a complete assessment.

Add to Technorati Favorites

1 Comment

Filed under Employee Tip - Considering a Legal Action, Employee Tip - Severance & Settlement

Tagged as , , ,