Tag Archives: Employment Attorney Wisconsin

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

Free Lunch!
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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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Filed under Employee Info/Tips - Pre-Litigation - Unpaid Wages, Employee Tip - Considering a Legal Action, Employee Tips - Unpaid Wages

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

Unemployment: The Legal Decision-Maker Isn’t Your Friend (Or Enemy)

Angry judges and steadfast court reporter
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If you are an employee seeking unemployment benefits, and you will be talking to an unemployment agency phone interviewer and/or administrative judge, please avoid a common pitfall: don’t assume that the unemployment representative will identify with you, and will be receptive to you complaining about your former employer.

An unemployment representative isn’t your friend.  That representative won’t be receptive to complaints or adjectives,  e.g they won’t want to hear you saying your former employer was “unfair,” “wrong,” “lying,” etc.  A friend or acquaintance (especially one who knows and trusts you) may well be open to accept your opinions, labels and conclusions at face value.  But again, an unemployment interviewer or judge is not your friend.  They don’t know you from Adam, and don’t know the employer from Adam.  You DON’T want their first impression about you to be “This person is a complainer who is telling me what to think without telling me the facts.”

While an unemployment interviewer or judge isn’t your friend, they are not your enemy either.  They don’t want to hear the employer hand-feed them a bunch of conclusions either.  If the employer does the things I am telling you not to– and the employer tells the unemployment representative long-winded sentences with negative labels and conclusions– then that will likely serve to your benefit, because the unemployment rep won’t view that as credible coming from the employer either.

An unemployment interviewer and judge want the facts.  As such, they will ask you factual questions: who, what, where, when, why, how.  If you respond to these factual questions with factual answers — and you discuss persons, places, statements, and actions in factual terms (“My boss stated the sky is green”) rather than opinionated terms (“My boss is a liar”)– then the unemployment representative will better appreciate your information, better be able to perform their job, and will more likely view you to be credible and reasonable.

I have covered most of the suggestions above within other posts.  But these issues are worth repeating and isolating as the topic of this post, because it is instinctive and common for an employee- claimant to treat an unemployment decision-maker as if they have a sympathetic ear that’s open to adjectives.  If you stick to the facts, and let the unemployment decision-maker decide the labels and conclusions that apply, it is more likely the issues will be decided in your favor.

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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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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Feedback about Value: Two Questions for Employment Attorneys and Others in Legal System

I have two questions for you– if you are an employment attorney, paralegal or other actor routinely involved in employment-law systems (agency investigator, judge, etc., to the extent you are willing and allowed to respond)– about how to improve value in legal representation.

The two questions for you (please respond to both) are these:

(1) What can Plaintiff’s employment attorneys do to provide their clients with better value?

(2) What can Defendant’s employment attorneys do to provide their clients with better value?

You can leave your answer by clicking the Leave A Comment link below, or by emailing me at mbrown@dvglawpartner.com.

For more information about the questions and feedback I seek, please Read More.

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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

Is This Your Job & Life? (Waking Life – Dreams for Free)

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The Super, Scary, Ultra Discretion of the Axman

  Axman-2

Say you’re a corporate employee.  You came down with a nasty virus.  Your sister and her kids passed it on to you; they later apologize for having visited when they were sick.  You get a 102 degree fever, fatigue. Doctor says you’ll wind up in bed for a week, gives you a doctor’s note.  You hadn’t missed a day of work in years before this.  So you call in sick to work, only to hear the HR rep be snide with you, question whether you’re really sick, and badger you before finally granting you the time off.  This upsets you.  So you can’t help but give her your two cents about her and the company before hanging up.

Say you’re an HR employee.  An hourly worker calls in with a “virus.”  Just happens to be a Friday.  Also happens to be the same worker Manager Jones reported as ”insubordinate” a few weeks ago, in relation to a customer complaint.  This worker has found a doctor willing to give him a note for a full week off for a flu virus.  What kind of virus lasts a full week– doesn’t the typical flu last 72 hours at most??  Worst case, his flu should be over, and he should be back to work, early next week as opposed to Friday.  That department is already short workers.  Now, you’ve got to find someone to cover, on short notice.  But you’ll have to do it.  God forbid HR question the medical necessity of this 1-week flu vacation; if so, you’d have to answer to some lawyer the employee hires, and after that have corporate chew you out.

What stinks about this scenario (besides all of it)?

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The “Principle” Matters– But A Civil Lawsuit Is Often Not the Means to Pursue It

This blog often says an employee in a dispute with an employer should pay more attention to bottom-line financial considerations (e.g. how much money an employment lawsuit could cost you vs. how much you could win) than to the “principle” of the matter (e.g. how wrong the employer’s action was).

Many folks disagree with this blog’s de-emphasis of “principle.”  And there are some very abusive bad employment situations out there one can point to as examples of “principle” being important, even when financial loss was not a factor.  I have heard from workers whose bosses subjected them to physical assault, to screaming, and to comments and acts that were so insulting they leave me scratching my head as to which direction this world is heading.

Hostile workplace situations– which often do not involve financial loss, or violate the law– are nonetheless harmful and should be addressed.

So, I must note the principle of the matter DOES matter. If your employer is harassing you, that is wrong, and that matters, regardless whether an attorney tells you that you have a good legal claim or not.

The concern this blog has with “principle” is mainly an issue of FORUM: if you address your issue via a civil lawsuit (say, a discrimination claim) this is often not the best forum in which to pursue a principle.  If the “principle” matter is accompanied by an economic loss– for example, if someone is sexually harassed, fired for complaining of sexual harassment, and loses six months of income– then the civil justice system is an appropriate place to try to recover lost money along with the principle.  But the civil system does not make an employer change its heart or apologize, and often winning parties do not even feel a sense of vindication, they just have a financial gain.

A principle– such as correcting an employer’s misconduct, ensuring other employees are not harassed or fired for wrong reasons in the future, etc.– is often better addressed by non-litigation means than by litigation.

A person looking to correct an employer’s conduct can (1) pursue informal, non-costly means to address a problem, like a heart-to-heart discussionwith a representative of the employer (hey, sometimes to your surprise there is a person of influence who will listen to you, you both have open minds, and communication works!); (2) contact your legislator and/or pursue legislation to address the problem/issue of “principle” (for example, Wisconsin could benefit from anti-bullying legislation like some other states have, which prohibit abusive conduct by employers); (3) take your labor and your talents to a better work environment, knowing there are better days ahead.

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Filed under Employee Tip - Considering a Legal Action, Philosophy - Employee Rights