Commonly, I get calls  from workers who are interested in a defamation action, based on false statements an employer made.  Defamation is a State-law claim, and I have represented persons for defamation claims under Wisconsin law.

If you are contemplating a defamation action against an employer, consider the things below.  (Please note this post does not provide legal advice; if you want legal advice, you must consult about your specific situation with an attorney who is licensed in the State in which the allegedly defamatory statements were made).

• Are you within the legal deadline period (and if in Wisconsin, did the employer make the false statement within the last 2 years)?

Wisconsin has a two-year statute of limitations (deadline period) for a defamation claim.  If you are in another State, that State may have a different statute of limitations period for defamation.

You should talk to an attorney about when the employer’s statements were made, to make sure you have time under applicable statutes of limitations to pursue defamation claims or any other legal claims that may apply.

• Did the employer make a demonstrably false statement?

In order to pursue a defamation action against an employer, you must show the employer made a false statement.

If an employer says you embezzled $100,000 and you didn’t, then that type of accusation is tangible and something that could realistically be investigated and proved false.  However, if the employer said something more subjective (e.g. that you are a “poor worker”), then that sort of intangible comment (e.g. “poor”) is harder to address and prove false.

So, if you are interested in a potential defamation action, the first question you should ask yourself is whether the type of employer statement at issue is subjective, or is objectively quantifiable as true or false.

• Can you prove the employer made the false statement?

Do you have proof — a document, recording, written statement from a witness who heard the statement, etc.– that proves the employer actually made the false statement?  If you are banking on assumptions alone (e.g. “my employer MUST be making false statements about me to other employers, because that’s the kind of people they are, and when I  apply to other employers no one offers me work”), that will probably not be enough to win a defamation claim.

If you do not have proof of a false statement, it is often the case that the employer will deny making the statement or will say they can’t remember.  If you intend on pursuing litigation for a defamation matter, you should have proof in-hand.

• Has the false statement mattered- has it cost you a specific opportunity or wages you can identify?

Can you prove you lost a specific opportunity and/or monies, e.g. you lost a new job because of your old employer’s false statements?  If you lost tangible opportunities and monies due to a false statement, then it becomes more feasible to consider a legal action.

• What was the context in which the statement was made– was it while you were a current or former employee? While you were in a legal proceeding?

If an employer makes a false statement in certain contexts– for example, if the false statement is made during legal proceedings (e.g. during a deposition), or in a public forum– then there are certain legal immunities that may apply and make a defamation action difficult even if you can prove a false statement was made.

As another example, if an employer makes a false statement about a current employee as opposed to a former employee, then a defamation claim could be preempted (blocked) by workers compensation law, depending on the situation.

In short, the context of the statement matters.  Talk to an employee rights attorney licensed in your State about the specific circumstances under which the false statement was made.  (You can search for such an employee rights attorney, by-State, at this website).

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 (and an employment attorney for employment matters).

For more information about Wisconsin employment attorney Michael F. Brown and Peterson, Berk & Cross, S.C., please visit here.

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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 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 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 how ever 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. 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.

If you are gearing up to give management an earful tomorrow about all the wrongs they have been committing, please give some thought to the big picture before you head off to give your speech.  Especially if you are right, and you have stacks of documents proving you are right.

Being right is not enough.  If 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 have at least a few years of litigation, and a few years of significant expense, to look forward to.  

Most companies know this.   They know they hold your cards– they hold your job and income, and they can take it 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.  They know litigation takes years to complete, and they know they will likely have much more money to pay toward litigation than an individual like you does.

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 large nest egg saved up.  Advice from a competent and value-conscious attorney, telling you what potential legal claims and options you have.

But if you believe that simply being right is enough, you are rolling the dice.

If you are thinking about all your problems with your employer, and want to tell the world- or, tell Facebook, listservs, and/or public message boards- you should think twice and count to ten before posting.

It is understandable to feel highly frustrated by an employer who has underpaid you, harassed you, fired you, or otherwise treated you unfairly.

But don’t let your frustration cause you to make careless postings of public information about all the hurt and anger you feel, and all the details and opinions on your mind. Once you post specific identifying information (employer’s name) and alleged conduct, you are crossing into a threshold where negative consequences can occur.

When people are hurt, they tend to communicate in an emotional, and often counterproductive, manner.   An employee posting negative information about an employer could cross the line, and post something that the employer would claim is false or damaging to the employer’s reputation or business.

In some instances, an employer could bring a lawsuit for defamation against the poster. 

There is no use for fightin’ words in the legal world: the facts are what matter, e.g. facts about the worker’s termination.

And the facts only matter if they are communicated to the right place: to an attorney, to a legal decision-maker, or to someone else who can help.

Information that is posted on messages boards and the like is posted to everyone- to some people who could possibly help you, but also to some who could possibly hurt you.

If the employer reads negative information and details that you post about the employer, the employer could decide to make an issue, or a lawsuit, out of your post. The legal focus could shift from the core issue (unpaid wages, termination, etc.) to the issue of the comments you posted about the employer, and whether they were necessary, professional, or true.

Yes, truth is a defense to a defamation claim. But no defense is guaranteed. And even if you had a winning defense to a defamation claim, you would still have to pay for defending yourself in court, in all likelihood, if a lawsuit were filed. The best plan is to avoid the risk altogether, and not make negative message board posts in the first place.

If you want to fight an employer, make sure the fight is in the right forum (e.g. communicated via an attorney or legal proceeding, not via a message board), and fight with the facts rather than emotional adjectives or opinions. If a party is making negative comments on message boards, that party runs the risk that in later legal proceedings the party may be viewed as unprofessional or not credible, even if they are in the right.

Of those workers in Wisconsin who file discrimination complaints without an attorney, most have no idea how much a fair settlement value would be for their case.  And how should they?  For nearly every employee complainant, this is their first legal complaint, and they have no familiarity with the legal process, with what sorts of awards can be won, or with what typical settlement ranges are.

So I can’t blame any employee for not knowing what their case could be “worth”- that’s a very difficult thing for a non-attorney to get experience with or solid information about.

However, an employee who does not have an idea of his or her case’s value will often make mistakes that cause their case not to be settled, and litigation to be prolonged (and the case possibly lost).

In my experience, employees who do not have an accurate idea of what their case is worth will tend to highly overassess the worth.  This overassessment is not usually based on the law, but rather based on the employees’ ”gut” feeling of how much the employer should pay, based on how unfair the employer’s conduct was.

It is not uncommon for an employee complainant to assume that his case could be worth hundreds of thousands of dollars, or several years’ worth of severance pay, when in fact his specific case has legal and practical limitations that make his case worth far, far less than what he thinks.   (Now, there are a few employment discrimination cases out there that are in fact worth hundreds of dollars in damages, but those are the vast minority of cases).

Often, as a result, employees who have these wrong assumptions will: (1) make settlement offers that are way too high, often higher than legal damages/award maximums;  (2) cause the employer to feel the employee is completely unreasonable, and stop engaging in any further settlement talks.

You don’t want to block yourself out of a reasonable settlement offer because you are asking for the moon and don’t know it.

On the other hand (although less common), some employees will significantly underassess the value of their case.  For example, an employee may focus on the value of a discrimination claim and not know that she in fact has a potential claim for unpaid overtime wages that has strongly supportive evidence and is worth far more in damages/monies than the discrimination claim being pursued.

This is where attorneys can help.  Employment law attorneys who have worked on and evaluated many discrimination claims can provide a thorough legal analysis of what your specific case may be worth, and whether your analysis may be missing any important factors.  The attorney’s assessed value may be much lower than what you want to hear- or maybe higher, to your pleasant surprise- but either way, it’s best to get all surprises removed from the equation as early as possible.

Here is a post that discusses “Things to Consider Before Filing a Discrimination Complaint at the Wisconsin ERD or EEOC,” including information about valuing an employee’s Wisconsin discrimination case.  That post, and this one, are for general information only.  Again, if you want a specific evaluation of your own discrimination case’s value, you should consult with an employment attorney to get a complete assessment.

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 (and an employment attorney for employment matters).

For more information about Wisconsin employment attorney Michael F. Brown and Peterson, Berk & Cross, S.C., please visit here.

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I want to write and say, first of all, that I appreciate the Comments this blog has received- thanks to those of you who have commented!

Please know that if your Comment concerns your own specific situation- i.e. you have questions about your specific employment situation, or want to know the legal rights you have in a specific situation or legal proceeding involving your employer- the blog Comments are not a place where I can provide legal advice for such specific circumstances.

On several occasions, I have received Comments from well-intended folks who understandably want questions answered about their specific employment law situations.  However, blog Comments are not a place where an attorney can thoroughly assess a situation, and provide informed legal advice.  A phone or office consultation is needed at minimum.

Please do not take it personally when I do not post  Comments that ask questions/ask for legal advice, or answer the questions within them.

If your questions involve a Wisconsin-based employer (or an H-1B employer in any State), then you can contact me (Employee Rights Attorney Michael Brown) via my law firm Peterson, Berk & Cross, at 920-831-0300.

If your matter concerns non-Wisconsin matters, and non-H-1B matters, please go to this website: www.nela.org, where you can search for employee rights attorneys in your particular State.  For those of you who have made Comments, thanks again for reading, and for your interest in contacting me.

As of late, with the economic downturn, many employees have tried contacting Employee Rights attorneys, including my firm and me, but have had trouble being able to speak to an attorney, or to arrange a consultation, etc.  In the past, I tried to offer brief and free phone consults for all who called, but at this time logistically I cannot speak with many people, or have consultations free of charge.

If you don’t speak to me, please know this is nothing at all personal about you or your matter.  Also, if you have troubles reaching other employee rights attorneys, please do not take that personally, either.

If you think there is any chance you may proceed with a legal action, it is important you promptly learn about your rights and any deadlines (statutes of limitations) that may apply.

If you want to speak to an employee rights attorney in Wisconsin or any other State, please consider visiting the National Employment Lawyers Association (NELA) website here, where you can do a by-State search, and get listings of employee rights attorneys’ contact information. I give you this link with the disclaimer that I am not recommending that you retain, or not retain,  any particular attorney who may be listed.  This is just a centralized resource where many employee rights attorneys’ contact information is  located.

Hopefully, you will get through to an attorney who is available and who you are comfortable with.

If anyone knows of a free attorney/legal resource(s) that is available and focused on receiving inquiries from employees with employment law concerns, particularly in WI, please let me know.  I’d be happy to forward the contact information.

Thank you very much for your inquiries, and sorry again if we don’t get to talk.

Wisconsin law requires that an employer provide an employee, upon his or her request, with a copy of the employee’s file, also called a “personnel file.”  A Wisconsin employer must provide the personnel file to current and former employees upon their request. 

This post describes how a Wisconsin employee can go about requesting his or her personnel file.  (Please note this post is not referring to any State’s requirements other than Wisconsin’s: many states outside Wisconsin have their own particular personnel file requirements). 

In Wisconsin, an employer is required by law (Wis. Stat. §103.13): 

• to keep a personnel file for every employee;
• to include, within that file, any documents used in determining the employee’s qualifications for employment, promotion, transfer, additional compensation, termination or other disciplinary action; and
• to allow the employee to view the personnel file, or get copies of the personnel file, within seven (7) working days of the employee’s written request.

How to Request the Employer’s Disclosure of Documents

If you are a Wisconsin worker and want your employer or former employer to give you copies of your personnel file documents (or give you a chance to review the file at the employer’s premises), you should consider writing a letter that simply asks for a copy of your personnel file, or for access to the file.

If your first written request does not work (most of the time it will), then you can consider writing a second letter that (1) repeats the request for your personnel file documents; and (2) states the law (“Wis. Stat. §103.13″) that requires the employer provide you with the documents.

Please note that the context of your request makes a difference, and your request should be polite no matter what the context.  For example, if an employer fires an employee, and two days later the employee writes a letter stating “I want copies of all my records BECAUSE THEY WILL PROVE YOU ARE LYING!!!!!” this sort of request will obviously not go over well, and will tip the employer off that the employee may have intentions to pursue a dispute or litigation. 

Your communications with the employer should always be polite.  If requesting the documentation at a particular time (e.g. right after you’ve been disciplined) will tip the employer off that you have concerns about your employment (and you don’t want the employer to know you are examining those concerns), you may considering waiting for a better time, if possible.

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 (and an employment attorney for employment matters).

For more information about Wisconsin employment attorney Michael F. Brown and Peterson, Berk & Cross, S.C., please visit here.

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If you are an employee, had your job terminated, and are even thinking you may bring a legal claim against your former employer some day, please know that you should keep documentation relating to your job search efforts.

You may ask, “What does my job-search or new employment have to do with what my old employer did?”  The answer: for most common employment claims (e.g. a claim your termination violated discrimination law), the offending employer can be held responsible for wages you lost (or “back pay”) from the date of your termination forward.  An offending employer could try to legally reduce or eliminate the back pay it has to pay you by claiming that you didn’t look hard enough for a new job (or that you “failed to mitigate damages” in legal speak).

To avoid this potential argument that you failed to mitigate damages or look hard enough for work, you should keep documentation of your job-hunting efforts to remove any doubt that you made reasonable efforts to find work.

What Documentation You Should Keep

To keep good documentation of your job-search efforts, you should:

• Keep or record information about every prospective employer you contact (e.g. write down the prospective employer’s name, date of call/visit, what job position you inquired about, rate of pay, etc.).
• Save copies of job-application-related documents (e.g. job ads you reviewed, applications you sent, cover letters, resumes, rejection letters, etc.).
• Save copies of unemployment-related documents you have (e.g. Wisconsin’s Unemployment division requires that an unemployment claimant-employee contact at least two prospective employers per week, and to keep documentation to that effect).

If you keep these forms of documentation, you will be in a better position for any future legal claim against the employer who terminated your employment.

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 (and an employment attorney for employment matters).

For more information about Wisconsin employment attorney Michael F. Brown and Peterson, Berk & Cross, S.C., please visit http://www.pbclaw.com/mb.html.

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On various occasions I have received calls from employees who became aware of various legal rights (e.g. ADA discrimination law rights) from information they found on the internet (e.g. EEOC’s website pages about ADA rights).

While it is a great thing to educate yourself, please do not make the mistake of assuming the information you learned is comprehensive, or means what you think it does.  And please, please don’t rush to your employer, and admonish them based on your internet-based understanding of your rights (e.g. “EEOC’s website tells me you’re a bad employer and violating ADA law because you won’t give me the reasonable accommodations I asked for!!”).

There are many, many problems that can arise when an employee avoids talking to an attorney and takes a do-it-yourself analysis of legal rights based on internet research or other incomplete information.

For example, you may learn from internet research that the ADA provides the right to a “reasonable accommodation” for employees who have disabilities.  What you may not have read on the internet is the fact that many federal courts have determined, for many employee-litigants, that their serious physical conditions (e.g. cancer, diabetes) did not meet ADA’s legal definition of a “disability.”  If you have cancer, a court may or may not find that your cancer may qualify as a “disability” under the ADA definition.  Only if your condition is found to be an ADA disability, would you be legally-entitled to any reasonable accommodation.  Moreover, in order to get a legal decision, you may have to expend a good deal of time (possibly years) and expense (e.g. some medical experts will charge hundreds or thousands of dollars an hour to testify whether your condition is a disability).

These are the things that an internet search usually won’t tell you, that a competent employment attorney can.  (Please note: there are some good things that could happen from you pursuing your legal rights that an employment attorney could tell you about too; but the purpose of this post is to tell you how to prevent bad things from happening).

Before you rush to admonish your employer about any legal right, you should strongly consider talking to an attorney.  Many employee rights attorneys will provide free initial consultations over the phone, and even a single consultation should educate you about some wrong assumptions you made based on internet information, and could save you from making some serious mistakes in your future conduct with respect to your employer.

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.

For more information about Wisconsin Employee Rights Lawyer Michael F. Brown and Peterson, Berk & Cross, S.C., please visit http://www.pbclaw.com/mb.html.

Fear is the biggest factor that holds many H-1B workers back from approaching their employer (or former employer), and asking for their underpaid wages, or from taking legal action.

H-1B workers do in fact have several options and legal rights. Some of those rights are very powerful.

However, those rights will not do you any good unless you are willing to pursue them. To fight to enforce your rights. To make educated and bold decisions, and stick to them. To know that, in order to achieve what you want to, you will have to take on some risks.

A fraudulent H-1B employer has many more risks than an underpaid H-1B worker does. Many H-1B employers would be willing to discuss an amicable settlement with an underpaid H-1B worker rather than deal with a legal action, and face the potentially severe liabilities. Yet the employers don’t seem to worry nearly as much as do the H-1B employees.

If you are an H-1B worker, and are too fearful to talk to your employer about unpaid wages, I can understand where you’re coming from, and I could never judge you for feeling that way.

However, I do ask that you not contact me, asking me to spend hours of time discussing legal rights that you know you’d never pursue anyway, because of your fears. Only if it’s possible you could commit to assuming some risks and pursuing your rights could an attorney possibly help you.

If you don’t take action, you may well face risks (e.g. an employer’s underpayments could be hurting your immigration status). If you do take action, you may well face risks (e.g. the employer may threaten deportation). You’ve got to deal with your situation.

In dealing with your situation: (1) don’t let fear control you; (2) know the risks are there, and that you must deal with them; (3) educate yourself about your legal rights and options; (4) learn what options present the lowest risks and highest potential benefits; (5) make an educated decision; and (6) don’t second-guess yourself. Only if you are willing to overcome your fear and accept risks would you have any chance to obtain what you’re owed, and to improve your immigration status and options.

Additional Information

For more H-1B employee rights information, please visit the blog www.h1blegalrights.com.

To learn more about H-1B rights and options, please see these posts:

• “Employee Tip: If You’re an H-1B Worker Being Underpaid Wages, Consider These Things”
• “5 Reasons Why an H-1B Employer Would Want to Reach Settlement With An Underpaid Employee”
• “H-1B Workers’ Fears vs. Fighting for Your Rights”
• “FAQS- If You Were Underpaid as an H-1B Worker and Are No Longer in the U.S.”

For information about H-1B Rights & Immigration Rights Attorneys Michael F. Brown and Vonda K. Vandaveer, please visit here.

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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If you were underpaid as an H-1B, and are now outside the U.S., below are some frequently asked questions and answers.

#1: Can I bring a legal claim in the U.S. against my former employer, when I no longer live in the U.S.?

Probably yes. There are cases in several areas of U.S. law where non-citizens are allowed to pursue legal action against a U.S. citizen or U.S. entity (e.g. their former U.S. employer). As a non-citizen, you probably have “standing” to bring a U.S. legal claim when that claim is based on events that occurred while you were working in H-1B status.

#2: It has been several years since I left my underpaying H-1B employer and left the U.S.- is it too late to file a legal claim? What are the deadlines?

If your wages were underpaid sometime within the last four (4) years, you still have time to consider taking legal action against your former employer.

There are several deadlines that may apply to your situation, ranging from one (1) to four (4) years or possibly longer.

The Department of Labor (DOL) has a one (1)- year deadline for filing a complaint for being paid under the prevailing wage.

Even when the DOL deadline has passed, there are other laws that may apply to your situation that have longer deadlines. For example, State wage laws often have two (2)- year or three (3)- year deadlines. Some State and Federal fraud laws have longer deadlines-one important federal fraud law that applies to underpaid H-1B wages has a deadline of four (4) years. Some applicable laws’ deadlines may be even longer.

#3: What makes a legal claim “good” or worth pursuing?

These are the most important factors that are likely to make a legal claim “good:”

• Your deadline hasn’t passed.

That is, at least some of your underpaid wages occurred within the last four (4) years.

• The amount of your underpaid wages is significant, i.e. tens of thousands of U.S. dollars or more.

If you were only underpaid a few weeks’ wages, then a legal action is probably not worthwhile for you to pursue.

If you lost a significant amount of wages, tens of thousands of dollars or more, then there is more you would stand to gain from a legal action.

Also, the greater the amount of lost wages, the more likely it is that an attorney would represent you on a contingency basis instead of requiring fees in advance. (Under a contingency arrangement, you do not have to pay your attorney out-of-pocket legal fees. Fees are only paid by the employer if you obtain a settlement or legal award. For more information on this subject, please see Question #7 below).

• You have LCA and pay stub documentation proving you were underpaid.

It will help your legal claim a great deal if you have copies of: (1) your Labor Certification Application (LCA) or other documents that prove what your prevailing wage was; and (2) pay stubs or other documents that prove your H-1B employer paid you less than the prevailing wage.

If you do not have these documents, you can still pursue your claim. Having these documents, however, makes a claim easier to prove and pursue.

#4 Will I have to file a legal complaint for my matter, or is it possible I can reach an agreement (settlement) with the employer without having to pursue a lawsuit?

Often, an H-1B worker will be able to reach a settlement with the employer without having to file a legal complaint. It is often in the employer’s best interests to reach a settlement rather than face the costs and risks of litigation. Employers often stand to lose a lot of money- if they lose a judgment, they may have to pay for your unpaid wages, pay additional penalty monies, and pay their own attorney fees and legal expenses. Thus, it is often in the employer’s best financial interest to reach a reasonable settlement with its former H-1B worker, before a legal complaint is filed.

If a legal complaint is filed, it is still possible that a settlement can be reached in the earlier stages of litigation, before the parties have spent a significant amount of money on litigation.

#5 If I pursued my unpaid wages from my former H-1B employer, would I have to travel to the U.S.?

Chances are you would not have to travel to the U.S. As mentioned above, there is a good chance you could reach a settlement with your employer before filing a legal complaint. If a legal complaint is not filed, there is no requirement that you travel.

If you cannot reach a settlement with the employer and you decide to file a legal complaint, then after the complaint is filed you could be required to travel to the U.S. As part of litigation, there are two potential occasions you may have to travel: You could be required to attend a deposition in the U.S., and you could be required to testify at trial. However, many cases in litigation are resolved before these occasions (a deposition or a trial) arise. In addition, if a deposition is necessary, it is possible the court will permit a video deposition so that you do not need to travel to the United States.

The bottom line is this: (1) the chances are good you could settle your unpaid wage matter without having to travel to the U.S.; (2) if you don’t settle your matter before litigation, you have a choice of filing a complaint (and possibly commit yourself to traveling) or not filing a complaint; and (3) if you file a complaint, your legal case may still be resolved without you having to travel to the U.S.

#6 If I have to travel to the United States for litigation, do I need a visa?

What if you do wind up filing a legal complaint and you do reach the point you are required to travel to the U.S. and attend a deposition or trial? Would you be legally-allowed to travel to the U.S.?

Visa regulations specifically allow foreign nationals to come to the United States on a tourist/business visa for litigation purposes. Therefore, if you are eligible for the Visa Waiver Program, you may enter the United States under that program and stay up to 3 months. Otherwise, you will need to obtain a regular tourist visa from the U.S. consulate in your country if you do not already have one.

If you are subject to a bar to re-entry because you significantly overstayed your last visa, engaged in unauthorized work, or are otherwise inadmissible to the United States, you may qualify for a non-immigrant visa waiver of inadmissibility. If these circumstances apply to you, you should consult with an attorney to discuss your options.

#7 If I hire an attorney to help pursue my unpaid wages from my former H-1B employer, how much would that cost me?

If you retained an attorney for your matter (the attorney must be someone licensed in the U.S.), there are several types of fee arrangements, some of which don’t require you to pay anything unless you win.

Some U.S. attorneys will represent H-1B workers with unpaid wages on a “contingency” basis.

If the attorney will work on contingency, that means you do not have to pay the attorney anything out of your pocket. The attorney is only paid if you settle or win your case. When you win your case, the H-1B employer will pay a percentage of your settlement or judgment (traditionally 33 1/3%) to your attorney for legal fees.

There are other types of legal fee arrangements where you do have to pay out of pocket legal fees. For example, many attorneys charge hourly legal fees, usually ranging between $150/hour to $300/hour (rates may be higher or lower depending on the locale and other factors). This hourly type of fee arrangement will require that you pay out-of-pocket money to your attorney, and you will get a regular bill from the attorney.

An hourly fee arrangement is ethical and common, and it could turn out to be a better financial deal for you in the long run than a contingency arrangement. However, the disadvantage of hourly fees is that these hours can add up quickly and become very expensive for you. In a short time (a matter of a few weeks or months), you could be charged thousands of dollars in hourly fees. If you pay hourly fees for long-term litigation, you could easily incur tens of thousands of dollars in hourly fees.

If you retain an attorney on an hourly basis, you should ask that attorney for a detailed budget and estimates of what you can expect to pay throughout the litigation process.

As you can see, one important issue to consider when you hire an attorney is whether that attorney will have a contingency fee arrangement or a different arrangement that requires you to pay out-of-pocket legal fees (like hourly billing).

Another important factor to consider when hiring an attorney is whether that attorney is experienced in dealing with H-1B wage issues, immigration issues, and employment disputes and litigation.

There is a blog post here (Important Questions to Ask When Hiring an Attorney), which details many important factors to consider when retaining an attorney.

Additional Information

For more H-1B employee rights information, please visit the blog www.h1blegalrights.com.

To learn more about H-1B rights and options, please see these posts:

• “Employee Tip: If You’re an H-1B Worker Being Underpaid Wages, Consider These Things”
• “5 Reasons Why an H-1B Employer Would Want to Reach Settlement With An Underpaid Employee”
• “H-1B Workers’ Fears vs. Fighting for Your Rights”
• “FAQS- If You Were Underpaid as an H-1B Worker and Are No Longer in the U.S.”

For information about H-1B Rights & Immigration Rights Attorneys Michael F. Brown and Vonda K. Vandaveer, please visit here.

This post was jointly authored by Employee Rights Attorney Michael Brown of the law firm of Peterson, Berk & Cross, and Immigration Attorney Vonda K. Vandaveer of the law firm V.K. Vandaveer, P.L.L.C. Attorney Vandaveer authors the blog U.S. Business and Immigration Law.

DISCLAIMER: The information in this article is NOT legal advice, nor does it establish an attorney-client relationship between you and the attorneys or law firms above. 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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The late George Carlin famously spoke about seven words you can’t say on TV.

Not one to miss a chance to co-opt, I will offer you three words you should NEVER utter in an employment dispute.

There are the three words you should never say to your opponent, to a legal investigator, to a judge, .. not even to this guy- your own attorney!

"Please don't say these words." Lionel Hutz

Here are the 3 words:

1. “Liar” (see also variations, “lied”/”falsified”/”fabricated”/”slandered”/”extorted”/etc.).

I know, I know. It’s hard NOT to use this terminology when you feel your opponent IS in fact a “liar.”

Problem is, if you tell people this word, then you are supplying them with their own conclusion (“That guy = LIAR”). They will resent you for it.

For example, say that you (Dude #A) tell a Judge that your opponent (Dude #B) is a “liar.” The Judge does not know Dude #B from Adam. The Judge does not know YOU, Dude #A, from Adam. All the Judge knows is that you are the Dude who is walking around saying that others are “liars.” This makes the credibility of Dude A (you) appear worse than Dude B (the “liar”).

If you want the judge to UNDERSTAND that Dude B is lying, then state the FACTS. As they say, show, don’t tell. Show the facts. You may tell the judge this:

“Dude B stated that the sky is green. I provided him this picture of the sky, which I will introduce as Exhibit A. The picture shows the sky is blue, not green as Dude B states.”

At this point, the decision-making party (judge, investigator, etc.) will make his or her own judgment about what is true. And if that decision-maker decides Dude B is “lying,” then that is THEIR conclusion to make, not yours. Don’t try to force-feed the decision-maker your conclusion.

2. “Incompetent” (see also “stupid”/ “disorganized”/ “ridiculous”/ etc.).

See above.

3. “Unfair” (see also “evil”/”biased”/”discriminatory”/etc.).

See above.

If you are in an employment dispute, the chances are high that things will get emotional, and that you will be tempted to use the words above. Avoid the temptation to use charged words or to supply conclusions. Don’t editorialize. You should discuss things in a polite, factual manner.

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 (and an employment attorney for employment matters).

For more information about Wisconsin employment attorney Michael F. Brown and Peterson, Berk & Cross, S.C., please visit http://www.pbclaw.com/mb.html.

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Many employees file discrimination complaints with Wisconsin’s Equal Rights Division (ERD) without retaining an attorney. If you are an ERD complainant without an attorney, and you just received a “probable cause” determination, you may be wondering “now what?” Or at least you should be. In the time following a probable cause determination, things will get more formal and legalistic. You should get the most information you can about what’s to come.

Below, I’ll discuss what a “probable cause” (PC) determination means, what a “no probable cause” (NPC) determination means, and what each determination may mean for you. Bad news first.

“No Probable Cause:” What This Means, and What You Can Do

If the ERD determination states there was “no probable cause” of discrimination, this means the ERD investigator believed it was unlikely that discrimination occurred, and he or she decided your case should be dismissed. And your case will be dismissed, unless you appeal the NPC decision. If you appeal your decision, you will be entitled to attend a hearing, at which an administrative law judge (ALJ) will decide whether the ERD investigator erred and there is in fact probable cause of discrimination. At these “probable cause hearings,” the ALJs agree with the investigators the vast majority of the time, and uphold the NPC determination. So the odds of winning a probable cause hearing are low (not to mention the odds of going on to win a second hearing on the merits), although not impossible. In my view, there are occasionally cases with very good evidence of discrimination (e.g. documentation or witness statements supporting that discrimination occurred) that nonetheless receive an NPC finding. On some occasions, an appeal is a good idea.

• How to appeal.

If you get a NPC finding and are considering an appeal, you should immediately read the appeal instructions and the deadline stated in the NPC determination.

To appeal, you need to write a letter, and the NPC determination describes the (brief) information you need to include in the appeal letter.

The deadline for appeal is 30 days. This deadline requires that the ERD receive your appeal letter within 30 days of when the NPC determination is dated. In other words, because of mailing times, the deadline is shorter than 30 days. If you are considering an appeal, pay close attention to the dates, be mindful of mail delays, and act promptly.

• Should you appeal?

Whether or not to continue a legal action is an important decision, involving several factors.

Your decision should not be a knee-jerk reaction, based on a gut belief that you are “right,” or that there is a “principle” that you must keep pursuing. Perhaps these things are true. But you should also consider: (1) how much time could this appeal take?; (2) how much will this appeal cost (in deposition fees, expert fees, fees for an attorney you hire, etc.)?; and (3) what is the risk you will lose?

When you get an NPC decision, that is a bad decision, and should serve as a reality check. Not necessarily a reality check that you’re wrong, but a reality check that, as far as ERD is concerned, you are more likely to lose your case than win it.

Often, this notion- that you can be right, but lose- is a big barrier for many ERD complainants to get over. If this is your first trip through the legal system, you may have assumed that the ERD would feel your pain, and would agree with the facts as you discussed them. Now you see that is not so, and that there is a serious risk you will lose your case, despite your best efforts.

With that said, there are certainly cases where I feel the ERD’s NPC determination was wrong, and where I feel an appeal is warranted. Also, for certain cases and circumstances, there may be an option to remove the case from ERD altogether and file a discrimination complaint in federal court.

Before proceeding with an appeal (again, be mindful of the deadline), you may want to contact one or more attorneys for their opinions, especially if you can do so for free. You can get their opinions whether appealing your NPC determination is the best decision, or whether there are other decent options available.

If you do decide to call an attorney, do it quickly. An attorney can be of much more help if you call on day one after the NPC determination, as opposed to the day before your appeal deadline.

The same is true for those of you who received a PC finding. While a PC decision is good news, that decision will trigger a series of legal obligations that you have to follow. There are several important things to consider after you receive a PC decision.

“Probable Cause:” What This Means, and What You Can Do

If you receive a determination of “probable cause,” this means (1) the ERD investigator decided there was evidence of discrimination in your matter; and (2) you will have a hearing before an administrative law judge (ALJ). At the hearing, the ALJ will decide whether the employer is liable for discrimination, and if so, what monies and relief the employer must provide you.

If you receive a finding of PC, you can take a moment to celebrate. You passed one big step. But before you win your hearing (the second big step), there are several things you should consider or do in the time following the PC determination.

• You should consider what damages (back pay monies) and relief you would receive if you won your hearing.

What is your case worth? If you haven’t asked yourself this by the point you’ve reached a probable cause decision, you should definitely do so. You are at a serious juncture. Going forward, you must make serious decisions, and possibly serious investments of time and expense, into your matter. Before you make these decisions and investments, it makes a lot of sense to figure out what you stand to gain in you win.

You could stand to gain considerable monies and relief if you win. With that said, some parties (despite a PC finding) stand to gain very little at the hearing. In any event, if you are assuming your case is worth hundreds of thousands, or millions, of dollars, chances are you are hugely overestimating what you stand to win.

The main things the ERD can award you if you win your hearing are the following: (1) reinstatement or placement in the job at issue (assuming you want that); (2) repayment of your attorneys fees (assuming there are any); and (3) payment of net wages (“back pay”) lost as a result of the employer’s discrimination.

I have a post here that describes, in the Section Titled “Damages (Monies that May Be Won),” how you can calculate back pay estimates.

• You should consider what your costs are going forward.

Costs? you may ask. Yes, costs. If you want to win your ERD hearing, you will have to invest some of your own money to do so. Even setting aside legal fees (which you wouldn’t have to pay if you didn’t retain an attorney, or if you retained one on a contingency-fee basis), there are other costs you’d have to pay if you want a realistic chance to win your hearing. These costs include: (1) deposition costs (ranging from about $200 to $750 per deposition); (2) expert witness costs (e.g. if you want to win a disability discrimination claim, you must have a medical provider testify- some doctors charge over $1,000 per hour for their time); and (3) witness fees, travel costs, copy costs, and other miscellaneous costs.

Up until the PC determination, your ERD complaint may have been a low-cost affair. But if you want to win your hearing, you’ll probably have to pay some significant costs between the time of the PC determination and the conclusion of the hearing.

The employer will have to pay significant costs as well. Because of this impending financial pressure on both parties, following a PC determination it is common for the parties to discuss settlement or attend mediation.

• You should consider whether to attend mediation (if the employer is also willing to do so).

After a PC termination, the ERD will offer you and the employer an opportunity to mediate- that is, to have a settlement-negotiation session conducted by a mediator. (The mediator is an ALJ, although not the one assigned to your hearing).

Mediation is usually a good idea for both parties. Employee-clients I’ve represented usually agree to go to mediation. Some employers will agree, some will not. If your opposing employer agrees, you should consider mediation.

However, before going to mediation, you should figure out how much your case would be worth if you won your hearing; there are several other important things you should also do before going to mediation.

I have a post about preparing for ERD mediation here.

• You will probably have to respond to written “discovery” requests in the time leading up to the hearing.

After the PC determination- and in the time leading up to the hearing- you will have several important requirements to follow. One big requirement is your obligation to respond to “discovery” requests- that is, written requests from the employer that you are required by law to respond to within 30 days.

There are three common forms of written discovery: (1) interrogatories (written questions) that one party asks and the other party has to answer; (2) “requests to admit” (numbered statements of proposed facts) that the answering party must admit as true or deny; and (3) document requests, where the responding party must turn over copies of important documents (e.g. performance reviews, disciplinary documents, medical records, etc. etc.) to the requesting party.

Discovery is serious business. If you have been served with written discovery requests, you will probably recognize that you’ve entered a new realm of legal formalities. There are more procedural requirements and legalese involved than what you encountered earlier during the ERD investigation phase. There are also legal deadlines and obligations, and if you violate them, there are potential sanctions and penalties.

If you are served with written discovery requests and want to discuss them with an attorney, please don’t wait until day 29 of your 30-day deadline period to do so!

You should also consider filing your own discovery requests (or having an attorney do this), so you can require the employer to provide documents and answers to questions that you want to request. There is a limited period in which you can issue discovery requests- if you wait too long, you may miss out on this opportunity.

• You will probably have to have your deposition taken in the time leading up to the hearing.

If you and the employer don’t settle your case after the PC determination and your case proceeds to a hearing, sometime prior to the hearing the employer will probably require you to attend a deposition.

A deposition is a question-and-answer session conducted by an attorney (e.g. the employer’s attorney), who questions a witness (e.g. you). If you are provided with a notice of deposition, you are required to attend. At the deposition, you are required to provide truthful answers under oath. A court reporter is present at a deposition, and transcribes a record (transcript) of everything that is stated . (The transcript- which you will need to prepare for your hearing- is the biggest deposition expense, and what pushes the total costs of a deposition into the hundreds of dollars).

It is unusual for an ERD case to proceed to a hearing without the employer conducting a deposition of the complainant-employee. Often, there are several persons who are deposed in a case. For example, an employee-complainant may decide to depose the supervisor and HR rep who terminated his employment, to see (in advance of the hearing) what answers those important persons will give to important questions. Your matter may need several depositions in order to thoroughly prepare for your hearing and give yourself the best chance to win.

• You will have to submit a witness list and exhibits within 10 days of the hearing, and follow any other deadlines established by the ERD and ALJ.

If your case proceeds to a merits hearing, no later than the 10th day before the hearing you must provide the ALJ with (1) a list of all the witnesses you may bring to the hearing; and (2) copies of all the exhibits (i.e. important documents) you intend to use at the hearing. To prepare for this, you may have to sort through mounds of documents and phone many prospective witnesses. Make sure you allow yourself enough lead time before the witness and exhibits deadline to make these sorts of preparations.

After your PC determination, you will receive a packet of information from ERD which describes the requirements and deadlines above, as well as other legal requirements. Please read those documents carefully, and schedule all referenced deadlines.

• You will have to prepare for the ERD hearing, including witness arrangements and organization of documents and exhibits.

If you wish to attend and win your ERD hearing, you will need to make several important preparations in the time leading up to the hearing. Namely, you will need to review and organize all your important documents and deposition transcripts, and you will need to plan arrangements and questions for witnesses. These detailed preparations are beyond the scope of this post, and will not be described here.

You can refer to Section I. of my post about preparing for an unemployment hearing, to get a general idea of the kinds of preparations you could make for an ERD discrimination hearing (e.g. preparing documents, preparing for witnesses, etc.). Please note that, while an unemployment hearing is similar to an ERD discrimination hearing, there are several large and important differences between these two types of hearings. Thus, the information in Section I referenced above- like all the information in this blog- is intended to give you ideas and information to consider, but is not legal advice that applies to your specific situation. Only an attorney can provide legal advice for your particular circumstances and your particular hearing.

• You should consider whether to get an attorney.

It is very difficult for a complainant-employee to win an ERD hearing without an attorney. (Even with an attorney, an ERD hearing is by no means a walk in the park to guaranteed victory). An attorney can improve your odds of success, and help you present your case in the an effective and legally- appropriate manner.

If you have a chance to consult with an attorney for free- many Wisconsin employee rights attorneys, including me, offer free phone consultations- it is definitely worth your time to do so. An attorney can help assess the potential advantages and disadvantages of your case, and potential monies that could be gained or lost.

Whether or not you retain an attorney and pay out-of-pocket fees (if any are charged) is an important decision. I have a post here about important questions to ask when you are considering retaining an attorney.

Ultimately, you must consider the costs of retaining an attorney versus the potential benefits that attorney can offer. There are several activities described above- particularly, written discovery, depositions, and preparing for and attending a hearing- where an attorney could offer considerable value.

Conclusion

Hopefully, the information above is of help to those of you who have received a probable cause or no probable cause decision from ERD. Again, this information is not legal advice, and cannot replace the informed advice of an attorney who has reviewed your specific circumstances. But I do hope this information demystifies some uncertainties you may have, and gives you a clearer idea of what’s to come, and what are some important things for you to think about following your PC or NPC determination.

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.

For more information about Wisconsin employment lawyer Michael F. Brown and Peterson, Berk & Cross, S.C., please visit http://www.pbclaw.com/mb.html.

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Employees, employers, retirees and everyone else should check out this outstanding post by Professional Life Coach Tim Brownson: “5 Questions That Will Change Your Life.” Mr. Brownson arms readers with 5 questions that you should ask when facing any important life decision- I should note, these questions directly apply to any employment dispute or litigation that you are considering.

The magic questions are these:

1. What Else Can This Mean?

2. Who Can Help Me?

3. What Am I Grateful For?

4. What’s My End Game?

5. What Can I Learn From This?

I won’t cover each question in depth- you should definitely read Mr. Brownson’s article for the descriptions.

But what I will say is that each and every one of these questions are extremely important to ask yourself when you have an employment dispute.

Almost everything I have written in this blog has been an attempt (without knowing) to address these fundamental questions.

Here’s one of myriad examples. If you are an employee and considering whether to file an employment discrimination complaint, have you considered Mr. Brownson’s question # 4, “What’s My End Game?” That is, have you really thought to yourself: “What do I want to accomplish with a legal complaint, and can a legal complaint accomplish this?”

If you haven’t thought about this question, you’d better do so, before you go ahead and file a discrimination complaint and face unknown consequences. As Mr. Brownson puts it, “Would you set off in your car with no idea where you were going, why you were going there or when you were likely to get back?”

Probably not. But people do this all the time with legal claims! It is common for people to file a legal complaint first, and then learn how things “end” second. It’s a much, much better idea to reverse this order. That is, you should learn about the possible “ends” that can occur from filing a discrimination complaint (or any legal complaint) before you file the complaint and begin the legal process.

(By the way, I have a post here where I do my best to explain what the end game or results of a Wisconsin discrimination complaint could be, and what factors a WI employee should consider before filing a discrimination complaint; I have another post here about what factors I think make a potential legal claim a “good case” and more likely worth pursuing).

As a final note, no matter how bad your employment situation, keep in mind Mr. Brownson’s question #3: “What Am I Grateful For?” As a blogger and individual trying to make sense of the world, I am grateful for his post!

From our perspective as workers, we should be grateful- no matter what has happened to us- that at this moment we are alive and have the opportunity to influence our destinies. Whether that means pursuing a legal action, or not pursuing a legal action, is a matter of educating ourselves and making informed decisions. Reading Mr. Brownson’s article and considering the 5 questions will go a long way to educate and assist us in making such important life decisions.

DISCLAIMER: The information in this blog is NOT legal advice, nor does it establish an attorney-client relationship between you and Employee Rights Lawyer 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.

For more information about Wisconsin employment attorney Michael F. Brown and Peterson, Berk & Cross, S.C., please visit http://www.pbclaw.com/mb.html.

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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 more here about keeping good documentation).

Just as important, please do not write on the document, or otherwise alter it.

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 “This is a f#$% LIE!!!!” (I only exaggerrate 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.

For more information about Wisconsin employment attorney Michael F. Brown and Peterson, Berk & Cross, S.C., please visit http://www.pbclaw.com/mb.html.

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There is an interesting article at law.com about employers who spy and use surveillance on employees who are on medical leave.

The employers’ main argument boils down to this: many employees abuse medical leave, and surveillance is needed to bust the wrongdoers, some of whom are busted while bowling or otherwise doing highly questionable things while on medical leave.

The employees’ main argument: surveillance of employees is over-intrusive, and just because an employee on medical leave is ”caught” doing an everyday task (e.g. mowing the lawn) doesn’t mean the employee is faking a medical condition (e.g. faking the panic attacks that the doctor recommended a week off of work to attend to).

In my own observation, the employers I’ve encountered who conduct surveillance of employees are usually (1) large organizations; (2) conduct surveillance of a LOT of employees (not just those who raise “suspicion” or are tipped off as malingerers); and (3) before getting evidence either way, the employers are over-eager to assume the worst and to ”bust” employees.  These employers’ agenda is to distrust first, and then make observations to fit the theory.

This problematic worldview is addressed in the article by employer-side attorney Mark Toth (who authors an excellent employment law blog for Manpower, by the way).  According to Mr. Toth, “It really comes down to: Don’t assume anything… There is more than meets the eye. And if you’re an employer, act once you have the facts, but not before.”

The same is true if you are an employee.  If everything is going fine with your employer (or you have no concrete proof to support suspicions to the contrary), do not mess things up by injecting distrust into the equation.  Do not tape-record your boss just because you can, or just because you think she might be up to something.

Only if your employer has conducted tangible, specific actions to warrant your distrust- e.g. they did not pay you promised wages and are denying they made their prior promises, they make false performance allegations about you a few weeks after you had surgery, etc.- should you consider surveillance as a potential option.  (And even then, you must consider whether the applicable laws in your State permit surveillance).

In my admittedly biased view of the employment law world, employers are highly sophisticated in playing the game, so to speak.  Employers are well-versed in the methods of setting up documentation trails, setting up surveillance, and taking other measures to terminate an employee and reduce the employer’s potential liability.  The problem, to me, is not in these measures themselves.  The problem is in the way these methods are commonly used: they are too often used habitually, arbitrarily, and/or without prior evidence or suspicion to justify their introduction.

In my opinion, the article’s best message for Employers and Employees alike is this: Do not distrust instinctively or easily.

People who truly deserve distrust will make themselves known.  They will have shown you a pattern of specific, tangible behaviors that leave little doubt you have reason to distrust them.  But when you assume that general classes of people should be distrusted (e.g. “Employees will cheat FMLA if given the chance,” or “Corporate HR reps are evil”), your ensuing surveillance efforts are less likely to lead to objective truths, and more likely to distance you from the truth, and from others.

DISCLAIMER: The information in this blog is NOT legal advice, nor does it establish an attorney-client relationship between you and Employee Rights Lawyer 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.

For more information about Wisconsin Employee Rights Lawyer Michael F. Brown and Peterson, Berk & Cross, S.C., please visit http://www.pbclaw.com/mb.html.

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Does your job:

• Make you do things that you think are unethical?
• Subject you to abuse (verbal, physical, sexual harassment, etc.)?
• Rip you off (e.g. underpay you, deny your obvious need for medical leave, etc.)?

If you answered ‘yes’ to one or more of these questions, then you may well have a legal claim against your employer.  You may call a lawyer and check into that.

But more importantly, you may want to question why you put up with it, continuing to get slapped by the hand that feeds you.  There are other hands out there.  If you are fired or treated too adversely, you will be forced to find a new employer.  So why not start the job search now, when it’s already clear to you that your employer is acting against your interests?

I get phone calls from employees all the time who describe legitimate, painful hardships inflicted upon them by their employers.  So then I ask, “Are you looking for a new job?”

Disappointingly, often the answer is “No,” or “Not yet, but I plan on it,” or “No, because no one else would hire me.” 

As these answers show: many employees who are being treated unfairly do not react proactively.  When obvious trouble arises, they do not react by planning for the worst and sending out resumes, etc.  Rather, they spend a great deal of time: (1) internalizing the employer’s irrational criticisms (e.g. “Maybe I really am a lousy employee for getting cancer and having to take leave from work”); (2) futilely trying to debate the employer’s irrational criticisms (e.g. “Why are you giving me a ‘final warning’ for an ‘attendance problem’ when I’m taking leave for chemotherapy?  I’m going to file my third grievance against you guys if you fire me”); and/or (3) avoiding a job search, because they believe that no other employer would hire them anyway.

Such self-tormenting is sympathetic and understandable.  A conscientious person wants to examine criticisms and actions against them, to examine if the criticisms have merit, and if the person can improve things.  This is the natural reaction of a conscientious employee.  But it’s the wrong reaction.  If you encounter unfair conduct and see the writing is on the wall, you should not stick around to analyze or debate it.  Nor should you become paralyzed by self-doubts, such as “No one would want to hire someone like me, because I [fill in the self-defeating blank].”

You HAVE to get hired somewhere else.  So get over your doubts, NOW, and go and start doing the many things it will take to get hired.

The moment you recognize your employer has turned against your interests, get going with Plan B immediately.  Send out resumes and prepare a safety net to land on.  The same employer who unfairly denies your cancer leave may also unfairly decide to fire you. 

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.

For more information about Wisconsin Employee Rights Attorney Michael F. Brown and Peterson, Berk & Cross, S.C., please visit http://www.pbclaw.com/mb.html.

If you are an H-1B professional worker who is being underpaid wages, please know that you have legal rights. The information below describes your rights as an H-1B professional, and factors and options you should consider before taking legal action or pursuing your wages. (Please note this post does not provide legal advice- if you want legal advice, you should contact an attorney who is experienced with H-1B wage matters and talk with the attorney about your specific circumstances).

• Before you complain to the employer or file a legal complaint, consider what deadlines (statutes of limitations) are involved.

If you think you may bring a legal challenge against your H-1B sponsor employer because they have not paid your full wages or have otherwise treated you unfairly, please know that several deadlines (or “statutes of limitations”) apply to your matter.

First of all, if you are considering a wage complaint with the Department of Labor (DOL), there is a one-year deadline for filing such a complaint. A DOL complaint (as discussed more below) may not necessarily be your best or strongest claim, but because it is among your options it is important to take the one-year deadline into account.

You may have the option to file a civil wage claim in court, and several such wage claims have two-year deadlines. If, for instance, you filed a civil complaint on January 1, 2009 that included such a wage claim, you could only pursue the wage claim to recover unpaid wages dating back to January 1, 2007.

There may be other claims available to you that have longer deadline periods. Certain fraud claims may apply to your situation (separate from or in addition to wage claims as mentioned above), and such fraud claims may have deadlines up to four years or more.

The bottom line is this: (1) be aware that deadlines apply to your matter; (2) as soon as possible, you should learn about all the applicable deadlines, and your legal rights and options; and (3) make plans in light of those deadlines and options.

This does not mean that you immediately have to complain to your employer about unpaid wages, or take immediate legal action against your employer. For example, an H-1B employee may decide to delay legal action (and accept some losses of potential legal damages under statutes of limitations), because in the overall picture it is better the employee find a new employer and make an H-1B transfer to a new employer-sponsor before pursuing a legal action. Waiting a set amount of time may well be the best option under your particular circumstances. But it is never too early to learn about all your potential options and deadlines, so you can know the risks, make informed decisions and take well-timed actions from day one.

To learn more about the legal rights and deadlines that apply to your situation, you can consult with an H-1B employee rights attorney. Many attorneys (including me) offer free phone consultations to discuss an employee’s specific circumstances, deadlines and options.

• Consider the risk of retaliation, and any risks to your immigration status, before you challenge the employer’s underpayment of wages.

If your employer is not paying you the wages you were promised, then several laws may be violated, as is described below. Further, if your employer retaliates against you because you complained about unpaid wages, there are laws that prohibit retaliation as well.

However, just because a law exists (e.g. a law that prohibits retaliation, or a law that prohibits driving through a red light) doesn’t mean that people will obey that law (some people still run red lights, and some employers still retaliate against workers for making complaints about unpaid wages).

Before you complain about your unpaid wages, you should evaluate whether the employer may retaliate, and you should make sure you are in a secure position under immigration law (e.g. at a new job, with your H-1B lawfully transferred).

If you are considering a complaint against your current employer, consider how your employer may react, and how strong the risk of retaliation is. If the risk of retaliation is high (e.g. if the employer has threatened visa workers with job termination and deportation if they make complaints), then you should consider the option of finding a new employer/visa sponsor before you pursue a complaint. After you have transferred to the new employer, you will be in a better position to start a legal action against the underpaying employer.

If you do decide to transfer to a new employer, you should strongly consider consulting with an immigration attorney: that is, an independent immigration attorney who was not retained by the underpaying employer and who does not represent that employer’s interests.

In my review of H-1B workers’ potential wage claims, I work with immigration counsel who is specifically involved to advise the H-1B worker on his or her visa issues and interests. That attorney has no affiliation with the original (underpaying) employer, and is working only in the H-1B employee’s interests. An attorney like this- one who is retained only for your interests- can advise about the legalities of an H-1B transfer to a new employer and other issues, and you don’t have to worry about the attorney owing any duty to your former employer, or having any conflict of interest.

If your wage complaints concern a former employer, and you already transferred your H-1B visa to a new (and hopefully more honest) employer, these are probably better circumstances for a legal action. When you have a new employer and your immigration status is intact, you can pursue your unpaid wages from your former employer with far less risk of retaliation.

The bottom line is this: before you pursue any complaint about an employer, you should consider the big picture and consider any risks of retaliation or risks to your immigration status. An attorney can help you plan and navigate through any such risks, and help you transfer to a new employer before you pursue legal action against the underpaying employer.

• Consider the laws and legal rights that protect H-1B workers.

If your H-1B employer has underpaid you or otherwise treated you unfairly, there are several types of laws that may potentially be violated. The laws include: (1) immigration law and Department of Labor (DOL) regulations (e.g. regulations requiring that the “prevailing wage” be paid to H-1B workers, or regulations requiring that the employer not deduct certain expenses from H-1B workers’ paychecks); (2) federal overtime and minimum wage laws; (3) State wage laws; and (4) various fraud laws.

Here is a link to immigration regulations that address an employer’s obligations to you. These laws include, but are not limited to, the employer’s obligations (1) to pay you the prevailing wage or actual wage; (2) to provide you comparable benefits (health insurance, etc.) as U.S. workers are provided; (3) to not make unfair deductions from your paychecks (e.g. to cover certain visa costs, rent deductions, etc.).

The DOL provides summary information about H-1B employees’ rights at this webpage and this one as well.

As DOL’s web page indicates, H-1B workers can file wage complaintsto DOL – you can find your local DOL contact information here, to learn more about filing a wage complaint.

Please note that the DOL’s authority is limited. For example, while you can submit a complaint to DOL and they can potentially determine that the employer violated certain wage or immigration laws, the DOL does not have authority to consider several other types of claims (e.g. fraud claims, State wage law claims), and cannot award several remedies and damages (monies) that you could pursue with a complaint in court.

This is not to say you should file a complaint in court, or should not file a complaint with DOL. Rather, you should know there are advantages and disadvantages in pursuing a DOL complaint rather than a court complaint. The same is true vice versa.

Again, you can benefit from having an H-1B rights attorney review your circumstances, advise you about various options, and the advantages and disadvantages of each.

• Keep Documentation.

If there is any possibility that in the future you may pursue your unpaid wages or pursue a legal complaint, you must keep documentation. Specifically, you should: (1) save all your immigration documents (Labor Certification Application, employer’s letters to government, etc.); (2) save all your payroll-related documents (paycheck stubs, W-2 forms, copies of timecards, copies of work schedules, copies of employer’s notes and letters about wages, etc.); (3) save copies of employment contracts, memos, letters, emails and any other documents from the employer that relate to your wages, employment status, visa status, discipline, or job termination.

You should also keep a journal. In the journal, you should write down dates, names, and descriptions of important events. For example, your journal should describe: (1) any threats the employer made (e.g. if someone threatened to deport employees who complained about being underpaid, you should write down the name and job title of the person who made this threat, the date the threat was made, and a description of exactly what was said); and (2) any complaints or objections that you made to the employer about unpaid wages or unfair treatment (e.g. on X date, you complained to Manager Y about being underpaid and having unfair deductions from your paycheck). If anything happens during your employment that you feel is unfair or important, you should write down that information in a journal; otherwise, you may forget important details later.

• Consider the various actions you could take.

An H-1B worker who has been underpaid may take one or more of the following actions: (1) research internet information (e.g. DOL’s websites, legal websites and blogs, etc.) about your legal rights and options; (2) contact an H-1B employee rights attorney to discuss your legal rights and options; (3) contact an immigration attorney (other than any attorney your employer secured or who has a conflict of interest with you) to discuss any visa transfer or immigration concerns you may have; (4) contact DOL and/or a State wage-enforcement agency to discuss your legal rights and options; (5) assuming there is no significant risk of retaliation, you could contact the employer (through an attorney or on your own) to try to resolve your matters without legal action; (6) file a legal complaint with DOL or a State wage-enforcement agency; and/or (7) file a legal complaint in federal or state court.

Each of these actions has potential advantages and disadvantages, and an attorney or government adviser could help you clarify your deadlines, options and plans.

If you have felt trapped or taken advantage of, please know there is light at the end of the tunnel. You have legal rights, and potentially strong rights at that. Regardless of whether you pursue your unpaid wages, you should do all you can to ensure you have employment where the employer respects your H-1B rights, and human rights. I wish you the best.

Additional Information

For more H-1B employee rights information, please visit the blog www.h1blegalrights.com.

To learn more about H-1B rights and options, please see these posts:

• “Employee Tip: If You’re an H-1B Worker Being Underpaid Wages, Consider These Things”
• “5 Reasons Why an H-1B Employer Would Want to Reach Settlement With An Underpaid Employee”
• “H-1B Workers’ Fears vs. Fighting for Your Rights”
• “FAQS- If You Were Underpaid as an H-1B Worker and Are No Longer in the U.S.”

For information about H-1B Rights & Immigration Rights Attorneys Michael F. Brown and Vonda K. Vandaveer, please visit here.

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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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 produce them to you later, or will agree with your undocumented recollections of events. 

More about documentation…

1. Keep Documentation/A Journal.

If bad things or important things are happening, document those things.  Keep a Journal.  Each time something bad happens, write down: (1) exactly what happened, or exactly what was said; (2) the date and time it occurred; and (3) the names and titles of the people involved.

2. If You Complain to Management About Something, Do It In Writing.

If you are thinking of making a complaint to management (e.g. about sexual harassment, unpaid wages, etc.), you should weigh the risks of retaliation and consider other factors before going forward with a complaint.  But if you do decide to go ahead and complain, by all means make sure that complaint is not just spoken, and that you create documentation or a recording of what was said. 

If you complain to a manager in person, that is fine, but follow it up with an email recapping what was said.  You should provide management with emails, letters or other written correspondence that documents what your complaints are.  Alternatively, if you are a Wisconsin employee, it is lawful in our State to make a tape recording of a conversation, so long as at least one party to the conversation (i.e. you) knows it is being recorded.

If you do not document or record your complaints and important communications with the employer, you are at high risk of the employer: (1) not recalling exactly what was said; (2) remembering things in a way that is more favorable to them than what actually occurred; or (3) denying you complained at all.  Please do not assume people will remember or own up to your version of events.  Document your version, so there can be no doubt what you communicated. 

3. Save Important Documents.  If your boss sends you a discriminatory email, print and save it.  If the employer sends you a letter about discipline or termination, save it.  If you are being underpaid wages, save your payroll stubs, copies of your time cards, and any other payroll information.   You should save copies of all important documents that may be remotely important to your concerns (unless there is a company policy explicitly prohibiting this).  Err on the side of keeping a document, if it could in any way conceivably be used in a legal action. 

All too often, I speak to prospective clients who lost or threw away material documents that could have helped them immensely.  Their mistake is understandable- in everyday life (where litigation is not an immediate concern), it helps people stay organized to reduce clutter.  But if you are being underpaid wages, your pay stubs are no longer clutter, they are valuable assets.

If you feel there are any potential legal concerns that could arise with your employer, please keep the tips above in mind, and be constantly aware of the value of keeping a journal and documentation.

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.

For more information about Wisconsin Employee Rights Attorney Michael F. Brown and Peterson, Berk & Cross, S.C., please visit http://www.pbclaw.com/mb.html.

This is a tip not only for employees, but also for employers and anyone else who is thinking about litigation.

If you are thinking of filing a civil lawsuit, or gearing up for a vigorous defense of a lawsuit (e.g. “we’re not going to pay that s.o.b. a dime”), you should know that starting or prolonging a lawsuit is only good for a select few things (see below).

What a lawsuit is NOT good at doing is proving a “principle,” or obtaining any type of emotional satisfaction.  To the contrary, the longer the litigation goes, both parties in a lawsuit usually become more and more emotionally-drained.  Usually, both parties, and especially the defendant/respondent, become more financially-drained over time.  (This disadvantage does not apply to the parties’ lawyers, who often get paid more the longer things go).

Filing a lawsuit can accomplish some important things: namely, filing a lawsuit can get the plaintiff paid.  The plaintiff can be paid money to replace money that was lost, or money paid to compensate the plaintiff for an injury suffered.  Filing a lawsuit can also help leverage a settlement in which important non-financial terms can be agreed to.  For example, in the context of an employment matter settlement, an employee litigant may be able to obtain a letter of reference, the employer’s agreement not to disparage the employee or provide negative reference information, etc.  The foregoing non-financial and financial goals can often be achieved through a lawsuit.

However, if you pursue a lawsuit because you are searching for a result in which you feel “vindicated” or prove a “point” or “principle,” you are almost certain to be disappointed.  And you’ll wind up lighter in the wallet than civil litigants who set “principle” aside. 

Having opposed hundreds of employers, I have seen many assess their financial risks and agree to reasonable settlements, but I have yet to see one opponent admit they were wrong, or say they were sorry.  While a judge or jury may find your opponent was wrong, litigants are often disappointed to find that actors in the legal system (investigators, judges, juries, etc.) do not feel the same passion as you about the alleged injustice done.  Rather, the legal world- as it should- usually treats litigants’ matters in an independent, logical manner and if you are victorious you may be paid (even paid well), but there will be no glowing moment of emotional recognition or “vindication.” 

If you want to fight something out of “principle,” you can do that by writing your congressperson, your local newspaper, a community organization, etc. and taking action (lobbying, volunteering, etc.) to remedy the injustices you perceive.

Don’t pursue or prolong a lawsuit out of “principle.”  Prolong a lawsuit only when doing so is the best means to achieve a tangible, realistic result.

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.

For more information about Wisconsin Employee Rights Attorney Michael F. Brown and Peterson, Berk & Cross, S.C., please visit http://www.pbclaw.com/mb.html.

If you are an employee in Wisconsin and feel you are (or were) being sexually-harassed, you should know the following:

(A) Know how the law defines sexual harassment;

(B) Keep proof (documentation or recordings);

(C) Learn your employer’s policies before complaining or taking action;

(D) Do not act angrily or righteously;

(E) Before complaining, consider the risks of retaliation;

(F) Proactively arrange for Plan B (e.g. a new job, or transfer to different boss); and

(G) Don’t quit because the employer tells you to. 

This information is described in more detail below. 

(A) Know what sexual harassment is, as defined under the Wisconsin Fair Employment Act (WFEA).

Sexual harassment is when an employee faces unwelcome actions based on the employee’s sex.  Under the Wisconsin Fair Employment Act (WFEA), there are three types of sexual harassment:

(1) Sexual harassment by an owner or supervisor.  For example, when a boss makes unwelcome sexual comments to a subordinate employee, or fires an employee for complaining about the comments.

(2) Conditioning employment terms on an employee’s response.  For example, when a boss requires an employee to date the boss in order to get a promotion.

(3) When coworkers create a hostile work environment, and the employer permits it.  For example, when male coworkers joke about a female coworker’s sex life, and management doesn’t do anything to stop this conduct after receiving complaints about it.

If you are experiencing one of the three types of conduct above, you are being sexually-harassed.

The following conduct is NOT sexual harassment or discrimination:

- Sex-based actions or comments that are mutual, i.e. actions or comments that are “welcomed” by both employees.

- Harassment that is NOT based on sex or other protected characteristic/class of discrimination law (race, disability, etc.).  For example, it is not sexual harassment or discrimination when you have an abusive boss who yells at everyone, and generally treats people badly regardless of their gender or protected class.  If you are harassed by an “equal opportunity jerk,” you do not have a legal claim in Wisconsin.   (Some other States have “anti-bullying” laws that DO protect employees from abusive behavior, regardless of the reason for the abuse).

If you are being sexually harassed as described above, you may have an actionable legal claim.  Before you should pursue or complain about legal action, it is important you make sure you have proof of the harassment.  You may need that proof to improve things at your job, to reach a reasonable severance, or to pursue a legal claim, if it ever comes to that.  

(B) Keep Proof: Keep a journal, save important documents, document your communications, and/or make recordings.

It is very important you create and/or keep documentation that contains proof of the harassment.

(1) Keep a Journal.  You should keep a journal with dates, descriptions of the issues that occurred (e.g. negative actions or statements made against you, complaints you made, etc.), and the names of the employees involved.

(2) Keep copies of important documents.  You should keep copies of documents that contain (a) evidence of sexual harassment, (b) evidence you complained about harassment, or (c) evidence you were treated adversely (e.g. demoted, fired) because of harassment-related issues.    For example, you should keep copies of any sexually-explicit emails, letters, or text messages that you receive from your harasser.  Also, keep copies of any written complaints you make about the harassment.  Finally, in case the employer terminates your job or retaliates against you for complaining about sexual harassment, you should keep copies of all performance reviews, disciplinary documents, and emails that concern your performance or alleged problems at work.

(3) If your employer is acting in a suspicious or untrustworthy manner, consider tape-recording their conversations with you.  When the employer is acting in an untrustworthy manner, consider tape-recording/digital-recording their discussions with you.  In Wisconsin, it is lawful to tape-record a communication between two parties, so long as one of the parties (in this case, you) is aware the recording is being made.  

(C) Learn your employer’s applicable policies before complaining or taking action.

You should review the employer’s policies that relate to sexual harassment, discrimination and making complaints about the same.

For instance, your employer may have a discrimination policy that tells you what to do if someone is sexually harassing you.  The policy may tell you a specific department and phone number to call, or specific procedures to follow.

After you review the policy, and beforeyou take action (e.g. call the designated hotline), you should consider the potential risks of retaliation, as discussed below.   All employer policies will say that the employer will handle complaints objectively, conduct even-handed investigations, etc.  But whether the employer does these things, and actually acts fair, depends on the people involved.  Before you act, you should learn who these people are, what they are like, and whether their prior conduct has been fair.  This is just as important as learning about the policies. 

If you decide to take a particular action (e.g. make an internal complaint), it is important you follow the employer’s policies. Even if you think following a policy will not help you, it can help you later to show you took all the steps your employer’s policy said you should take.

(D) Do not react to the harassment with angry or righteous behavior.

When an employer does something negative, it is important you do not react negatively. Some employees who have been wronged will react with angry or righteous behavior, and say or do something that makes things worse.

In whatever way you choose to respond to an employer’s negative conduct- by making a complaint, looking for a new job, or trying to work with the employer and improve in criticized areas- it is important you remain positive. You should look to effectively solve problems rather than dwell on how you have been wronged.

(E) If you wish to complain to your employer about harassment, you should first consider the risk of retaliation, and other factors below.

Before you decide to notify your employer they did something wrong, you should carefully consider several factors.

- Consider whether the employer may retaliate.There are laws that prohibit retaliation, but that does not mean the employer will not retaliate. You should consider the temperament of the employer personnel involved with your situation. If those persons are usually fair-minded, then the chances are better they will respond to a complaint fairly and open-mindedly. If those persons typically react angrily to employee concerns, then the risk of retaliation is higher, and you should take that into account when considering the pros and cons of complaining.

- Seek advice from a knowledgeable source. You could speak to a union representative, an attorney, and/or a trusted former employee who has successfully responded to similar situations. Take their advice into account, and consider the pros and cons of different options, before you act.

- As mentioned above, check the employer’s policies, to see if they identify people to talk to, and proper procedures to follow. If you decide to make an internal complaint, make sure you contact the people the policy designates, and follow the appropriate procedures.

- Do not discuss your problems with employees you do not need to communicate with. Unless an employee is someone who needs to know about your issues, there is no reason to discuss your concerns with that employee. Even coworkers who are friends can inadvertently spread your information in a harmful way. People will talk more than you think: be careful.

- When you communicate with the employer (i.e. with the appropriate representative), use language that is factual and positive. If you communicate with any employer personnel about your concerns, you should talk to them politely, stick to the facts, and communicate with them in a positive and professional manner (even if they do not do these things). Think about who your audience is, and how they may react. If the employer representative acts angrily toward you, do not take the bait. Do not “tell off” that person, or raise your voice: doing this may lose your job, no matter how right you are. The way you communicate is just as important, or more so, than the content of what you communicate.

- Be sure you communicate your concerns in writing (in addition to any spoken complaints). If you decide to inform your employer about problems at work, it is important you do so in writing.

It is fine to communicate concerns in person or over the phone. However, it is important your concerns also be stated in writing. You may later need proof that you communicated your concerns to your employer. The employer’s recollections of spoken conversations may be very different than your recollections. For this reason and others, it is important that your major concerns are not just spoken, but are also communicated in writing.

Once you have decided on the appropriate information to write, you should send the employer an email or other document (e.g. fax, certified letter). The document should be sent to the appropriate person(s) named in the employer’s policies, to your immediate supervisor, and to an HR rep.

Your written/emailed communications should be as natural as possible. For example, if you typically email your supervisor about issues in the office, then it may be best to email the supervisor (rather than sending a certified letter) about work problems relating to the sexual harassment.

(F) Proactively arrange for Plan B (e.g. a new job, or transfer to different boss).

If your employer is giving signs they are going to fire you (e.g. give you a “final written warning” for a nitpicky issue), by all means, starting arranging for Plan B.  Send out resumes, talk to others who can get you a job in a different department, etc. etc. 

All too often, employees who are being treated unfairly (e.g. are being disciplined in retaliation for their harassment complaint) will put all their energy into defending themselves against the employer’s actions, and not put energy into proactively arranging for a “plan B” for the event they ARE fired. 

Remember, the employer holds the ball.  They can be 100% wrong, but they are 100% in control of your job there existing or not.  So are you.  It is fine to try to work things out and keep your job, but in case you can’t work it out, you should proactively arrange for other opportunities. 

(G) Don’t quit because the employer tells you to.

Harassing employers often try to force the harassed employee to quit.  Commonly, the employer will try to get the employee to sign a resignation letter, and will tell the employee that it is “better” to resign.  From a legal perspective, this is dead wrong.  If you quit your job, it makes it much more difficult for you to get unemployment benefits, and can make it much more difficult for you to bring a legal claim (for sex discrimination, etc.).  If the employer tells you to resign, obviously they are the ones who made the decision for your employment to end: don’t let them do a final injustice to you by making you think you should sign a resignation letter.

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.

For more information about Wisconsin Employee Rights Attorney Michael F. Brown and Peterson, Berk & Cross, S.C., please visit http://www.pbclaw.com/mb.html.  

If you are an employee thinking about pursuing a legal claim (e.g. a discrimination charge against your employer), it is important you feel passion and emotion for that claim and your belief in it.   However, you should also take time to look at the claim from a different perspective.   Treat that legal claim as if it were stock or a money market account into which you were making an investment.

If you pursue a legal claim, like putting funds in stock, know you will have to make an Investment.  You may invest your money, your time, your work, and/or your emotion.  Sometimes, a lot of all of these.  Learn what investments you will likely have to make.

You should also learn the range of possible Results for that investment.    In the case of a money market account you are considering, you may learn it has a fixed percentage of interest, and be able to calculate $X-$Y earnings if you invest in that account.  In the case of a legal claim, if you invest in and win that claim, your Results could be about $A-$B in damages.  If you lose, your Result could be having to pay the opponent about $X-$Y in costs.  Know what’s on the table, so to speak, before you start gambling or assuming risk (whether high- or low- risk).

Understand there is Risk.  There is some likelihood you could wind up in the hole, e.g. lose your legal case and pay costs to the opponent.  On the other end, there is some likelihood you could get an excellent return- e.g. a high settlement payment- on your investment.

You can assess risk and results through Education.  How many employees win this type of claim?  Settle?  Are there statistics available?  What results does an attorney or judge say s/he typically sees for a case similar to mine?  What are all my case’s positive factors (e.g. documents supporting material points) and negative factors (e.g. witness testimony against me)?  How do each of my case’s positive factors and negative factors affect my overall risk?

With education, your choices will be Informed: you will know that if you pursue this legal claim, you will likely have to Invest $A-$B, the Risks are L, M, N, and the possible Results are gaining about $W-$X, or losing about $Y-$Z. 

Some legal claims are “safer” and worth pursuing- namely, a low-risk, low-investment claim with a large financial result on the table.  Other claims are not worth pursuing- a high-risk, high-investment claim with a small financial result on the table.

Many potential legal claims are in the middle.  

After you educate yourself about a potential legal claim’s Investments, Risks, and Results, that claim may conceptually appear similar to a money market (a low-risk place to invest high amounts of money, but with relatively small returns).  Or the claim may seem like promising but unpredictable stock (e.g. a high-risk, medium-investment stock with a potentially substantial return/result).

The main thing is that you educate yourself about the main investments, results and risks at issue, and keep these factors in mind when making the decision whether to proceed with a legal claim. 

Do not ignore, for example, the fact that a legal claim would require investments of your time or money.  If an employee believes he will drop off a stack of documents at his new attorney’s office, and will come back a few weeks later to pick up the good results (this is not much of an exaggeration for certain [rare] prospective clients I’ve had), then the employee is overlooking the reality of investment.  That one usually has to invest significantly into something, in order to get a return that is significant. 

If you put 10 cents into a money market account, you may earn 1 cent of interest.  Or you may decide to invest $2500 and thirty hours of work on a given legal claim that has (1) 50% odds you’ll win $10,000 to $25,000; and (2) 50% odds you’ll lose and have to pay $1,000 to $3,000 in costs to the opposition.  Should you make the investment?  I can’t say.  I can just tell you things tend to work out much better when employees consider the factors above.  When a legal claim is viewed as an investment and not just viewed from the angle of its emotional factors or “rightness.” 

A legal claim is like a financial investment, and the civil legal system can be very good at rewarding investments.  Much better than it is in providing apologies, providing “vindication,” “proving a point” or satisfying other such emotional goals that are rarely attained and usually causal of waste in litigation.

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. 

For more information about Wisconsin Employee Rights Lawyer Michael F. Brown and Peterson, Berk & Cross, S.C., please visit http://www.pbclaw.com/mb.html.  

Employees who feel wronged by an employer often want to know whether they may have a legal claim worth pursuing, i.e. “Do I have a case?”   This post will identify common attributes of good employee rights cases.  (Please note this post cannot answer whether it is advisable for you to bring a legal claim for your situation: if you are seeking advice about whether to pursue a legal claim, you should talk to an experienced employment law attorney about your specific circumstances).

Generally speaking, an employee rights case is more promising, and more worthwhile to pursue, when several or all of the following factors are present:

• The employee’s matter involves: (1) a loss of wages or benefits; (2) an adverse action (e.g. termination, harassment) taken against the employee; and (3) the adverse action was because of a protected characteristic under discrimination law (e.g. the employee’s disability, age, gender, etc.) OR was because of the employee’s complaints/ “whistleblowing” about unlawful conduct.

Generally speaking, an employee has a better potential legal claim if she has lost wages or benefits due to the employer’s actions.  The wages may have been lost due to the employer’s failure to follow wage law, e.g. if the employer failed to pay overtime wages owed under FLSA overtime law.  Or, wages and benefits may have been lost as a consequence of an employer’s adverse action, such as termination, demotion, etc.   As is described more below, the more monies that are lost, the more sense it makes to try to recover that money and invest time and expense in the legal system.

Another common factor of a good legal claim is that an adverse action was taken by the employer.  Adverse actions include: failure to pay wages, termination, demotion, suspension without pay, failure to hire, harassment, and/or making conditions of employment worse.  The more concrete and definable the adverse action, the better the potential legal claim.  For example, it is relatively easy for an employee to prove an adverse action occurred when his employer fails to pay a specific amount of wages, or when the employer terminates the employee and the employee has lost a specific amount of back pay since the termination.  On the other hand, if the employer’s actions are harder to financially quantify- if, for example, a boss “yells” repeatedly at the employee and reassigns him to a more difficult job that pays the same- that employee may have a basis to make a legal claim, but it’s harder for the employee to support the claim.  This is because for this situation (as compared to a job termination) it’s harder to prove that an adverse action occurred and what the specific financial losses or damages are.  The more concrete the adverse action and lost monies are, the better the potential legal claim.

Most of the clients/employees who I represent have been fired from their jobs, and they are seeking back pay dating back to the employer’s termination decision.  However, I should note that a job termination is not critical for several cases (e.g. unpaid wages, sexual harassment) in which the legal system can award large damages (e.g. thousands of dollars for unpaid wages or emotional distress) whether the employee was fired or not.

If an employee is pursuing a lawsuit contesting a termination (and seeking back pay), it is important there is proof that that termination was motivated by an unlawful basis.  There are two general types of unlawful terminations: (1) terminations based on the employee’s “protected characteristics” under discrimination law (e.g. based on disability, age, race, gender, military status, criminal record, or several other characteristics); OR (2) terminations based on the employee’s complaints/”whistleblowing” about unlawful conduct at work (e.g. the employee complained about the employer’s discrimination in the workplace, or its failures to pay workers’ overtime, or its fraud of shareholders, etc. etc.). 

For an employer’s termination decision to be unlawful, it must be more than merely unfair- it must violate a specific area of discrimination law, or violate a “whistleblowing” law.  Those specific laws are too numerous to run through here- if an employee wishes to pursue a termination-based claim, it is wise to contact an employment attorney (particularly when a free consult is possible) and run through the possible legal claims, if any.  

• The employee is within the legal deadline (statute of limitations).

If an employee is beyond her legal deadline, then her case obviously can’t be pursued no matter how good it is.  For example, an employee in Wisconsin has 300 days from an employer’s discriminatory action (e.g. date of discharge, suspension, harassment, etc.) to file a discrimination complaint.  If the employee is beyond the 300th day after the discriminatory action she wants to contest, then the right to pursue that claim is forever lost.

As another example, several wage claims (e.g. an unpaid overtime claim) have two-year statutes of limitations.  Say an employee wished to pursue overtime wages that he was not paid between January 1, 2005 and June 1, 2006.  If the employee filed a legal complaint for unpaid overtime on May 16, 2008, the employee, because of the two-year statute of limitations, could only pursue wages for the short period between May 16, 2006 and June 1, 2006.  With each day that passed, the value of the employee’s wage claim– no matter how strong the proof– would be increasingly diminished.

Also of note, some types of legal claims have very short statutes of limitations (e.g. OSHA retaliation claim at 30 days, Sarbanes Oxley whistleblower claim at 90 days).

Because of all this, it is important for an employee to evaluate legal claims and deadlines promptly.  Employees who have evaluated their legal claims early can make their legal claims and strategies stronger, and avoid the diminishment of claims and rights.

• The employee has lost (or will lose) a significant amount of wages, income, or other tangible monies.

The legal system is effective at some things (e.g. repaying financial losses) and not effective at others (e.g. “proving a point to the employer”).  Employees who have lost tens of thousands of dollars- for example, employees who were not paid wages owed to them for several months or years, or employees who were unlawfully discharged and out of work/income for several months or years- have tens of thousands of dollars “on the table,” so to speak.  If such an employee wins a legal claim, she will have a significant amount of tangible monies that the legal system can recognize and award to her.

However, all too often an employee will not have significant financial losses or potential damages, yet will rush ahead and file a legal claim.

For example, I commonly get phone calls from employees (prospective clients) in a situation like the following:

- The employee was fired, or otherwise treated adversely, by his employer.

- The employee filed a discrimination complaint with the Wisconsin Equal Rights Division (ERD).

- The employee endured 6-12 months or more of legal proceedings at the ERD.  Along the way, perhaps the employee was offered a financial settlement by the employer (say, $5,000), but the employee felt that amount was too low as compared to the wrongfulness of what the employer did.

- The ERD proceedings become more formal over time, and the employee is required to attend a deposition, or attend a legal hearing, etc.

- The employee calls me, only to hear me say (after his months of effort) that his legal claim has little or no financial value.  I inform the employee that the main financial award the ERD can award is lost back pay- i.e. income and out-of-pocket expenses lost as a result of the employer’s discriminatory actions- and that the employee has noback pay.  For example, if after the employee left the employer he started a new job the next day that paid more, then there is little or nothing that the ERD can award him.  It does not matter how bad the employer’s discrimination was, or how strong the employee’s proof of discrimination is.

These circumstances are counterintuitive for many employees, who understandably (but incorrectly) assume that their ERD case is financially worth more, the worse the discrimination or adverse treatment is.  In reality, the best indicator of an employment law claim’s value is usually the amount of monies an employee has lost. 

Again, if an employee has lost significant monies because of the employer’s actions, he or she has more on the table that can be won in a legal proceeding.  And this of course assumes that the employee has proof of legal violations that makes winning a possibility.

• The employee has strong evidence, i.e. documentation, witness statements and/or recordings that proves the employer’s unlawful conduct (e.g. discrimination, retaliation for wage complaint).

Obviously, the more proof an employee has of the employer’s wrongdoing, the better the odds the employee will win a legal claim or reach a favorable settlement. 

Good proof usually comes in the following forms:

- Documentation (e.g. the employee has copies of emails from her supervisor admitted her wages are underpaid, or making negative comments about her disability);

- Witness Support (e.g. a coworker who witnessed the employee’s termination meeting is willing to testify that the employer terminated the employer on a discriminatory basis, or in retaliation for the employee’s whistleblowing);

- Recordings (e.g. employee has tape-recording of HR manager threatening to fire the employee over his medical restrictions or wage complaint); and

- Suspect timing  or other strong circumstantial evidence (e.g. the employee was fired one week after returning from short term disability leave).

The better quality of proof the employee has, the stronger the potential legal claim.  It is not enough for an employee to be right: the employee must prove she is right and prove the employer violated employment law.

• The employee has proof of fraud or blatant falsifications by the employer (e.g. the employer gives documents to the government stating an employee will be paid $15.00 per hour, and the employee has payroll stubs confirming the employer only paid him $8.00 per hour).

Some employers falsify documents to the government, or commit blatant fraud in which they pay workers at wages that are less than what the employers report to the government.  This can occur with immigrant workers, such as H-1B professionals.

If an employee has copies of documentation that proves an employer committed fraud (e.g. copies of documents the employer gave the government, and copies of payroll stubs showing the employer failed to pay the wage rates stated to the government), an employee may have very strong legal claims in this situation.

• The employer has the financial resources to pay the legal award or settlement.

It is important the employer can pay for its liabilities if the employee wins a legal claim.  In most situations, this is not a concern.  Most employers have the financial resources necessary to pay the legal award an employee seeks.  Most employee litigants are not seeking dollar amounts that would (if awarded) be so large as to put the employer out of business.

However, there are times when an employer’s financial situation is bad, and presents a major obstacle in a case.

For example, I have had employees contact me with matters in which it was as plain as day that their employers violated the law as the employee claimed, but the employers’ companies had dissolved, or the employer’s owner owed large debts to the IRS or to third party vendors, or the employer’s owner had left the country, or the employer’s financial viability and assets were otherwise in question.  These circumstances raise obtacles for legal claims that may or may not be surmountable.

Summary

Generally speaking, the more factors above that are present in an employee’s legal matter, the better the “case” the employee may have.  Again, it must be emphasized that these are not rigid rules, and that every situation is different.  Employees can benefit by keeping the factors above in mind, and considering where their potential claims may fall on the spectrum of good and bad.  Finally, the factors may help employees identify some areas in which further research, or legal advice, may assist with decisions.

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.

For more information about Wisconsin Employee Rights Attorney Michael F. Brown and Peterson, Berk & Cross, S.C., please visit http://www.pbclaw.com/mb.html.  

If you are an employee thinking of filing a discrimination complaint with the Wisconsin Equal Rights Division (ERD) or the Equal Employment Opportunity Commission (EEOC), there are several things you may want to consider before submitting the complaint.

First, you can review ERD’s website here for information about Wisconsin’s discrimination law, the Wisconsin Fair Employment Act (WFEA), and about filing a complaint at ERD. You can also review EEOC’s information about filing a complaint (also called a “charge”) here.

In addition to those resources, you may want to consider the information below, which I feel are important (and often overlooked) factors employees should consider before filing a discrimination complaint.

• You should know that the complaint deadline (or “statute of limitations”) is 300 days from the date of whatever discriminatory action you contest.

If you decide to file the complaint, it must be filed within 300 days of the employer’s adverse action(s) that you allege to be discriminatory. Often, the adverse action is a job termination. If the discrimination complaint is not filed with ERD or EEOC within 300 days of the job termination date, then the right to file the complaint is forever lost.

Sometimes, a discrimination complaint will encompass several adverse actions. For example, consider an employee who was denied an accommodation for her disability on January 2, 2008, was suspended from her job on January 5, 2008 and had her job terminated on March 3, 2008. She alleges all of these adverse actions were discrimination, based on her disability. If the employee wants to file a discrimination complaint that alleges all of these actions are discriminatory, she must file the complaint with ERD or EEOC within 300 days of the first adverse action (in this example, she must file her complaint within 300 days from January 2, 2008, or by October 28, 2008).

You can quickly calculate deadline dates by using an internet date calculator at a site like this.

Please note the original complaint (not a faxed or emailed copy) must be received by ERD or EEOC on or before the 300th day.

How much time you have left before your deadline(s) may affect your ability to follow various options below.

• You should know that the financial value of a discrimination complaint depends largely on how much income you lost, and how long you were out of work, as a result of the employer’s actions.

The financial value of a discrimination complaint depends largely on how much income you lost as a result of the employer’s actions.

For example, consider a hypothetical employee, called Employee #1. His employment was terminated for discriminatory reasons, due to his disability, and he took 6 months to find a new job. The new job paid more. Were Employee #1 to win an ERD hearing, he would likely be awarded 6 months’ worth of back pay for the time he was out of work (minus unemployment income or any other income he received during that 6 months).

Now consider Employee #2. She was subject to sexual harassment (discrimination) for several years, but the employer never cut her pay and she was not fired. She resigned her job, and started work for a new employer the next day, making a higher income. If Employee #2 won an ERD hearing, she would likely be awarded no back pay, because she did not lose money due to the employer’s discriminatory actions.

Note: You can review this post for a more detailed hypothetical scenario, and example of how potential back pay is calculated.

Typically, a discrimination complaint has greater value when an employee has been fired and out of work for a long stretch of time. If any employee’s employment was not terminated, then it’s unlikely that the employee would be awarded significant monies at an ERD hearing, unless the employee suffered some other loss of income (e.g. demotion/cut wages, suspension without pay, etc.).

At the ERD (i.e. under WFEA discrimination law), an employees’ potential awards (called “damages”) are largely limited to back pay and out-of-pocket monies lost. (If an employee goes to federal court and prevails, he or she could be awarded additional monies for emotional distress and/or punitive damages, which in some cases can be substantial. However, going to federal court may not be a feasible option, due to legal and/or financial limitations).

Before you file a discrimination complaint, it is very important you or your attorney analyze your potential damages- that is, you should estimate the monies “on the table” were you to win a legal proceeding. In some situations, employees have very good evidence of discrimination, but the monetary value of their potential damages at ERD are scant or zero. If that is the case, it is better you know that sooner rather than later, and before you invest your time and money into discrimination complaint proceedings.

• You should know that the ERD investigates discrimination claims under Wisconsin law (called the Wisconsin Fair Employment Act or WFEA), and the EEOC investigates discrimination claims under federal law.

The ERD handles discrimination complaints under State of Wisconsin discrimination law, i.e. the Wisconsin Fair Employment Act or WFEA. The EEOC handles federal law discrimination complaints.

For most types of discrimination, you have a choice of filing a discrimination complaint with either ERD or EEOC. For example, if you wish to file a sexual harassment complaint, both WFEA and federal discrimination law provide for claims of sexual harassment, so both ERD and EEOC can accept a complaint.

However, some types of discrimination claims are only available under Wisconsin/WFEA law, and must be filed at ERD. For example, WFEA recognizes a legal claim for arrest record discrimination, whereas federal law does not.

You can find information about WFEA/ERD claims here.

You can find information about federal/EEOC claims here.

You can check these sites to ensure that whatever type of claim you are considering is accepted by ERD and/or by EEOC.

• If your type of alleged discrimination gives you the option between ERD and EEOC, keep in mind that these agencies have several differences and your choice to file with one or the other can have several implications.

As discussed above, sometimes an employee must file a complaint at one agency (e.g. an employee who alleges arrest record discrimination must file at ERD). However, often an employee has a choice between ERD or EEOC.

If the complaint is filed at ERD, the complaint is “cross-filed” at EEOC-that is, EEOC receives a copy of the complaint and accepts it for filing. The same is true vice versa. So, once a complaint is filed with one agency, it is filed with the other, and all t’s are crossed for getting State and federal discrimination proceedings under way.

However, where you file the complaint makes one big difference: the agency that receives the complaint is the agency that investigates it and handles most of the proceedings.

For example, if you file a complaint at ERD, it will be assigned to an ERD investigator (rather than an EEOC investigator), and the investigator will decide whether there is “probable cause” for discrimination. If there is probable cause found, the matter will proceed to a hearing before an administrative law judge (ALJ) at ERD. At the hearing, the ALJ can award back pay and other damages if discrimination is found. The ERD website describes the foregoing process here.

Conversely, if you file a complaint at EEOC, an EEOC investigator will investigate the complaint, and will decide whether there is discrimination present. If there is discrimination found, the EEOC (unlike the ERD) will not set up a hearing. Rather, EEOC will try “conciliation” with the employer to develop a remedy for the discrimination. If EEOC is unable to successfully conciliate the case, EEOC could decide to bring suit in federal court, or could issue the employee a right to sue on his or her own. There is no hearing at EEOC, unlike at ERD. The EEOC website describes EEOC’s process here.

• You should consider whether hiring an attorney is worthwhile, financially and otherwise.

An experienced attorney could be a big help in pursuing a discrimination complaint. However, hiring an attorney should be a financially feasible decision. For example, Employee #2 described above does not stand to win any monies if she wins an ERD hearing. Thus, she should be careful to learn about her damages limitations before she pays an attorney significant amounts of money for legal fees.

It should be mentioned that an employee who prevails on a discrimination claim can be reimbursed for attorneys fees, by the ERD, as well as by a federal court deciding a federal discrimination claim. With that said, there is no guarantee that you will win your claim and will win your attorneys fees back.

In other words, there is some risk involved in paying an attorney. Before you take on that risk, you should consider the potential benefit. For example, if your potential damages include $50,000 in lost wages (back pay), then it makes more sense to invest in an attorney’s $5,000 retainer, than it does to pay a $5,000 retainer when your potential damages are $1,500.

There are also several non-financial factors to consider when hiring an attorney, which you can read about in this post.

Summary

Filing a discrimination complaint is an important decision, and often involves a large commitment of time and expense. Before filing the complaint, you may want to consider the information above, and try to make the most informed decisions possible.

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.

For more information about Wisconsin Employee Rights Attorney Michael F. Brown and Peterson, Berk & Cross, S.C., please visit http://www.pbclaw.com/mb.html.