June 11, 2009 · 3:55 pm

Progessive on Progessives’ Hate Talk

When will those who are “liberals” and “progressives” (which includes me) realize that we are just as responsible as “conservatives” for the epidemic of negative and hateful communication inflicting public discourse nowadays?

Conservatives—particularly extreme-side-of-the-party folks like Rush Limbaugh and Newt Gingrich— are often criticized by progressive folks for communicating in a hateful way.

I agree any negative or hateful communications by Limbaugh and Gingrich should be open to criticism. But what is more disconcerting to me are those progressives who do not recognize when similarly negative or hateful tones inflict our own demeanor (as they easily and instinctively can) when we encounter people holding beliefs (like extreme-end-political beliefs) with which we disagree.

I should mention that I have my own body of unfortunate literature—dating back to my grade school days—where I have written things that were very negative and disparaging toward others with whom I disagreed.   Heck, this post probably goes too far.  So I am not putting myself on the high horse here by any means. Rather, I’m asking others to consider joining me on the big bus called work-in-progress.

It is one thing for a progressive to politely—and strongly— dispute an opposing viewpoint or policy, especially if it is important, empirically incorrect, or both. But it is quite another thing to needlessly make the disagreement personal, and question the other person’s motives or character.

And it is another thing still to completely avoid self-reflection on our own communication style, as if the fact that we are right on the merits (we think) provides a ticket to not only describe the merits, but to further elaborate in a righteous, condescending and/or hypocritical tone about why our opponent is deserving of condemnation, name-calling, and in some cases, violence.

Consider these excerpts of progressive authors’ communications, which are all from today’s (6-11-09) Huffington Post, a progressive blog:

(from a blog header by a progressive blog author): Death at the Holocaust Museum and the Degradation of the American Dialogue… There is no Environmental Protection Agency to measure hate pollution in national dialogue, and no mechanism in place to warn us when the poisonous rage spewed into the national consciousness by shock-jocks, poisonous television pundits, megachurch leaders, and oh-so-subtle politicians, has reached dangerously toxic levels. No, there is only the result: widows, orphans, collective grief, and an absolute refusal on the part of our loudest, coarsest voices to take any responsibility for their part in the carnage. Click here to read more….

…

(blog header by another progressive blog author): The Health Insurance Mafia Deserves a Good Screwing …

…

(blog header by another progressive blog author): Sexism Against Conservative Women Is Still Sexism

…

When progressive readers of a hugely-read and influential blog need a reminder that conservative women are just as entitled to human dignities as progressive women, it’s high time for progressives to get off our high horses real fast.

The Huffington Post, to its credit, also has a blog post today by Russell Simmons- which couldn’t be timelier- titled “Cleansing the Hatred From Within.”

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June 10, 2009 · 10:12 am

Job-Hunt Discrimination & Defeatist Thinking

I have heard many unemployed workers who are in protected classes under discrimination law (e.g. workers with disabilities, workers over 40 years old) express frustration that employers will not hire them for jobs they are qualified for, and the workers feel this is for discriminatory reasons based on their protected class (e.g. hiring employer does not want to hire workers who have disabilities, who are over 40).

There are times when these workers’ beliefs are in fact supported by evidence, such as discriminatory statements made by the employer during a job interview, the employer having hired a far less-qualified worker who was not in the protected class, etc.  So I will acknowledge, as Kurt Cobain once said, “Just because you’re paranoid doesn’t mean they aren’t after you.”   And hey, my job is representing workers who – in my view of the evidence- the employer was “after.”

However, job applicants  should know there are many times when hiring employers are not “after” you.  There are many, many non-discriminatory reasons (fair and unfair) that an employer may have for not hiring someone.  There may be 100 more qualified applicants that you don’t know about.  The employer’s owner may have wanted to hire his incompetent nephew for the job, which is unfair, but is not unlawful under WI law.

There are many times when job applicants” beliefs of discrimination are not borne of hard evidence, but instead stem from the frustration in not getting a job.  This frustration is completely understandable, as is wondering about discrimination, as discrimination does exist and is not uncommon.

However, just because discrimination is “out there” doesn’t mean it is everywhere.

Further, even if discrimination is in play for a given job opportunity, it does you no good to adopt defeatist beliefs like “They won’t hire me because of my age- heck, most employers won’t hire me because of my age.”  Even if it were true that most employers exercise age-discrimination in hiring (which is not true in my view), it doesn’t do a worker any good to stew about that, or lose motivation because of that.  Again, most of the time, discrimination is not at issue in hiring decisions.

For those occasions where there is evidence that discrimination is an issue, that is not something to defeat you, but rather an obstacle to work around.

In my view, the most common areas of discrimination in job-hiring context, which are supported by the most evidence, is discrimination based on the applicant’s disability, age, or criminal record (criminal record is basis for a protected class under Wisconsin law, although this is not the case under federal law or many other states’ laws).  Within these protected classes, people who fall on the end of the spectrum- people with the most severe disabilities and medical needs, people of increasingly advanced age, people convicted of types of crimes that are strongly shunned by the public- probably are wise to keep potential discrimination in mind as they apply for jobs.

However, such at-risk workers should not dwell on discrimination, or stew about how bad it is (even though it is).  Rather, discrimination should be thought of as something to adjust to.  If your reality is that you are dealing with a hiring employer with discriminatory beliefs (e.g. they believe that a person over 70 cannot perform the job at issue), then your task is to politely deal with that belief and try to change it (e.g. point out the rich experiences and resume that a 70-year old has that a 30-year does not).  Anticipate discriminatory concerns (e.g. that an older worker will want to retire abruptly), and affirmatively and politely address them (e.g. explain what your own goals are, and how your work life with the employer would not live out the employer’s fears).

I don’t want to get too motivational-speaker-like here, and I acknowledge that there are a whole lot of people, including many clients I’ve had, who can tell me a lot more than I can tell them about job-hunting tips.  But when it comes to concerns of discrimination, real or perceived, I can tell you firsthand that it is counterproductive to deal with those concerns by stewing about them or viewing them too negatively.  Again, discrimination is something you can deal with and you can overcome, if and when it presents itself.

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April 24, 2009 · 11:15 am

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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April 22, 2009 · 11:48 am

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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April 3, 2009 · 9:32 am

Know of Good Resources for Laid Off Workers (Esp. WI)? Please Pass Them On…

I am on the lookout for helpful resources for employees who have been laid off, particularly resources for laid off workers in my state of Wisconsin.

If anyone knows of helpful resources in the areas below, I’d be very grateful if you emailed me at mbrown@dvglawpartner.com with a description of the resource(s), and their contact information. Ultimately, I’d like to post a list on this blog and hopefully provide a centralized list of resources and information that provides assistance in many areas, above and beyond the employment law information in this blog.

I’m familiar with many fine organizations and resources already- if you know that I already know you and your organization, please know you’re already on my list- I’m just in info-collecting mode right now, and you’ll be posted!

These are the types of WI worker issues (beyond employment law) for which I’d like to learn of resources/organizations:

– Grants or financial assistance (other than unemployment), governmental or private, that are available to workers in WI or nationwide who lost jobs/have low income.

– Free or low-cost advice about health insurance options for workers, especially laid off workers in WI.

– Free or low-cost advice about Wisconsin unemployment benefits/proceedings (I know some fine attorneys across WI who provide unemployment representation, but like me they are in private practice and must charge for their services; I am looking for all non-profit legal-aid-type organizations in WI that have attorneys available for free unemployment representation from beginning to end).

– Free or low-cost advice about mortgage or housing problems, especially resources available for individuals with these problems in WI or nationwide.

– Free or low-cost advice about job-searching or vocational training for workers, especially laid off workers in WI.

– Free or low-cost advice on consumer or credit issues (repossession of car, etc.), particularly for individuals in WI.

– Free or low-cost financial planning or debt management advice, particularly for individuals in WI.

– Grants or financial assistance that are available to workers with disabilities in WI or nationwide.

– Free or low-cost advice about social security disability benefits.

– Free or low-cost advice about short term and long term disability benefits (I also know many good WI attorneys who work with these benefits and have free consults and reasonable rates; again here I’m looking for any free or low-cost resources for legal representation).

– Free or low-cost advice about Wisconsin workers compensation law (I know some fine workers comp attorneys across WI who provide free consults and who I refer to, although all are in private practice; I was wondering if anyone knew of a non-profit organization that had workers comp attorneys available for free representation from beginning to end).

– Free or low-cost advice for WI workers who have had difficulty finding employment due to their arrest or conviction records (I have represented several such workers, as have many good WI attorneys I know; again here I’m looking for any free or low-cost resources for legal representation, or for vocational assistance as well).

Again, please send any resources and their information/contact information to me at mbrown@dvglawpartner.com.  Also, I am sure that in the list above I left out several important issues- please email me with any additional issues as well.  Thank you!

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April 1, 2009 · 11:26 am

New COBRA Benefits/Help for Laid Off Workers

If you were laid off from your job, and have the chance to elect or continue COBRA benefits, please know that a new law was passed which could possibly provide you with federal subsidy money (paid via a tax credit) that would pay for 65% of several months of COBRA costs, leaving you responsible for 35% of those (usually high) costs as compared to 100%.

According to the U.S. Department of Labor (DOL), “If you were offered Federal COBRA continuation coverage as a result of an involuntary termination of employment that occurred at any time from September 1, 2008 through February 16, 2009, and you declined to take COBRA at that time, or elected COBRA and later discontinued it, you may have another opportunity to elect COBRA coverage and pay a reduced premium.”

Please know there are several specific and detailed eligibility rules to get the new COBRA subsidy, so the purpose of this post is not to tell you that the COBRA subsidy money is guaranteed for your situation.  Rather, this is a heads up that the COBRA subsidy may be available, depending on a laid off worker’s circumstances, and as such is worth you looking into.

As a first matter, you can review information about the new COBRA benefit at this web page of the Department of Labor (DOL), which describes general information about the COBRA subsidy benefit.  From this web page, you can link to more specific information, such as DOL “Fact Sheets” for employees and employers, FAQs, etc.

DOL describes specific employee-eligibility requirements (e.g. required date range that layoff occurred, required formwork, etc.) at this web page.  DOL has answers to employee FAQs here.

Once you have read information from DOL, if you think your situation is such you may be eligible  in the COBRA subsidy, you could then contact the COBRA administrator as identified by your employer (usually, the employer will list a COBRA contact/phone number in its employee handbook, mailed COBRA materials, or other sources).

If you contact the COBRA administrator, they should be familiar with the new COBRA subsidy, whether you are eligible and if it can be applied to your specific situation, what you’d need to do, what your deadline(s) are, and how payments and COBRA benefits would work.

I wish you the best of luck, and hope the COBRA subsidy is of great assistance to many laid off employees.

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March 31, 2009 · 3:02 pm

To Employees Having Trouble Reaching Employee Rights Attorneys…

As of late, with the economic downturn, many employees have tried contacting Employee Rights attorneys, including my firm and me, but have had trouble being able to speak to an attorney, or to arrange a consultation, etc.  In the past, I tried to offer brief and free phone consults for all who called, but at this time logistically I cannot speak with many people, or have consultations free of charge.

If you don’t speak to me, please know this is nothing at all personal about you or your matter.  Also, if you have troubles reaching other employee rights attorneys, please do not take that personally, either.

If you think there is any chance you may proceed with a legal action, it is important you promptly learn about your rights and any deadlines (statutes of limitations) that may apply.

If you want to speak to an employee rights attorney in Wisconsin or any other State, please consider visiting the National Employment Lawyers Association (NELA) website here, where you can do a by-State search, and get listings of employee rights attorneys’ contact information. I give you this link with the disclaimer that I am not recommending that you retain, or not retain,  any particular attorney who may be listed.  This is just a centralized resource where many employee rights attorneys’ contact information is  located.

Hopefully, you will get through to an attorney who is available and who you are comfortable with.

If anyone knows of a free attorney/legal resource(s) that is available and focused on receiving inquiries from employees with employment law concerns, particularly in WI, please let me know.  I’d be happy to forward the contact information.

Thank you very much for your inquiries, and sorry again if we don’t get to talk.

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March 31, 2009 · 10:44 am

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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March 18, 2009 · 12:03 pm

For Those in WI Considering a Do-It-Yourself Discrimination Complaint, Consider This…

On many occasions, employees have called me for advice afterthey have filed a discrimination complaint with Wisconsin’s Department of Workforce Development Equal Rights Division (ERD), or the federal Equal Employment Opportunity Commission (EEOC).

When I review their situations, I find that many of those employees should not, in my opinion, have filed their discrimination complaints.  These employees’ matters are not usually frivolous, and there is usually sound basis to think their employers treated them unfairly.  However, being treated unfairly does not itself make for a good discrimination claim.

This is one of the many important things an employment attorney could tell you before you file a discrimination complaint- that is, if you ask.  There are some other important factors that do-it-yourselfers, given their unfamiliarity with the legal process, are commonly unaware of.

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March 5, 2009 · 10:45 am

Employee Tip: Requesting Your Personnel File (Employee Records) from Your Wisconsin Employer

Wisconsin law requires that an employer provide an employee, upon his or her request, with a copy of the employee’s file, also called a “personnel file.”  A Wisconsin employer must provide the personnel file to current and former employees upon their request.

This post describes how a Wisconsin employee can go about requesting his or her personnel file.

Please note (1) this post is not referring to any State’s requirements other than Wisconsin’s: many states outside Wisconsin have their own particular personnel file requirements; and (2) this post does not provide legal advice- if you want legal advice, you should contact an attorney and discuss your specific circumstances. If you are interested in legal assistance from attorney-author Michael Brown for your Wisconsin unemployment matter, you can contact Mr. Brown and his law firm DVG Law Partner here:

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