The 5 Biggest Mistakes Employees Make In Employment Disputes

On behalf of Peterson, Berk & Cross, S.C.

Below are the top 5 mistakes I see employees make in employment disputes. And, I should note, in my own work experience, dating back to the junior high paper route, I personally have made several of these mistakes several times.

Please know these are general opinions, and do not give legal advice for any particular situation. If you find yourself in an employment dispute and want legal advice, you should contact an employment attorney.

Having encountered thousands of employment disputes, here are the top 5 employee mistakes that I observe.

1. Assuming you are not part of the problem.

If you are part of an employment dispute, then you are part of an employment dispute. It takes two to tango, as they say. There is always something you could have done better. If you do not see how, then you are not being realistic.

Here’s an example, from my own life. Once long ago, I was laid off, along with a bunch of other workers as part of an organizational change. An organizational layoff couldn’t be my fault, right?

Before I was laid off, a manager had made statements to me suggesting, notwithstanding the impending organizational change, that my skills would be needed, there was no shortage of work, and he indirectly hinted that my job would be safe.

After I was laid off, I stewed about how that manager had not been forthcoming with me. How he said this, and he did that. The same types of thoughts people think before calling an employment attorney.

In my stewing about the manager, I failed to look at the laundry list of things that I did wrong.

Upon hearing of the organizational change, I failed to be proactive. I failed to make my work, and my skills, visible to the people responsible for the organizational changes. I failed to look into new skills I could develop, or offer to work on, that would be valuable after the organizational change. I failed to apply for other jobs, and work on a backup plan just in case there was a layoff (not a hard possibility to predict).

I watched others do proactive things like this, and most of those who did managed to preserve their jobs, while I did not.

In retrospect, I could (1) look at this situation as me being part of a layoff, and a victim of circumstances and a manager’s wrongful assurances; or (2) look at this layoff, as I now do, as my fault for sitting still while the warning lights were blinking, and for thinking I was entitled to jack squat from my manager when I didn’t make him aware of my value.

Is there something you could have done better, to have avoided your situation?

If an employee’s situation involves something more heated than an organizational layoff- say, the employee was fired for alleged performance problems or misconduct- in that event, chances are very good that the employee (even if in the “right”) made many mistakes. The most common employee mistakes involve communication.

2. Communicating poorly (especially when you’re right).

Poor or negative communication has lost employees far more jobs than any other cause. Often, people communicate poorly or negatively because they are riding a tide of emotion over something bad or unfair they think the employer did, and feel the need to tell their employer a thing or two.

Do NOT tell your employer off. Especially if you’re “right” and you “have the documents to prove it.”

Maybe you are itching to tell your employer off, because you think they are 100% wrong and deserve an earful. Maybe your employer did something patently wrong, like filing false tax returns, or like promoting the owner’s son (who has no experience) over you (who trained the owner’s son after he returned from his third resignation).

I don’t care how obvious the employer’s wrongdoing is, if you try to tell them off, or talk negatively, you will make your situation worse.

When obviously wrong or unfair things occur, too many employees react to these situations by marching up to their employer and telling them exactly how “wrong” or “unfair” they are. Big mistake. Remember your audience. Your audience is the wrongdoer. (Or perhaps management who assumes liability for the wrongdoer, so they have incentive to deny the wrongdoer’s wrong).

The wrongdoers’ wrongs make sense to them, and feel right to them. Do you think they really want to hear talk about themselves being “wrong,” “unfair” “lying,” “evil,” “ridiculous,” etc.

Before you communicate any concerns to your employer, even if in your mind you think you’ll be keeping things polite, ask yourself this: (1) How can I communicate my concern accurately, but without offending? (Some pointers: stick to the straight facts, consider the character and self-interests of the person you are complaining to, and state your concerns politely; sometimes, this is still not enough). (2) Can I change the situation? (If the answer is no, then you should consider securing a new job opportunity as a safety net before you approach the employer about its wrongdoing). (3) Do I have legal rights or other forms of leverage I can use to change things? (Often, the employee’s leverage pales next to the wrongdoers’).

3. Assuming you have leverage when you don’t.

Often, employees do not have leverage in their employment disputes, but mistakenly think that they do. Or, they make the mistake of not thinking about leverage at all. Many employees think that, because they think they’re “right,” that’s all the leverage they need. But the leverage in being “right” is limited, when the “wrong” party holds the big cards, like the ability to fire you on the spot, and to deprive you of income.

Strong leverage comes in forms like this: when the employee is a top performer with skills that are hard to replace and highly marketable, when the employee is well-regarded by management and the wrongdoer is not, when the employee has strong evidence (e.g. documents, signed witness statements, audiotapes) that proves the employer’s wrongdoing, and when the wrongdoing is of the type that provides strong basis for a legal claim that the employee has the ability to enforce.

However, most workers do not have these types of strong leveraging factors working in their favor.

Many employees assume that because the employer did something obviously bad, that means there must be a strong legal claim and strong leverage.

Know this: most of the bad things that employers do are not unlawful. And, of those actions that are unlawful, you may not have means to enforce those legal rights.

4. Assuming legal rights enforce themselves, and not knowing that enforcing legal rights requires a process.

Many employees mistakenly rely on legal rights as if they were a be-all, end-all. Many employees think their employers “can’t do that!” because there is a law that says so.

For example, say you qualified for FMLA coverage, your employer denied your medical leave, and you (not thinking about points #1-#3 above) told your HR rep, out of frustration: “I read on the internet that FMLA law says you HAVE to give me up to twelve weeks off for surgery, and I’m just asking for two. You can’t deny my FMLA leave!”

Of course the employer can deny your FMLA leave. Heck, they can fire you on the spot for asking for FMLA leave. Just because it’s against the law doesn’t mean they can’t do it.

An employer can do a lot of things that are against the law. Much like you can drive 70 miles per hour where the lawful limit is 65.

When you choose to drive 70, and when an employer chooses to deny a valid medical leave request, these things are usually done in anticipation that the laws will not be enforced. And in fact, in many instances, the laws are not enforced when wrongdoing occurs.

Know this: the law does not enforce itself, as enforcement requires a process.

For instance, if you speed, say you are driving 70 mph when the limit is 65, the law does not automatically impose itself on the situation, like a flash of lightning from the sky, dropping a ticket in your lap and deducting $150 from your checking account.

Rather, before you are legally liable for speeding, the following process must occur: (1) a legal authority, in this instance a cop, has to observe you speeding; (2) the cop has to catch you, and you may be a tricky bugger to catch, depending on your knowledge of the process (e.g. say you are familiar with radar gun enforcement) and your possible use of tricks to avoid the process (e.g. say you have a radar detector); (3) the cop has to decide to chase you (someone speeding at 70 mph) rather than use the limited resources at hand (1 cop car, and resources for 1 chase at a time) to chase other, worse speeders (others present may be going 80 or 85 mph); (4) if the cop wants to ensure that after you are caught you are held legally liable, he or she will have to collect evidence, like radar gun data, a written statement, etc.; (5) you will have the legal right to go to court and oppose liability, and by doing so you may be successful in knocking a few points and dollars off of the legal maximum for your infraction, or even beat the rap altogether. If you lose the first proceeding, you can appeal. If you lose thereafter, you can appeal.

This is just the process for a simple traffic ticket, and I’ve not even captured it completely.

As for processes involved with enforcing employment law rights, those processes, as compared to the process for a speeding ticket, are far more complex, lengthy, and costly.

Chances are that your employer, especially if they are a medium to large sized employer, is very familiar with the legal processes that would apply to your employment dispute, or can afford to hire an attorney who is. Also, most employers can afford to participate in the legal process- they can afford to pay legal fees and costs- for however many months or years the legal process takes.

Is that the case for you? Have you even considered what the legal processes are for your matter, how long they take, and how much they cost? If not, you should, before you go marching into management’s office (or meekly backing in, for that matter) and saying something that could get you fired.

5. Thinking “it’s not about money”- yes, it is.

You may want to think that your employment dispute is “not about the money,” but rather it’s about “principle,” etc.

Of course your employment dispute is “about the money.” A job is “about money.” Your employer hired you in hopes that your work provided the employer with more value- more money- than the value of the wages the employer paid you. Such is business.

On your part, if an employer takes an adverse action against you- namely, if an employer underpays you, demotes you, or fires you, then the employer’s actions cost you money. Sometimes a lot.

If parties engage in litigation, then they will have to pay money for legal fees and costs. Sometimes a lot.

Money is obviously the common denominator in an employment law dispute. Attorneys know this, and hopefully, your attorney has told you about this.

Why pay a lot of legal fees (e.g. $5,000 retainer cost for pursuing discrimination claim for job termination) if the potential legal award is less (e.g. $3,000 in lost wages following discriminatory termination)? To prove a “principle?”

If in pursuing a lawsuit you do not stand to gain more money than you pay, then you are better off spending your time and money on things other than a lawsuit.

The function of an employment lawsuit is to seek money. If you are seeking something different- say, seeking a public good- then focus on processes that are for the public good, such as contacting your legislators, petitioning, volunteering, etc. I don’t say these things facetiously- I do them all. But when people approach me outside a volunteering or political context, when they talk to me while I’m wearing my hat as an employment attorney, they are usually seeking to recover money. Even those people- in fact, especially those people- who are claiming “it’s about the principle.” Almost without fail, every potential client who has ever stressed to me their matter is about “principle,” has turned out to want far more money than the average person, and to want to pay far less (usually nothing) than the average person toward legal work and costs. Don’t ask a civil attorney to work for “principle:” be honest with yourself. If an employer’s negative actions cost you money, then you are motivated to seek money.

An employee rights lawyer is a service provider. The service is to try to obtain money for an employee who lost money. If you pay a lawyer $5,000, then the lawyer’s function should be to try to make you, or save you, more than $5,000.

If you don’t recognize these dynamics, and pay money for “principle,” then that is money you will lose. Losing money is usually the last- and lasting- mistake in employment disputes.