Tag Archives: Employee Rights

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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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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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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No Pay for Boot-Up Time: More Corporate Slash-‘n-Burn

The Evil HR Lady has an interesting post here about lawsuits brought against corporations who refused to pay wages to employees for brief periods of time (@15 to 30 minutes per day) during which their computers were being booted up and/or shut down.

The Evil HR Lady (an anonymous “HR professional in a Fortune 500 Company” and well-respected blogger) makes the following excellent points about these no-pay-for-boot-up practices:

I’ll leave the legalities to the lawyers … Let’s talk about the people. Remember them? We’re supposed to lead them. This is supposed to cause HR to lead organizations.

Apparently, we were leading them to self destruction. (Where are we and why are we in this handbasket? we might ask ourselves.) Sure, employees aren’t “working” while their computers are booting up. They may even be, gasp! talking to their co-workers or drinking coffee. But, they are in the office. They can’t be somewhere else. They have to be in the building. Therefore, they are at work and should be paid as such.

But, let’s say, for argument’s sake, that [the companies] are legally right. Computer booting time can be unpaid. Just how much do you hate your people? Do you want them to leave? Do you want to drain the lifeblood out of them? Do you not understand that your best employees will find new jobs and that as a result, the quality of your workforce will gradually decline?

… You cannot run a good business without good employees. You cannot get and keep good employees without good policies. If HR is encouraging this type of policy … then they should be ashamed of themselves.

Trying to save a few bucks will result in you destroying your company. Your people are your company. Stop being stingy.

I completely agree with Evil HR Lady’s points here, which are: (1) people (employees) are a company’s greatest resource; (2) employees will resent a company’s stinginess, and will try to leave a company that is stingy; and (3) it is therefore not in a company’s financial interest to be stingy and save a few bucks in the short term, when the long-term effects (loss of many good employees) cost more.

But I will add there is another element in play here, aside from these companies’ disregard of best-practices as to finances: disregard of workers’ humanity. These companies’ wage policies treat workers as merely numbers- at best as cattle.

Do these companies ever stop to think thoughts like these: “Geez- maybe we have legal grounds to argue Joe should be paid for 7.5 hours rather than 8. After all, it does take about one half hour total time for him to boot up and shut down his computer. BUT… Joe is here 8 hours because we require him to be. Joe is a responsible person. Joe has mouths to feed at home. And hey, maybe we could argue this computer time is an arguable legal issue, but when looking at Joe as a fellow human being- as someone like me- it’s a no-brainer to pay him for 8 hours. After all, I [INSERT CORP MANAGER’S NAME] would want to be paid for 8 hours if I were in Joe’s shoes.”

Thoughts like these rarely occur in corporate America, I am convinced. Little thought is given to the human toll of slash-and-burn management and penny-pinching.

There is no Golden Rule. The Rule is Gold. Or, some transient managers’ idea of it.

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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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5 Reasons Why an H-1B Employer Would Want to Reach Settlement With An Underpaid Employee

 

 

If your H-1B employer (or former H-1B employer) underpaid your wages, you may be interested in complaining to the employer or pursuing legal action, but worried about what may happen to you. You may be worried that, if you complain about unpaid wages, you may lose your H-1B status, and be subject to deportation.

These are realistic concerns. Pursuing your legal rights indeed is a serious and delicate matter. You should thoroughly educate yourself on your legal rights and options before you take action or assume risks.

However, you should know that an underpaying H-1B employer has its own risks to worry about. The legal and financial consequences that an employer faces if found to have underpaid an H-1B employee’s wages could drive the employer out of business.

Rather than face the risks that result from a worker filing a legal complaint, fraudulent H-1B employers will often prefer to reach a settlement with an underpaid H-1B worker.

Fraudulent H-1B employers may well agree to a settlement that: (a) pays you your unpaid wages (and possibly more, given the possibility of legal penalty monies in addition to wages); (b) fixes any immigration-status problems (e.g. makes sure you receive valid payments and paystubs needed for H-1B transfer); and (c) agrees not to retaliate against you.

Below are 5 reasons why an underpaying H-1B employer should agree to such a settlement.

(Please note: This article is NOT advising you to demand settlement from your employer, to threaten your employer with legal action, or to take legal action. Before trying to negotiate a settlement or filing a legal complaint on your own, it is strongly advised that you talk to an attorney, such as an H-1B rights attorney and immigration attorney, about your own specific circumstances and legal options).

 

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H-1B Workers’ Fears vs. Fighting for Your Rights

Fear is the biggest factor that holds many H-1B workers back from approaching their employer (or former employer), and asking for their underpaid wages, or from taking legal action.

H-1B workers do in fact have several options and legal rights. Some of those rights are very powerful.

However, those rights will not do you any good unless you are willing to pursue them. To fight to enforce your rights. To make educated and bold decisions, and stick to them. To know that, in order to achieve what you want to, you will have to take on some risks.

A fraudulent H-1B employer has many more risks than an underpaid H-1B worker does. Many H-1B employers would be willing to discuss an amicable settlement with an underpaid H-1B worker rather than deal with a legal action, and face the potentially severe liabilities. Yet the employers don’t seem to worry nearly as much as do the H-1B employees.

If you are an H-1B worker, and are too fearful to talk to your employer about unpaid wages, I can understand where you’re coming from, and I could never judge you for feeling that way.

However, I do ask that you not contact me, asking me to spend hours of time discussing legal rights that you know you’d never pursue anyway, because of your fears. Only if it’s possible you could commit to assuming some risks and pursuing your rights could an attorney possibly help you.

If you don’t take action, you may well face risks (e.g. an employer’s underpayments could be hurting your immigration status). If you do take action, you may well face risks (e.g. the employer may threaten deportation). You’ve got to deal with your situation.

In dealing with your situation: (1) don’t let fear control you; (2) know the risks are there, and that you must deal with them; (3) educate yourself about your legal rights and options; (4) learn what options present the lowest risks and highest potential benefits; (5) make an educated decision; and (6) don’t second-guess yourself. Only if you are willing to overcome your fear and accept risks would you have any chance to obtain what you’re owed, and to improve your immigration status and options.

Additional Information

For more H-1B employee rights information, please visit the blog www.h1blegalrights.com.

To learn more about H-1B rights and options, please see these posts:

For information about H-1B Rights & Immigration Rights Attorneys Michael F. Brown and Vonda K. Vandaveer, please visit here.

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Does Your Employer’s Termination Decision “Radiate” Bad Faith?

Employees who are fired are often frustrated that employers’ stated reasons for firing the employees are not the real reasons.

“We all know you fired me because I had surgery last month, not because you really believe my form work error was an ‘intentional falsification.’ If that were the case, you would have fired the other two people who made the same error.”

When you sense you were treated unfairly, there is an immense frustration that goes along with that.

Perhaps more frustrating is the fact that it’s often hard to prove you were mistreated, and to disprove the employer’s false statements.

“Judge, the employer fired me right after my surgery. They don’t really believe I ‘intentionally falsified’ documents. Two other employees, Joe Smith and Sally Jones, made the same error and they weren’t fired…. No, I don’t have any documentation showing Joe and Sally’s errors- the employer keeps that, and they say they don’t have it…. No, Joe and Sally won’t testify on my behalf- they still work for the employer, and are scared they will lose their jobs…”

Such are the real world obstacles of pursuing employment litigation against an employer. It’s often hard to prove things. But it’s not impossible… if you stay at it. In fact, if you are in the right, it is inevitable you will find proof if you stay at it.

If you are willing to talk to all the possible witnesses out there, read all the documentation out there (sometimes thousands of pages), and work hard at working around the employer’s misstatements and barriers, you should find strong proof of the type you are looking for.

If the employer is truly acting in bad faith, they will have slipped up. Somehow, somewhere. Typically, in many places and instances.

An employer can cover-up that which is easy to be covered (e.g. discard documentation showing others’ form work errors), but an employer cannot cover up its character, or the long-term record and impressions that its values imprint on its environment over time.

If it is part of an employer’s values to treat people with medical problems unfairly, then those values will inevitably manifest themselves in many places and in many ways. More ways than can be covered or bottled up.

Initially after you are fired, you may not have much proof to go on- not much more than the strong impression that the employer is acting in bad faith.

This brings to mind a quote from William George Jordan:

Into the hands of every individual is given a marvelous power for good or evil-the silent, unconscious, unseen influence of his life. This is simply the constant radiation of what man really is, not what he pretends to be.

At the beginning of your employment dispute, you may not be aware of much, other than the strong sense that the employer “radiates” bad faith.

But if that radiation is disconcerting, you may choose to investigate further. And if you work at it hard enough, what you find may help you in litigation. Help you repair old harms, or prevent new ones.

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FAQS- If You Were Underpaid as an H-1B Worker and Are No Longer in the U.S.

If you were underpaid as an H-1B, and are now outside the U.S., below are some frequently asked questions and answers.

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Three Words You Should Never Say in an Employment Dispute

The late George Carlin famously spoke about seven words you can’t say on TV.

Not one to miss a chance to co-opt, I will offer you three words you should NEVER utter in an employment dispute.

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Filed under Employee Tip - Considering a Legal Action, Employee Tip - Problems at Job, Philosophy - Employee Rights, Unemployment - Wisconsin