A Good “Case” Is Like a Stool: It Has These Three Legs

Workers often contact me, wanting to know if they have a good employment-law “case”.  Every situation is different, and this blog post can’t say if you have a good potential case.  However, there are some general factors that are usually present with good employment cases.

A very good attorney I know, Avi Berk, told me a good analogy for what makes a good case.

A good case, Avi said, is like a stool.  A stool has to have three legs. If even one of the legs is missing, the stool falls over and there is no case (regardless how strong the other two legs may be).

Here are the three stool-legs that support good employment law claims.

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You Seek an Employment-Law Answer: But Are You Asking the Wrong Question?

If you lost your job or were presented with a severance agreement, your mind may be riddled with employment-law related questions.

An example of a very common question: How do I request my personnel file?

What if I told you that most of the time workers ask themselves this question, it is the wrong question to be asking? That is,workers seeking an answer to this question– or seeking an employee file– are often taking the wrong steps and more often than not won’t help themselves.

There are several factors that often make requesting a personnel file a bad or unhelpful endeavor.

First, a personnel file is usually not useful for any personal or career purpose after a job has ended.

The file may be helpful if the employee later pursues a dispute or legal claim. But employers know this as well.  So employers often interpret a personnel file request as a signal the requesting employees want to sue the employers. Is this a message that you want to send? That you want to send now? If you just lost your job and have yet to receive unemployment benefits, you may not want to rile up the employer when they are in a position to contest unemployment. And if you are in fact planning legal action, you may not want to signal that to the employer at an early stage. An attorney may advise you to wait and request personnel documents later, perhaps during litigation, so the employer is not tipped off.

These issues and others rarely occur to fired workers seeking answers about personnel file requests.  But such issues are, in fact, usually more important than the common question about how to request a personnel file. (Incidentally, the answer is here).

The personnel-file request question is just one of many common questions workers ask that are often wrong questions to ask.

Before you get dead-set on pursuing a particular legal question or course of action, consider the possibility you may be asking the wrong question or going down the wrong path. Consider researching more legal information or speaking with an attorney if the issue is important or valuable enough to ensure you’re on the right path.

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Severance Negotiations? Consider the Value of an Attorney’s Letterhead

Have you been presented with a severance offer? If so, you may be planning to try to negotiate a better severance. And you may be wondering if you should mention, as leverage, potential legal rights.  After all, perhaps you found some strong potential legal claims via Google searches, via reviewing government websites, etc.

The question: So why not mention those legal rights to the employer, and use them to negotiate?

One answer: Because most legal rights that “look” correct to a given employee are in fact incorrect. (Most employees, especially smart ones, badly misdiagnose their own potential legal rights).

Another answer: Unless you have an attorney, the employer is unlikely to take your legal posturing seriously.

You are probably not experienced with lawsuits or litigation. Employers are often experienced litigants. For those that are not, they usually communicate with someone who is, i.e. a corporate employment attorney, before they present a severance offer.  So, chances are, your employer is legally- prepared. Informed.

And when an employer in that position hears an employee talking about legal rights (especially misdiagnosed legal rights), they figure the employee is blowing smoke. If the employee is serious about doing something about their rights, then he or she would have hired an attorney.

If you plan to negotiate a severance agreement, consider the value of an attorney’s letterhead.  That letterhead alone signifies you are approaching the negotiation professionally, and seriously.  When an employer sees an attorney’s letterhead and name, they take matters more seriously. Most will quickly do internet research of the attorney and his or her website.  In my case, a employer reviewing my website would see example cases I have handled in court and other legal forums, and would see I have enforced the legal rights I am talking about during severance negotiations. It’s not just theory. It’s not blowing smoke.

We lawyers obviously have more going for us than our letterhead and websites. But those things reflect some real qualities that an employee (negotiating alone) simply does not have. Legal experience. Knowledge. Credibility.

So if you plan to negotiate your severance based on perceived legal leverage, consider getting an attorney.
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Think a Lawyer Can’t Help You? How Do You Know?

Most people who in reality need legal help don’t realize they need legal help, according to an American Bar Association attorney in this video.

Only 8% of persons with a viable potential legal problem seek an attorney’s help. This means 92% of people who can use legal help don’t seek it. Wow.

In this blog, I try to inform workers of many employment-law issues and practical issues they have not otherwise considered.  But a blog can only do so much. A legal blog can address general matters, but not your matter. Only by talking with an attorney can people get reliable legal evaluations and advice for their particular matters.

Far more often than not, when someone actually takes the step of contacting me and discussing their legal issues, they learn that important assumptions they made were wrong.

Many people had a good potential legal case and had assumed they didn’t before talking it through with me. Vice versa is true for some others, who wrongly overestimated their legal rights and sometimes made harmful job decisions based on those wrong assumptions.  People who talked to me before acting on their assumptions were usually grateful they did so.

If you lost a job or income– or if it looks likely you could — that’s an important and valuable issue.  It’s worth enough to step outside your own assumptions and to consider options. Don’t assume an attorney can’t help you before you actually talk to an attorney. Especially if the attorney is affordable or gives free evaluations, which many of us do.

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Mean and Median Settlement Values of Employment Discrimination Cases

According to a study of employment discrimination settlements that occurred in 1,170 cases settled by federal magistrate judges in Chicago over a six-year period ending in 2005, “The mean settlement amount is $54,651 … and the median is $30,000.”  These numbers applied for single-employee litigants, as opposed to class-action figures, which are higher.

Perhaps the numbers above differ from your assumptions.  What should these values mean to you, if you are an employee who is considering, or has taken, legal action against an employer?   One thing they do not mean is that the numbers provide a value for your matter.  Before assuming the value of your case, you should consider many factors.  Such as:

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Infosys Class Action: 2nd Amended Complaint Filed After Motion to Dismiss Denied

As posted here, clients of the attorney-author and co-counsel are pursuing a federal class action lawsuit against Infosys Limited Inc. (“Infosys”). The lawsuit is pursued by a proposed class of job applicants and employees who challenge under Federal employment discrimination laws Infosys’ alleged policies and conduct to discriminate in favor of South Asian workers and against non-South Asian workers. For example, as alleged in the suit, Infosys expressly prefers to hire South Asians over non-South Asians and, in furtherance of its discriminatory objectives, disproportionately employs H-1B (and other visa) workers from India. As alleged, over 90% of Infosys’ 15,000 + United States employees are South Asian (predominantly Indian).

On September 30, 2014, the Court issued an Order that denied Infosys’ pending motion to dismiss (which had attempted to end the case) and the Court allowed the plaintiff workers to file a second amended class action complaint.

On October 2, 2014, the Court formally accepted, for filing, the second amended complaint.

The attorney-author of this website article, Michael Brown, is among the attorneys representing the workers pursuing the lawsuit, along with attorneys Daniel Kotchen and Michael von Klemperer of Kotchen & Low LLP and Vonda K. Vandaveer of V.K. Vandaveer, PLLC.

Please contact attorney Michael Brown at 920-757-2488 or mbrown@dvglawpartner.com if you have any information or questions about the case.

The second amended complaint’s new allegations include information from a former Infosys recruiter, indicating that he and other recruiters in Infosys’ Talent Acquisition Unit were expressly instructed by Infosys senior management to favor South Asians over non-South Asians in their recruiting efforts. The recruiter observed that over 90% of the workers Infosys hired and employed within the United States were of South Asian national origin and race (predominately Indian). The recruiter observed senior management make statements indicating Infosys had preference for South Asian hires, with one executive remarking “Americans don’t know shit.”

The second amended complaint also includes updated statistical information about Infosys’ disproportionate employment of South Asian workers (including H-1B workers from India) for large numbers of job positions within the United States.

Please click here, or scroll below, to read the Second Amended Complaint:

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Work for Wal-Mart and Have to Buy Clothes Per Their New Policy?

My law firm represents workers in employment and wage lawsuits across the U.S. and is investigating Wal-mart’s new dress code policy.  Are you a Wal-mart worker — or do you know one– who has bought clothes due to Wal-mart’s new dress code policy?

If so, and you are interested in speaking with a lawyer, please contact me, attorney Michael Brown, at 920-757-2488 or mbrown@dvglawpartner.com.

According to news reports, Wal-Mart has a new dress code policy that requires workers to wear certain clothes to work.  If workers do not have the clothes– e.g. pants, shirts, etc. of the required kind and color– they must obtain or buy them.  Wal-mart informs workers they can buy the clothes from Wal-mart.

It is possible workers may have legal rights and options.  Different States have different laws that potentially apply to clothes-purchase issues.  Legal rights depend on the circumstances, including the State a given employee works in, whether the employee has purchased clothes (and has a receipt or other proof), and other factors.

A worker interested in legal rights should not rely on his or her own assumptions or advice from people who are not employment attorneys.  If you are interested in speaking with an attorney, please feel free to contact me.

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If You Get a WI Unemployment Attorney, Do It Before Your Hearing

I am an attorney and assist Wisconsin workers with unemployment appeal issues.  Often, I get calls from workers after they have had an unemployment hearing (which they lost).

If you think you may need an attorney’s help for a WI unemployment appeal, then please consider talking to the attorney before the hearing.  Once the hearing is completed, the amount of assistance an attorney can give is limited.

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Your Job Going Downhill? Be Careful About Mentioning “Severance” First

As an attorney who often deals with employment law, it’s no surprise I’m often contacted by employees whose jobs aren’t going well.  Many employees report their employers appear to be preparing to fire them, or trying to force them to quit (by making life hell at work, etc.).

Some of these employees ask me, “Should I just ask my employer to admit they want me gone and ask if they’ll give me a severance?”

There is no catch-all legal advice if you are in this situation, as all situations are different and your particular facts could impact advice an attorney would give.  With that said, I can say it is usually not in employees’ interests to raise the topic of severance first.

Here are factors why mentioning “severance” first is often a bad thing for employees: (1) the employers can claim the employees (by mentioning severance first) had “quit”, and use that “quit” notice as basis to try to disqualify the employees from unemployment benefits; (2) the same “quit” theory can often be used to defeat legal claims from employees who pursue discharge-related legal claims (e.g. discriminatory discharge, etc.); (3) the employers may not offer any severance anyway; and/or (4) if the employer was open to offering a severance, the offer may have been better than what the worker envisioned had the worker kept quiet and waited for the employer to mention severance (and a severance offer) first.

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Know What’s “On the Table” Before Pursuing/Threatening Legal Action

Before you file a legal complaint– or threaten your opponent that you may file a legal complaint– make sure you understand what is on the table.  That is: what do you stand to win?  What do you stand to lose?  The answers, in fact, usually require significant legal analysis and help from a lawyer.  But people too often guess at answers, and usually guess wrong.

In the film No Country for Old Men, the fellow pictured below was offered a coin toss and had memorably (and understandably) questioned what it was he stood to win or lose .

NoCountryPuttinUp

Do you know what you stand to win or lose pursuing a legal claim?  Really?  Chances are, you don’t have as much on the line as the guy in the movie (or at least I sure hope not).  But you may be making big gambles– or missing out on big opportunities– based on incorrect assumptions.

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