Tag Archives: Employee Rights

Assumptions Kill the Cat (At Least in the Workplace)

In the workplace, curiosity does NOT, as they say, “kill the cat.”  To the contrary, if you are in a workplace dispute, curiosity is a GOOD thing.  Curiosity will cause you– before you take action– to take time to pause, gather more information, learn what is truly going on, and hopefully learn from credible sources what options you truly have.  These are good things.  Curiosity is a good instinct to have when you are in a risky situation, like a workplace dispute, and you don’t know the full ramifications of what’s going on.

Unfortunately, when I encounter workers who had had workplace disputes, and who are seeking my legal advice as a result of those disputes, all too often those workers had not had enough curiosity back while they were interacting with the employer.  That is, many workers who get into workplace disputes make assumptions and act on those assumptions.  Worse, those assumptions usually turn out to be wrong, and in fact harmful– with workers commonly losing their jobs, their unemployment benefits, their legal claims, etc.– in part or in whole due to those assumptions.

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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:

WI Unemployment - No Fees Unless You Win

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Filed under Employee Tip - Unemployment, Unemployment - Wisconsin

WI Anti-Bullying Bill, Part II: What Could it Mean for Workforces and Employers if Enacted?

Wisconsin’s anti-bullying bill, if enacted, would prohibit employers’ “abusive conduct” that cause employees “tangible harm.”

I wrote a post here that summarizes the bill.

This post (Part II) speculates what effects the bill could have, in real-life, if enacted.  (If you don’t want my opinion, stop here! :)).

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Filed under Employee Rights & Employment Law, Legislation, Resources for WI Workers

Polite Hearings, and the Distinction Between the Person and His Conduct

Dogs and Cats Living Together!

Recently I was at a legal hearing.  It was the same old drill in most respects.  Two parties opposed each other.  A boss had fired an employee.  The boss’s testimony opposed the employee’s testimony, and vice versa.  Neither side changed any beliefs when the hearing was over.

But after the hearing, a great thing happened.

After the hearing, I saw my client, the employee, approach the boss that had fired him and now testified against him.  The two men proceeded to shake hands.  Then they stood and talked for awhile.  From the two persons’ body language, I could tell that they liked and respected each other.  I also knew that neither person had changed his mind about the hearing, or about feeling right about his position on the job termination.

These two dynamics– having a big dispute with an opponent, yet liking that opponent– are not contradictory.  Not if disputes are recognized for what they are: a conflict between two views, not a conflict between two persons.

As is often written, it’s important to recognize there’s a distinction between a person and his views.  Between a person and his conduct, or a person and his misconduct, e.g. “hate the sin, love the sinner.”

It’s easy to note these distinctions, and their surface logic that it’s best to be polite and not personalize matters.  But these oft-spoken standards usually go out the window after a legal dispute starts.  More often than not, legal proceedings are made personal and taken personally.

But not this time.  Which is more than good.

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Filed under Employee Info/Tips - Litigation - Mediation, Employee Tip - Considering a Legal Action, Employee Tip - Unemployment, Unemployment - Wisconsin

Attitude Matters at Your Wisconsin Unemployment Hearing

If you are a Wisconsin employee with an unemployment hearing coming up, my post here has comprehensive information about WI unemployment hearing procedure, preparation, and issues to consider.

Stepping back from those detailed issues, there is another, more fundamental issue to consider: attitude.

Your attitude is important, and can make or break your hearing.

The most effective approach and attitude, in my opinion, are discussed as follows.

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Asked to Resign– Should You Do It?

Have you been asked to resign your job?  Told it will be “better for you” if you do?  The employer may list potential benefits of resignation, such as it being better for your job search, and helping you not have to report a discharge on your resume, etc.

And sometimes, resignation is in fact the better option for a worker.

But here’s the issue: do you really want to rely on your employer’s advice about what’s in your best interest at the point the employer is asking you to leave?

Often, for Wisconsin workers, it is a worse decision to agree to a forced resignation than to be fired.

Here are some potential disadvantages of resigning (as opposed to being fired):

It Can Hurt Unemployment.

A resignation can make it more difficult for a worker to get unemployment benefits.

It Can Hurt Potential Legal Claims.

A discrimination claim or other termination-based legal claim can lose value if the worker resigns as opposed to being fired.  An employee who is fired can assert the employer (the termination decision-maker) is clearly responsible for the job termination and the lost monies that result from that decision clearly made by the employer.  An employee who resigns leaves himself more open to argument that he (rather than the employer) was the person who caused his lost monies, thus the employer argues it should not be responsible for legal damages.

It Can Hurt Potential Severance or Settlement Negotiations.

If an employer has a signed resignation document from you– particularly if it’s also accompanied by a signed statement “admitting” wrongdoing that you didn’t really agree with but signed anyway because you felt pressured, etc.– then the employer knows that you have weakened the potential value of your legal claims.  Lesser legal claims = lesser leverage for you to negotiate severance or settlement terms with the employer.

This post is NOT saying that agreeing to resign may not have potential benefits, or may potentially help a worker, in some situations.

There are some situations where on the scale of pros and cons, it makes sense to accept a forced resignation rather than be terminated.

But in my observation, many workers do not consider and weigh all the pros and cons, and too readily accept the employer’s assertion that resignation “is in your best interest.”

If  an employer is asking you (or telling you) to leave, your best interest is not the employer’s first priority.  Consider talking to an employment attorney, or at least someone who is independent of the employer and who can speak to you about what is in your best interests without having to serve the employer’s interests as well.

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

Employment Law Case Summaries (For the Employment Lawyers Out There)

For the employment attorneys out there– this is a great blog with up-to-date employment law case summaries from all Circuits.

The blog is authored by Paul Mollica of the Chicago employment law firm Meites, Mulder, Mollica & Glink.  Paul is a great colleague for whom the term “lawyer’s lawyer” does not go far enough.

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Filed under Employment Law Resources, Philosophy - Employee Rights