Employment Rights | Documentation

Documenting the ups and downs with your loved ones and friends may not float your boat, but whenever there is a problem at work, write it down. And keep it handy.

If you ever need to speak with an employment lawyer about work-related issues like unemployment or discrimination, the lawyer will ask you what written information is available.

In law, documentation is helpful for the following reasons:

1.     You boost your credibility in court. In a common “he said / she said” workplace situation, the one who records what happens will generally enjoy more credibility that an opponent who  relies solely on oral testimony. A judge, lawyer, or jury will likely view the record-keeper as someone who is more reliable.

2.     Time is on your side. Writing down what happened on the same day the incident occurred improves the weight of your evidence. Over time, people tend to forget what happens, or the way they interpret will change. For example, a joke that falls flat may devolve into a “nasty and hurtful remark” or, conversely, it becomes more and more "hilarious.”

3.     When you write, cite examples. If someone describes a boss or employee too broadly, the result may be more harmful than helpful. Calling someone a “nuisance,” “horrible,” “hurtful,” “dangerous,” and so on may evoke strong emotion, but the facts that led up to the emotion are not resolved. Compare “Mr. Santoni was a horrible boss" to "Mr. Santoni was a horrible boss because he informed me on April 12, 2010 that he modified confidential accounting records before the end of every quarter, and threatened to fire me if I told anyone about it.”

4.     Focus on what happened, not your emotion. If your tone is angry or abusive, then how did you likely behave in the heat of the moment? We are not robots without emotion, but unless if you are a trained spy, your emotions will probably get the best of you from time to time. Note your emotions when you write, but focus on what happened: the who, what, when, where, how.

Employment Rights | Freedom of Speech: What Do You Know?

Many people assume that the US Constitution applies to every American. Were you aware that the Constitution is mostly confined to matters that involve the government?

When a person says, “I have the right for freedom of speech.” The First Amendment protects freedom of speech, but the right only applies if there is a state actor.

For example, a police officer works for the government, so the officer is a state actor. The Constitution frames what the officer can or cannot do. A policeman cannot punish a person for speaking freely, per the First Amendment. In contrast, your friend who has a job at Home Depot, a private company, does not violate the First Amendment if he punishes you for what you say.

Most every law has boundaries. For example, in some situations a person may not have the freedom to say just anything. A person cannot yell, “There’s a fire, everyone out!” in a crowded movie theater when in fact there is no fire.

Also, communicating falsehoods about someone may be illegal. Defamation, which is a false statement concerning someone that is published and damaging to the person’s reputation, curbs freedom of speech. Perjury, or lying while under oath, also curbs the ability to speak freely.

If law has a favorite color, then that color is probably gray. Because I am a labor and employment law lawyer, I have come to realize that law is rarely black and white, cut and dry, or all or nothing. 

Cheers! You have the freedom of speech in America! Well . . . mostly.

Employment Rights | Wisconsin Struggle: What All The Fuss?

A bitter struggle over collective bargaining rights is raging in Wisconsin. I deal with many workplace issues as a lawyer, so this story is of particular interest to me.

In short, Wisconsin Governor Scott Walker, a freshman Republican, seeks to curb collective bargaining power from government employees. He argues that these drastic cuts are necessary to balance the state budget, which has $137 million shortfall.

Public sector employees, or those who work for the federal, state, or local government, enjoy several benefits, like health care and retirement benefits.

To curb benefits through negotiation is one matter, but what is significant in Wisconsin is that the very right to bargain for those benefits is in danger. Governor Walker seeks to permanently undermine a worker's right to bargain at the same time with other workers. 

If Gov. Walker has his way, government workers will have to may more towards their benefits out of their own pockets. It amounts to a big pay cut, but more importantly the workers will no longer be able to rely on the unions that negotiated the agreements for the workers in the first place.

Several different unions and mostly Democrat-leaning supporters oppose Gov. Walker. They argue that a decline of benefits will undermine the middle class, and widen the gap between rich and poor. The top 1% of Americans have an income of more than $348,000 a year, compared to 1 in 6 Americans that liven below the poverty line.

Employment Rights | Unemployment Numbers

Although the gap between the rich and poor is growing wider and wider in the US, most anyone around the world considers the American economy to be strong. Among other indicators, the GNI per capita in America is $47,240, which is about eight times as much as the average Chinese individual.

How does the world recession affect the American economy? Specifically, how widespread is employment? According to the official US unemployment rate throughout most of 2010, about 9-10% of Americans were unemployed.

Upon closer scrutiny the numbers are far worse. The US Bureau of Labor only counts Americans who are out of work and have actively looked for a job in the past four weeks. This means that people who suffer long-term unemployment - those who have not bothered to look for work in the past four weeks - are left out. Rather, these workers are "marginally attached" or "discouraged." If you consider everyone that doesn't have a full-time job, the number climbs to 17%.

There are a lot of people out of work: one person in seven. Small wonder I get several calls about employment issues each week.

Finally, note those who suffer from feelings of job insecurity, difficult work environments, and underemployment in addition to the number unemployed.

Employment Rights | Damages?

I get a lot of calls from people who were unfairly treated at work. Almost all the calls report mistreatment over a long period of time.

I care. I do what I can to listen and empathize. But the hard and cold truth is that money is always a major concern.

A lawyer who represents plaintiffs in employment law needs to know how much the lawsuit will likely cost. Most workers cannot come anywhere near to footing the bill for 100s of billable hours, so a lawyer takes a big risk if decides to take a case with the aspiration to win on a contingency.

The practice of law has two parts: the law part and the business part. Even if you really did fall victim to discrimination or retaliation, maybe your case just is not financially worth it.

How do you separate a lucrative case from a lemon? You need to show damages. For example, if you were fired, then the length of time between getting fired and getting a comparable job may be significant. Damages like emotional distress, which associate bad health to the bad conduct, are usually harder and more expensive to prove.

In criminal law, you have a right to a lawyer. We've all heard the police read the Miranda warnings to a suspect in the movies! But in employment cases, unfortunately, you don't. You need to have a case that works in both legal and fiscal terms.

Employment Rights | Aggressive Tactics

Today I received a 75-page packet. I groaned.

Whenever I receive a big packet in my office mailbox, I know it’s no Christmas present . . . unless you ask Santa Claus for pages and pages of documents to review!

A lot of clients want a lawyer who is "aggressive," which is understandable because many clients are in lawsuits because they feel hurt. But, realistically, aggression should always take a back seat to being reasonable. My motto is to "get the job done right."

The best lawyers I know get to the point. They are able to clearly summarize complex ideas. A less skilled lawyer prattles on and on or dumps unnecessary information. But quantity is not quality.

Today’s mail was a needlessly aggressive gesture. The court will probably assume that the opposing counsel just dumped the information, posturing to impress its client. The lawyer did not help her client.

In short, hire a diligent lawyer who will not bill you for unnecessarily "aggressive" tactics. Get a lawyer who gets the job done right.

Employment Rights | WARN Act Ruling Favors Workers

Judge Smith from the 9th Circuit just recently held that if an employee leaves a job because the business is closing, that employee has not “voluntarily departed” within the meaning of the WARN Act. Instead, there was an “employment loss.” Michael Subit successfully argued the case on behalf of Frank, Freed, Subit & Thomas, LLP.

The WARN Act is a law that requires an employer to order a plant closing or layoff only after “warns,” or gives written notice, to each affected employee. 29 U.S.C. § 2102(a). If the employment loss is for 50 or more employees, then the notice must be 60 days. If you have additional questions about the law, ask a lawyer.

This case is good news for workers. If you are working at business that is about to lay off a lot of workers, then you may be able to quit before the losses actually happen.

You may have more time to find a new job!