Tag Archives: Considering a Legal Action

December 10, 2010 · 3:31 pm

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.Files

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.

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March 29, 2010 · 4:30 pm

Work Hours Deducted From Paycheck? Don’t Give Your Employer a Free Lunch.

Free Lunch!
Image by LexnGer via Flickr

Has your employer deducted money from your paycheck for hours that you worked?

Some employers will make mandatory deductions from hourly workers’ paychecks, without regard to time actually worked.  For example, some employers will automatically deduct one half-hour per day for a “required” lunch period, and will make this deduction without checking whether the employee was actually OFF work, and actually took a break, during that time.

Moreover, the employee’s work circumstances may have given him or her no choice but to work through lunch.  It is one thing for an employer to say an employee is free to take a lunch break, or “must” take a lunch break every day.  But that expectation of the employer does little good if there are competing expectations (e.g. busy schedules, complaining customers, limited time available, etc.) that demand an employee perform work during the designated lunch time.

Please know that if you actually WORK during the deducted periods of time (e.g. you worked during the deducted “lunch” breaks), it is NOT acceptable for the employer to reap the benefits of your work without paying you.

It is not enough for the employer to claim they told you that you were prohibited from working.

The Fair Labor Standard Act (FLSA) at 29 C.F.R. § 785.13 (Duty of management) provides the following:

“[I]t is the duty of the management to exercise its control and see that the work is not performed if it does not want it to be performed. It cannot sit back and accept the benefits without compensating for them. The mere promulgation of a rule against such work is not enough. Management has the power to enforce the rule and must make every effort to do so.”

If you are not being paid for work that you performed, you should consider having an employee rights attorney review your circumstances to see whether you should be receiving wages for the deducted periods, and whether the employer is violating wage law.  You may have good legal options to claim wages, and/or take back your free lunch.

DISCLAIMER: The information in this blog is not legal advice, nor does it establish an attorney-client relationship between you and attorney Michael Brown or his law firm.

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January 12, 2009 · 1:43 pm

Employee Tip: Document Your Job-Hunting Efforts, If You Want to Legally Challenge Your Termination

If you are an employee, had your job terminated, and are even thinking you may bring a legal claim against your former employer some day, please know that you should keep documentation relating to your job search efforts.

You may ask, “What does my job-search or new employment have to do with what my old employer did?”  The answer: for most common employment claims (e.g. a claim your termination violated discrimination law), the offending employer can be held responsible for wages you lost (or “back pay”) from the date of your termination forward.  An offending employer could try to legally reduce or eliminate the back pay it has to pay you by claiming that you didn’t look hard enough for a new job (or that you “failed to mitigate damages” in legal speak).

To avoid this potential argument that you failed to mitigate damages or look hard enough for work, you should keep documentation of your job-hunting efforts to remove any doubt that you made reasonable efforts to find work.

What Documentation You Should Keep

To keep good documentation of your job-search efforts, you should:

  • Keep or record information about every prospective employer you contact (e.g. write down the prospective employer’s name, date of call/visit, what job position you inquired about, rate of pay, etc.).
  • Save copies of job-application-related documents (e.g. job ads you reviewed, applications you sent, cover letters, resumes, rejection letters, etc.).
  • Save copies of unemployment-related documents you have (e.g. Wisconsin’s Unemployment division requires that an unemployment claimant-employee contact at least two prospective employers per week, and to keep documentation to that effect).

If you keep these forms of documentation, you will be in a better position for any future legal claim against the employer who terminated your employment.

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December 9, 2008 · 4:24 pm

Learn ALL About Your Rights Before You Give Your Employer An Earful About Them

On various occasions I have received calls from employees who became aware of various legal rights (e.g. ADA discrimination law rights) from information they found on the internet (e.g. EEOC’s website pages about ADA rights).

While it is a great thing to educate yourself, please do not make the mistake of assuming the information you learned is comprehensive, or means what you think it does.  And please, please don’t rush to your employer, and admonish them based on your internet-based understanding of your rights (e.g. “EEOC’s website tells me you’re a bad employer and violating ADA law because you won’t give me the reasonable accommodations I asked for!!”).

There are many, many problems that can arise when an employee avoids talking to an attorney and takes a do-it-yourself analysis of legal rights based on internet research or other incomplete information.

For example, you may learn from internet research that the ADA provides the right to a “reasonable accommodation” for employees who have disabilities.  What you may not have read on the internet is the fact that many federal courts have determined, for many employee-litigants, that their serious physical conditions (e.g. cancer, diabetes) did not meet ADA’s legal definition of a “disability.”  If you have cancer, a court may or may not find that your cancer may qualify as a “disability” under the ADA definition.  Only if your condition is found to be an ADA disability, would you be legally-entitled to any reasonable accommodation.  Moreover, in order to get a legal decision, you may have to expend a good deal of time (possibly years) and expense (e.g. some medical experts will charge hundreds or thousands of dollars an hour to testify whether your condition is a disability).

These are the things that an internet search usually won’t tell you, that a competent employment attorney can.  (Please note: there are some good things that could happen from you pursuing your legal rights that an employment attorney could tell you about too; but the purpose of this post is to tell you how to prevent bad things from happening).

Before you rush to admonish your employer about any legal right, you should strongly consider talking to an attorney.  Many employee rights attorneys will provide free initial consultations over the phone, and even a single consultation should educate you about some wrong assumptions you made based on internet information, and could save you from making some serious mistakes in your future conduct with respect to your employer.

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June 30, 2008 · 11:27 am

Employer Anger = College Money for Lawyers’ Kids

Employers who are angry wind up paying more in legal fees.  A lot more.  This is old news to employment attorneys, but perhaps not to the angry employers themselves.  Sidetracked by anger and the idea of chasing “principle,” they may not be listening to what their own attorneys are saying.  (I should mention that many employees I’ve run into are angry as well, and I warn them of their own risks).

On several occasions, during seminars and personal discussions, I’ve heard employer-side attorneys acknowledge that angry, “principle”-chasing employers are making financially-unwise decisions, but the attorneys claim (which is true) that it isn’t the attorneys’ fault.  On three different occasions, when I heard such an attorney acknowledge that angry employer clients tend to pay large legal fees, the attorney followed up with a statement to this effect: “but hey, I’ve got kids to put through college.”

Why do employer defense attorneys bring up their kids’ college funds when talking about employers who are angry or chasing “principle”?  Because angry employers are a treasure-trove for legal fees, that’s why.  Angry employers usually extend litigation a lot longer, and pay a lot more legal fees, than do employers who are more objective and rational about the risks they face.

Are you an angry employer?  Do you think of your anger as a source of college funds for attorneys’ kids?

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May 30, 2008 · 1:45 am

Employee Tip: Think of a Legal Claim Like An Investment

If you are an employee thinking about pursuing a legal claim (e.g. a discrimination charge against your employer), it is important you feel passion and emotion for that claim and your belief in it.   However, you should also take time to look at the claim from a different perspective.   Treat that legal claim as if it were stock or a money market account into which you were making an investment.

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