Tag Archives: Employment Attorney Wisconsin

Don’t Play the Blame Game in Unemployment Proceedings

Workers involved in Wisconsin unemployment proceedings are often tempted to play the “blame game.”

Human instinct may tell you that it’s important to tell the unemployment interviewer or judge your opinions about what the employer did wrong.  For example, say a worker was fired because the employer said the worker was “falsifying formwork,” and the employer is challenging unemployment, claiming the worker was fired for misconduct.

If the worker is playing the “blame game,” the worker may tell the unemployment representative these types of opinions/blame-statements:

  • The employer was at fault for not training the worker how to properly complete the formwork
  • The employer was at fault for not investigating the situation properly before flying off the handle and firing the worker
  • The employer was at fault for not firing other people who did the same thing (or worse) with formwork
  • The employer/manager/etc. do much worse things themselves — they set the building on fire, etc.

Okay, I’m exaggerating, but I hope you see the point.  Playing the blame game looks bad.

While there are times in an unemployment proceeding that a worker may be asked for FACTUAL information about what the employer did wrong– e.g. an administrative judge could ask a question like  “Did the employer train you how to complete that type of formwork?”, to which a worker could respond  “No,” if that’s the truth– this is a very different scenario than the worker being given an open-floor to rattle off instances where the employer dropped the ball.

It’s understandable that, if you’ve been fired or had your unemployment challenged for reasons that seem unfair, you FEEL the employer is to blame. But if you SPEAK to an unemployment representative from that mindset, i.e. if you’re playing the blame game, that is usually a losing game for workers in unemployment proceedings.

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:

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Wage Issues? Tip #2: Know that Statutes of Limitations (Deadlines) Apply, and Are of Pressing Importance

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This post continues my series of tips, or things to consider, for workers with unpaid wages.Tip #2 is this: Know that statutes of limitations (deadlines) apply, and are of pressing importance.

Every situation that involves unpaid wages also involves a ticking clock.  That is, there are statutes of limitations, i.e. deadlines, that apply to your unpaid wages.

Many wage laws have a two (2)- year deadline, and that deadline likely only applies to a period before the complaint-filing date.  For example, Wisconsin wage law has a two-year deadline, and if a Wisconsin State wage complaint were filed in court on April 26, 2011, the worker could only seek unpaid wages for the two-year block dating back to April 26, 2009.  With each day that passes, in this example, a day’s worth of potentially recoverable unpaid wages is lost.

Please note that several laws, with several different deadlines, could apply to one situation of unpaid wages.  I have seen situations where over five (5) potential legal claims existed for one worker with unpaid wages.  Further, some laws (if you are fortunate enough they apply to you) provide for longer deadlines, ranging from three (3) to six (6) year deadlines, and in rare instances longer periods.

In sum, there can be multiple different laws, and multiple different deadlines, that can apply to one situation of unpaid wages.

Because such deadlines exist, if you have unpaid wages you should act promptly to (1) evaluate potential legal claims; (2) determine the potential claims’ merits and deadlines; and (3) if there are potential claims you feel are worth pursuing, take legal action (negotiate with the employer and/or file a legal complaint).

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Appealing WI Unemployment Initial Determination– Be Careful When Stating “Reason” in Your Appeal Form/Letter

If you are a Wisconsin worker who lost your initial determination for unemployment benefits, the next step is to submit a timely appeal.  An appeal can be submitted online here, or via a letter.  When submitting the appeal, you should be very careful to follow the instructions closely, and to submit the appeal before the deadline.  The initial determination form you received will state the deadline, and the instructions for filing an appeal via internet or letter.

One mistake I see many WI workers make, is that they will state the reasons for their appeal in too much detail, and often volunteer details that are unnecessary or even harmful for their case.

For example, I have seen some workers’ appeal letters (or internet form boxed like that above) state something like this for reasons for an appeal : “Appeal Reason: My employer lied, and targeted me for a discriminatory termination… [followed by paragraphs or pages of explanation about why the employee is in the right, the employer is in the wrong, etc.]…

Usually, statements like this are irrelevant and a bad idea.

Please consider the article information below before you write down reasons for your appeal…

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:

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Unemployment Advice– Good Times to Seek It (and Not Be Too Late)

If you are a Wisconsin worker seeking unemployment benefits, you may be considering the idea of getting an attorney versus not getting an attorney.

I am not writing this point to convince you to get an attorney like me– despite my self-interest in having people retain me, I understand that’s a decision for only you  to make.

However, I will say that the timing of when you make that decision (if you’re going to make it) is important.

Sometimes, workers will call me and tell me they are interested in retaining me, but they are at such an advanced point in unemployment proceedings and/or have had preventable problems occur that I tell them I can no longer give them my most beneficial advice and I should not be retained.

If you are considering whether or not to retain an unemployment attorney, please consider these points in time when it can be particularly helpful to get advice from an attorney:

  • Before you apply for benefits.

Most workers can apply for WI unemployment benefits and get the ball rolling without assistance from an attorney.

The State’s unemployment division has good, straight-forward website information here about filing an unemployment application.

However, on occasion a worker has discomfort or has issues (e.g. unusual circumstances and unemployment eligibility issue) that an attorney could be of assistance with.

  • Before you fill out written documentation that describes your job termination (e.g. a letter or discharge questionnaire where you describe your view of the facts about termination) and submit it to the unemployment office.

Employees often make mistakes on written formwork– e.g. write about irrelevant issues, cast blame or judgments about the employer– that contribute to a denial of benefits and make me cringe as an attorney when I read it later.

An attorney could often help with such formwork, although a worker’s errors in completing the forms are usually not fatal, and there are certainly later points the worker could win unemployment benefits and an attorney could be effective.

  • Before you have a phone interview with an unemployment representative.

The phone interview is common occasion where an employee often makes mistakes, and can benefit from legal advice.  With that said,  many workers do not seek out legal advice at this pre-interview stage, although some will read articles on the State’s unemployment website or on this blog.

Here are some articles I’ve written that are pertinent to preparing for a phone interview: Three Rules for an Unemployment Interview or Hearing , Unemployment: The Legal Decision-Maker Isn’t Your Friend (Or Enemy), and Employee Tip: Filing for Unemployment in WI; Preparing for Appeal and Hearing.

Also, there is a blog page here that lists links to all my unemployment-related blog articles.

These articles talk about factors to consider before a phone interview, but they do not provide legal advice (for which you’d need to talk to an attorney about your specific circumstances).  If you spoke to an attorney before your unemployment phone interview about your specific circumstances, an attorney could provide legal advice about which facts and issues are most important, and advice about how you should prepare for your particular phone interview.

  • Before your unemployment hearing.

If you are going to talk to an unemployment attorney, then the time to do it is definitely before you have a hearing.

Once an unemployment hearing has occurred, that event has locked into place the case’s  “record”– the recording of all the testimony and documents/exhibits for the matter.  Once this record is established at the hearing, the parties are stuck with it.  If a party loses and appeals, they must base the appeal on the record, and cannot introduce new evidence.

An attorney can be far more effective in helping a worker before the hearing, and before the record is created.  The attorney can help prepare for the hearing, and its anticipated witnesses, testimony and exhibits. An attorney can help a worker be sure that the hearing, and the record, contains the facts and evidence that are supportive of you.

It is common for me to get a call from a worker who has lost their hearing, did not like that result, and decides at that point an attorney could be of help with appealing the hearing result.  But at that point, the attorney is stuck with the record and with whatever problems occurred leading up to it.

Of all the stages above, the unemployment hearing is a critical juncture.  If you are going to talk to an attorney, best to do so before the hearing.

With that said, a worker can always contact an attorney at any time (never say never), and workers can and have won appeals of hearings that were lost.  But the more time that passes, and the more events above that come and go, the less assistance there is that an attorney could potentially offer.

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:

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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:

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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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Interesting Article re U.S. Chamber of Commerce’s Strong Use of Litigation (Despite Tort Reform View As to Individuals)

[The U.S. Chamber of Commerce] has its own multimillion dollar affiliate, the Institute for Legal Reform (ILR), whose sole mission is to restrict the ability of individuals harmed by negligent corporations to file suit.

Yet ironically, the Chamber is also one of the most aggressive litigators in Washington, D.C., appearing in hundreds of lawsuits a year. The Chamber has its own litigation arm, the National Chamber Litigation Center (NCLC), which both files its own lawsuits and enters into the lawsuits of others more than 130 times a year.

Interesting article about U.S. Chamber of Commerce’s strong use of litigation in support of corporate interests, despite its opposition to litigation by individuals (e.g. tort reform).

I’m not interested in calling the Chamber or anyone else “hypocrites.” But it is important people realize that efforts like “tort reform” (despite a broad-sounding label) have a narrower intention: to protect corporations from lawsuits by individuals alleging harm by corporations. Tort reform is NOT an effort to reduce lawsuits across the board, and is certainly not an effort to reduce lawsuits filed BY corporations. That is a right that corporations want to keep intact because it serves their interests. If you are thinking this is okay with you, from the perspective of your business, keep in mind that you are an individual too, and you need fair access to the legal system in either capacity.

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Article “Understanding Conflict Dynamics” By J. Kim Wright

This is an interesting article about conflict resolution by J. Kim Wright, posted on the American Bar Association website.

The article is geared toward lawyers.  But its advice applies well for anyone involved in any type of conflict, including those of you involved in employment disputes.

The article describes five conflict-handling- personality traits: (1) the conflict avoider; (2) the accommodating style; (3) the competing style; (4) the compromising style; and (5) the collaborating style.

Each trait is discussed, as well as its pros and cons, and good and bad situations where each trait should be considered.

One described trait jumped out at me: the competing style, a type of communication I constantly see MISUSED in the employment context.  As the article puts it:

The competing style is assertive and uncooperative—a competing individual pursues his or her own concerns at the other person’s expense. This is a power-oriented mode, in which one uses whatever power seems appropriate to win one’s own position: one’s ability to argue, one’s rank, economic sanctions. Competing might mean “standing up for your rights,” defending a position that you believe is correct, or simply trying to win.

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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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Workplace Anti-Bullying Bill Considered By Wisconsin Legislature, Part I

State Capital, Madison Wisconsin
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Wisconsin legislators are considering enactment of a bill, 2009 Assembly Bill 894, that prohibits workplace bullying by employers.

The bill seeks to prohibit abusive work environments in Wisconsin, and to allow a worker subjected to such an environment to bring a civil legal claim.

Importantly, a civil claim would be filed in a Wisconsin county court, as opposed to federal court or an administrative agency like the Wisconsin Equal Rights Division or EEOC (i.e. agencies that handle discrimination complaints).

This post summarizes the bill, its legal requirements, its potential benefits for WI employees, and potential liabilities for employers.

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