Archive for the ‘Employee Tip – Considering a Legal Action’ Category

If you are an employee with concerns about your employer, or you think you may pursue a legal action someday, please know that the documentation you keep is critical.  Do not assume the employer or others will keep important documents and give them to you later.  Also, don’t assume the employer will agree with your recollections of events– if you keep a journal with details (who, what, when, etc.), that documentation will make your position more credible.

More about documentation…

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Are you gearing up to give management an earful about all the wrongs they have been committing?

Before you confront management, please give thought to the big picture.  Especially if you are right, and you have proof you are right.

Being right is not enough.  Say your employer thinks the sky is green, and fires you because you insist it is blue.  You may be right, but you are still fired.  And if you intend on proving, to the point of a legal judgment, that the sky is in fact blue, you could have several years of litigation, and years of significant expense, to look forward to.  In some instances, a lawsuit is an option that can be very effective and/or affordable (e.g. contingency), but you should not assume that unless an attorney has told you that assessment.

Most companies know of the difficulties for an employee described above.   When you confront their management (especially when you do not know your legal rights and don’t have an attorney representing you) they know that they hold important cards–  your job and income– and that they can take them away.   Abruptly.  If they fire you, they know you will have no income, and that you’ll probably need income if you wish to enforce your legal rights.

Are you thinking about all these dynamics when you’re planning to confront your manager?

Now, it’s true that if you complain about your employer’s wrongdoing, there are laws that protect against retaliation.  There are also laws that prohibit speeding and Bernie Madoff-ing, and you can see how effective those laws are as applied to reality.  Sometimes those laws are effective– sometimes wrongdoers get caught and don’t squirm out of a significant legal penalty.  But too often the real-life penalties do not turn out like the wronged person would like to think.

Before you give your manager an earful, make sure you have a back-up plan if they fire you.  A real back-up plan.  A new job lined up.  A nest egg saved up.

Consider getting advice from a competent attorney, who tells you what potential legal claims, options and costs are at issue. You can take that information into account in deciding an appropriate course of action.

But if you assume that simply being right is enough to make things work out, you are rolling the dice.  Please educate yourself and plan carefully before confronting management or considering legal action.

Not long ago I was at an unemployment 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 dispute starts.  More often than not, legal proceedings are made personal and taken personally.

But not this time.  Which is more than good.

This post describes the doctrine of “employment at will,” and exceptions to the doctrine.  (Please note this post does not provide legal advice, and that different locations/States and their laws vary in how employment-at-will is interpreted).

Meaning of Employment at Will

Employment at will, as described in Wisconsin law, means an employer may fire an employee “for good cause, for no cause, or even for cause morally wrong, without (the employer) being thereby guilty of legal wrong.”  Brockmeyer v. Dun & Bradstreet, 113 Wis.2d 561, 567 (WI SC 1983).

Most States in the U.S. are at-will States, with Montana – which requires terminations be for “cause”– being the notable exception.

When employment is at-will, a job termination is usually legal, including most terminations that are done for bad or unfair reasons.

Exceptions to Employment at Will

There are notable exceptions to employment-at-will: subsets (minorities) of unfair reasons for termination that are both unfair and illegal, and thus could give rise to legal claims.  I lump the exceptions into three categories.

(1) Contract: If an employee has a contract with the employer, that contract may require legitimate “cause” for a job termination to occur.  For example, it is common for union-employer contracts (collective bargaining agreements) to define “cause” in specific terms that say an employee cannot be fired unless he or she has specific types of performance or conduct problems.  These contractual terms modify employment from employment at will into for-cause.  If the employer fires the employee without showing it was for “cause” as defined in the contract, then the termination could give rise to a legal action.

(2) Discrimination: Discrimination laws (and similar laws, like FMLA law or certain States’ anti-bullying laws) provide that an employer cannot fire an employee based on certain types of characteristics: race, religion, age, sex, disability, the fact the employee took a protected medical leave, etc.  Depending where you live, there are usually two, and sometimes more, bodies of discrimination laws that apply to you.  Federal discrimination law has its own laundry-list of protected characteristics for which an employer cannot discriminate against you, harass you or terminate your employment.  States have their own laundry lists (see Wisconsin’s, for example) which often duplicate, and add additional protected classes to, the Federal list.  While the laundry lists are long, they do NOT pertain to most of the “bad” reasons for which employers fire employees.  For example, an unfair personality conflict, or unfair performance expectations, are not discriminatory unless they were motivated by discrimination based on a protected characteristic (e.g. disability).  It is common for fired employees to feel “discriminated” against, before they are aware of what discrimination truly is, and what the protected classes are.

(3) Whistle-blowing: I use the term “whistle-blowing” loosely, to refer to situations where it is unlawful for an employer to fire an employee because the employee complained (or “blew the whistle”) about illegal conduct by the employer.  There are diverse statutes and laws that apply to specific forms of employee whistle-blowing/complaints: complaints about wage law violations, complaints about discrimination, complaints about defrauding the government, etc.  There are also more global, catch-all legal claims (e.g. wrongful discharge law) that could encompass a range of whistle-blowing activities.  Without going into detail, the bottom line is this: if an employee is fired in retaliation for complaining about illegal conduct by the employer, a whistleblower-type legal claim may exist, and the termination could be challenged in a legal proceeding.  Whistle-blowing, like discrimination and contractual rights, is another type of exception to employment-at-will.

Technorati Tags: Employment at Will, Wisconsin Employment at Will, Exceptions to Employment at Will

If you have an important document relating to a dispute with your employer- for example, a termination letter or a pay stub showing underpaid wages- please save that document.  (You can read a more detailed post here about all the types of good documentation, and how to preserve it).

Sounds simple, right?  But it’s easy to inadvertently misplace or throw away documents that could be used at a (much later) time after a legal proceeding has started.  So put all important documents in a safe place.

Just as important, please do not write on the documents you save, or otherwise alter them.

Always keep in mind that important employment documents may later be used in legal proceedings. For example, if you want to use your termination letter as an exhibit at an unemployment hearing, you don’t want to show the judge a letter that has your added, handwritten notes across it, saying things like “This is a LIE!!!!” (I only exaggerate slightly- I’ve had clients who marked up documents with notes reflecting their frustrations in similar terms).

Bottom line: hold on to important documents, and don’t mess with them.

DISCLAIMER: The information in this blog is NOT legal advice, nor does it establish an attorney-client relationship between you and Employee Rights Attorney Michael Brown or the law firm of Peterson, Berk & Cross. Legal advice often varies between situations. If you want legal advice for your specific circumstances, you must consult with an attorney.

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