http://www.wisbar.org/res/capp/2011/2010ap001902.htm , Town of Rome v. LIRC, 2010AP001902 09-08-11

According to the decision, the employee’s complaint about discrimination, while not specific, was sufficient to protect her under WFEA’s anti-retaliation law.

The case also supports WFEA’s in-part standard, that the employer is liable for mixed motive termination if it would not have fired the employee in the absence of its (partial) motivation to retaliate against the employee for her opposing discrimination.

For you employee rights attorneys out there who deal with federal summary judgment motions and common employer arguments, including those arguments that over-rely on the credibility of employer (interested) witnesses, this article is a must read:

“Preserving the Right to a Jury Trial by Preventing Adverse Credibility Inferences at Summary Judgment,” by attorney Matthew C. Koski, of The Employee Rights Advocacy Institute For Law & Policy.

This article has a very good discussion of the legal authority, and includes case law and cites that every employee rights attorney could use to help their employee-clients in federal summary judgment practice.

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When I prepare with an individual before a legal proceeding in which he or she will testify– say, for example, when I meet with a worker before a deposition or an unemployment hearing– I discuss with that person what it means to be a good witness.

Being a good witness does not simply mean telling the truth, although that is certainly a necessary and important part of it.

Being a good witness also means work.

And the hardest work involved is not memorization of facts (you already know them pretty darn well). Nor will you spend hard work on thinking of ways you’re going to tell your story, explain how your opponent was wrong, or convincing someone how you were right– or at least you shouldn’t put work into these things, or you’ll lose.

Your job as a witness is to listen carefully to each question, and to answer ONLY that question.

Sounds simple, right?

Wrong.

See, your human instinct (like all of ours) is wired to do the opposite. Your mind, during a legal proceeding, will NOT want you to listen carefully.  Your mind will have you hear questions as you WANT to hear them, and to answer with something MORE or OTHER than what you are asked for. Your mind, when asked a simple question (say, yes or no) will want to give the questioner an elaborate answer, with volunteered facts and opinions (often true) that explain your “side.”

This is where the hard work comes in.

To really focus on a question, and focus on only answering that question alone– directly, factually, and truthfully– well, for most of us, that does not come naturally. It takes practice answering questions, i.e. work, to get to the point you actually do what a witness is supposed to do.

One exercise you could do is to have someone– whether your attorney, trusted family member or friend, etc.– ask you questions. And then, your task is to closely listen and answer only the question you’re asked.  If the question is a yes or no question, the answer should be “yes” or “no.”  It should not be “Yes, but …[extra details to explain/tell your side]…”

Practice this act of listening and answering questions before your legal proceeding, repeatedly, until you are comfortable with your results. It’s much like physical exercise, like lifting weights.

If you want your metaphorical muscles as a witness to get stronger, so to speak, that will take practice and work.

But if you don’t put in time and work as necessary to improve as a witness, you won’t turn out as strong at the legal proceeding as you hope you will.

Perhaps you found this legal site’s webpage because you have a legal issue that you want free information about, and a Google search led you here.

As a consumer, I have often used a Google or other website searches to find free information.

Sometimes, that has been successful for me.  For example, my dryer once stopped running, so I did a web search, found a repair video for my particular dryer symptoms, and the video showed a fix (showed me how a dryer fuse was the likely culprit and how to install a new dryer fuse). So I followed the instructions to install a new fuse in my dryer and… it worked (!!).

For one cycle. Then my dryer went kaput again. So I was back at square one, and about $30 lighter for the new fuse that I’d purchased and ruined.

The fact my web-inspired dryer fix did not work does not itself mean the how-to- video was ineffective. In fact, my botched repair was almost certainly caused by my terrible repair skills more so than the video’s content. The video was in fact competent in diagnosing a problem like mine, and in advising a reasonable potential fix for my dryer’s symptoms. (When I later talked to a repairperson, he told me the video’s diagnosis and fix I saw were reasonable but just one of several potential matches for my dryer’s symptoms, and as it turned out, the wrong match).

I learned a lesson about internet searches and web-based fixes: sometimes, the nature of the problem– in my case, a $50-$500 problem of either repairing a dryer correctly and/or botching the fix and/or replacing the dryer– requires the actual presence and communication from someone who knows what they are doing.

The same is true of legal advice.

Doing a web search for legal information may be helpful to a certain extent.  A web search, for example, may tell you some laws and some important issues that you had not previously taken into account when considering your problem. It may make you a better-informed consumer.

However, if you take action based on that web information alone– without talking to an attorney about your legal situation– you may wind up with the legal equivalent of a botched dryer repair.  If the stakes involved are greater than a new dryer’s pricetag (which IS often the case with many legal situations, whether people realize it or not), then that’s all the more reason to get legal advice from an attorney as compared to a website.

Please note that does not mean I’m saying you must get MY legal advice, or that of any paid attorney, just that legal advice you’d get from a competent attorney (whether private, nonprofit etc.) beats website information however competent that information appears on its face.

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Posted via email from Mike Brown’s posterous

As an employee rights attorney, I routinely represent Wisconsin workers in unemployment proceedings.

It is common for me to read unemployment-related documents, and to see that my client has (before s/he retained me), used the word “discrimination” in talking about the employer’s actions to the unemployment office.

And almost always when I see that word “discrimination” used during an unemployment matter, it is a bad thing for the employee.

Usually, whether an employer may have discriminated or not is irrelevant for an unemployment proceeding.

For example, the most common type of Wisconsin unemployment dispute I see is about whether the employee (NOT the employer) committed misconduct prior to job termination.  In other words, the whole issue for the unemployment proceeding is whether the employee did something really bad or not.

If an employee goes into a hearing or phone interview, the purpose of which is to decide whether the employee did something bad– and then the employee proceeds to point the finger at the employer to accuse it of doing something bad (e.g. “discrimination”)– that does not go over so well with the unemployment office.  Nor should it. The purpose of the hearing is for the employee’s conduct to be reviewed, not the employer’s bad conduct such discrimination etc.

With this said, there are a few limited unemployment law issues and circumstances where a WI worker does need to address what an employer did wrong. But usually, workers are not aware of or addressing those legal issues when they’re calling an employer “discriminatory.”  Usually, when a worker states that, the worker just feels the employer did wrong, and feels that an unemployment interviewer or judge will want to hear about that and/or will agree with that.

These are dangerous assumptions to make. You should not assume it is okay to talk about the employer’s “discrimination” unless you have reviewed and understand the legal standards, and know that what you’re saying is important under those legal standards. For most unemployment law standards (including discharge-for-misconduct as mentioned above), it is not necessary to mention “discrimination.”

Here is a list of Wisconsin unemployment legal issues and standards, at Wisconsin’s Department of Workforce Development’s website.

If you have a WI unemployment hearing coming up, chances are the hearing will cover one or more of these listed legal issues/standards.

Please consider reviewing the legal standards (or having a WI unemployment attorney brief you about them) before you decide to tell the unemployment office that your employer was “discriminatory”, or before you otherwise bring up topics concerning what you feel the employer did wrong.

While it is understandable that such things may be on your mind– and may well be true in some instances– you do not want to be offering up information that the unemployment office will find unnecessary and/or harmful to your own case.

Posted via email from Mike Brown’s posterous

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The U.S. Department of Labor recently created a smartphone-application (“app”), posted at this website, for workers to use to track their work hours and verify correct wages are being paid by their employers.

The app, which is free, allows workers to keep their own work-hour records, as there are often situations where their employers’ records of hours differ. For example, some employers fail to record or pay workers for hours the employer deems non-compensable time. In some cases employers exclude time their employees spend on work phone calls or work emails at home, or the employer makes deductions for designated break times or travel times for which work was actually performed and payable under wage laws.

In short, in some instances employers’ time records and wage payments are wrong, and employees are entitled more wages (including overtime) based on wage laws and the employee’s more complete records. This app helps workers become more mindful and accurate if such issues arise.

The app is currently available for iPhone and iPod Touch (with more smartphone platforms possibly to be added later), in English and Spanish.

Posted via email from Mike Brown’s posterous

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Often, employers will classify a worker as an “independent contractor” — and many times the worker agrees to this categorization– and the worker is not paid overtime for hours worked over 40 per week.

However, if you are a worker who is called an “independent contractor,” that categorization may not apply for overtime-law purposes and more understanding of the law can help you determine whether you are eligible for overtime pay.

It is wage law’s standards, not the designations of the employer and worker, that ultimately control whether the worker is in actuality an “employee” under wage law standards who is entitled to overtime pay.

The Fair Labor Standards Act (FLSA), the federal overtime and minimum wage law, sets forth the standards for what makes a worker an independent contractor (who is not entitled to overtime) versus an employee (who is entitled to overtime).

According to the U.S. Department of Labor (DOL), which enforces the FLSA, employers commonly misclassify employees as independent contractors.  Employment situations where misclassifications are common– i.e. where workers are often wrongly labeled “independent contractors” and denied overtime pay– include construction-contractor, franchiser-franchisee, and volunteer relationships.

As a general matter, FLSA standards involve a weighing of facts by a Court, and they relate to the degree of economic independence from the employer the worker has.

DOL posted this Fact Sheet about an employment relationship, and the factors that distinguish a worker from being an independent contractor versus an employee. According to DOL’s Fact-Sheet summary, significant factors a court considers include:

1) The extent to which the services rendered are an integral part of the principal’s business.
2) The permanency of the relationship.
3) The amount of the alleged contractor’s investment in facilities and equipment.
4) The nature and degree of control by the principal.
5) The alleged contractor’s opportunities for profit and loss.
6) The amount of initiative, judgment, or foresight in open market competition with others required for the success of the claimed independent contractor.
7) The degree of independent business organization and operation.

As stated, these factors are fact-intensive, and rely on the discretion of a court.  If your independent contractor designation is keeping you from time and one-half rate pay for overtime hours, you may be considering whether you are an independent contractor under the FLSA, per the factors above.  For more guidance on how a working relationship like yours may be analyzed under the factors above and other applicable law and cases, you can consult DOL’s website resources, your State’s wage-enforcement agency (which may enforce State overtime laws very similar to the FLSA), and/or a wage attorney.

Posted via email from Mike Brown’s posterous

Okay, that was a mouthful!

But as an attorney, I am often consulted by workers who– before they ever consulted with me or with another attorney– threatened the employer that they had done so.

I’ve even had workers who’d I’d never represented, and who’d never contacted me before, send their employers emails with my email address cc’d, to give the employer the impression that the workers had retained me.

Please do not make “A”-bomb threats like these!

Here’s why:

• Employers often view attorney threats as empty threats, thinking that if you really were going to have an attorney go after the employer, the employer would have heard that from the attorney, not from you.

• Employers who do believe the threat (1) will often try to hide their tracks and take concealed actions against you, now that you tipped them off you’re considering getting an attorney; and/or (2) will often try to get you to agree to a lowball settlement offer, before you get an attorney involved who may advise you of a higher potential case value and settlement valuation. Often, the employer does not offer a thing in result of the threat– I get inquiries from worker who were not only unsuccessful in that their A-Bomb threat got them no offer of wages or settlement money, but further, their threat resulted in the employer retaliating and/or firing them.

• The threat rarely works as well as actually getting a wage attorney.

When I represent workers with unpaid wages, the decision about when and how to inform the employer of me being retained is a very careful and well-planned decision.

When a worker makes that decision before consulting with me, the news is often delivered in ways that I wouldn’t have advised– too soon, too late, too angrily, too vaguely, etc.

It’s a significant decision to tell the employer about an attorney or potential legal action. Please consider talking to an attorney before you tell the employer you’re in contact with an attorney.

Posted via email from Mike Brown’s posterous

This post continues my series of tips, or things to consider, for workers with unpaid wages.

Tip #7 is this: use a date calculator to help with calculations of deadlines and/or unpaid wages.

For years, I have used a website date calculator, like this one, to help me calculate legal deadlines (statutes of limitations) and/or unpaid wages.

A date calculator website lets you (1) enter a start date (e.g. “5/1/2011″) and (2) enter a number of days (e.g. “300 days”), and then the website calculates the end date following that number of days (e.g. “2/15/12″ is the date 300 days after 5/1/2011).

This function can be a handy tool when calculating the deadline for a legal claim. For example, certain discrimination- and retaliation- based legal claims relating to unpaid wages have a 300-day deadline. (Please note that deadlines vary for different situations, and an attorney could evaluate applicable deadlines for the particular legal claims that may apply to a given situation).

If an attorney advised a 300-day legal deadline applied to a particular legal claim, a worker could use the wage-calculation function above to enter the date of the event at issue– e.g. a 5/1/2011 retaliatory job-termination of a worker fired for complaining about unequal pay based on gender– and the date calculator website will figure out the legal deadline date occurring 300 days after that initial event date.

Another helpful function of a date calculator website is to let you enter (1) a start date and (2) an end date, and then the website calculates the number of days between the dates.

This function can be helpful in figuring out how many weeks a worker was underpaid wages, and estimating the total unpaid wages over that time.

For example, if a worker estimates he was underpaid about $200/week between 4/12/2010 and 2/10/2011, he can use the website to calculate the total number of underpaid weeks and estimated unpaid wages at issue.

The worker can use a regular calculator to divide the 304 days by 7 days, which results in approximately 43 weeks. The 43 weeks can then be multiplied by $200/week (the estimate weekly unpaid wages above), and the total unpaid wage estimate in this example would be $200/wk x 43 wks = $8,600.

In sum, a date calculator can avoid the human time, risk and error that can be involved in counting a large number of calendar days, and can be a useful tool (along with a regular calculator, and legal advice about applicable deadlines) in calculating legal deadlines and/or estimated unpaid wages.

Posted via email from Mike Brown’s posterous