UNCIVIL RIGHTS (Beachfront Press, 2009) is a guide to workers' rights. Detailed descriptions of employment rights issues and methods for protecting and preserving those rights are provided by way of practical, real-life examples.
Everyone should know his or her employment rights. Millions of American workers lose their jobs every year. This may come as a surprise, but in 49 states, an employer can fire you for good reason, bad reason, or no reason at all. It may sound un-American, but that’s the law in this country. Your employer can one day decide he or she no longer wants you around. Some workers will be "downsized," "laid off," or "reorganized" out of their jobs. Thousands will be fired, with or without "cause." Some workers will be forced to resign because of intolerable working conditions. If you work for someone else—and most of us do—sooner or later either you or someone you care about will lose his or her job. You must understand your rights and know your options.
Suing your employer is a declaration of war. What chance do you have against a powerful and well-financed adversary? Even David, when he went to battle against Goliath, had a slingshot.
There are serious problems in the workplace and in the courts. The laws designed to protect workers are failing.
The courtroom can be a very frightening and intimidating place, particularly when you have no idea what to expect. Knowing your rights and knowing what to expect will increase your chances of surviving.
Most people think of a lawsuit as a search for the truth. In reality, it is a complex set of rules, which must be followed, and where one misstep can lead to defeat. These rules are complicated and confusing to most people, including lawyers, often making it difficult to find the truth.
As a trial lawyer, I often think of these words from Dante’s Inferno when I enter a courtroom: "Abandon all hope, ye who enter here." It is said that the law and justice are distant cousins. Frequently, they are not even related.
There are numerous minefields to cross before an employee can win his or her lawsuit. The legal system is designed so that even one misstep can prevent you from prevailing. Step on one mine, your case explodes, and you get nothing but shattered pieces. Losing your job can be devastating. Losing your case in court can be even more devastating after spending thousands of dollars you cannot afford, not to mention the emotional trauma and wasted years. There are serious problems in the workplace and in the courts, but they can be fixed, and everyone can benefit.
There are a number of ways of resolving disputes in the workplace. The most expensive, time-consuming, and least-effective method is a lawsuit. It is important for employers and employees to realize that they share mutual interests. All employers should foster an environment that respects and values their employees. The cooperation between the employer and its employees benefits everyone.
Employees are generally the most important part of any organization. Employers who recognize this will have an advantage in the marketplace. Employees who are valued and respected in the organization are more likely to exert a positive effort that can only benefit the organization.
Providing a framework where both the employer and the employee "win" is a higher form of dispute resolution then the lawsuit where one side wins and one side loses. In reality, both sides usually lose in a lawsuit in terms of wasted time and money. Even when the employer wins a lawsuit, in addition to the high cost of litigation, key personnel are taken away from their normal jobs to deal with the preparation and defense of the lawsuit.
For many people, their job is the single most important aspect of their lives. Our job provides the means for us to obtain the necessities of life and, hopefully, some financial security. That job supports our dreams of having families, homes, education, entertainment, and hobbies. Most of us rely on a job to provide health insurance, disability coverage, and manage pension contributions for our retirement. Friends and social connections at the workplace become important to us. Our work also provides us with self-esteem and self-worth. When you meet someone for the first time, the first question you usually ask is, "What do you do?" For many of us, our job defines who we are.
Not surprisingly, then, losing our job is a devastating event in our lives. Maybe we’ve just started with the company, but we need the income to support our family. Maybe we have devoted twenty or thirty years to our job, and then new management comes in and tells us that we are no longer needed.
The financial, social, and interpersonal losses might be more tangible, but the psychological impact could take the heaviest toll on you if you are not careful. Losing your job arouses feelings of helplessness, shame, guilt, anger, and a loss of identity. It can make you doubt your abilities, or lead to isolation as you avoid loved ones and friends. The stress affects both your mind and your body, making it harder to make decisions or rise above growing depression.
In my experience, the loss of a job triggers four major stages of the grieving process: shock, depression, anger, and acceptance. Tom’s case comes to mind as a good example of the shock stage.? For one week after he was let go, Tom continued to go to the job site and walk around the building from eight o’clock in the morning until five o’clock at night. Then he went home to his wife and family as usual. Over the weekend, Tom was finally able to tell his wife what had happened, and together they began to deal with the reality of his lost job.
Workers usually seem to get over this shock stage fairly quickly, but then they get stuck in the second stage, depression. When Paul lost his job, he became so depressed that he rarely left his bed for the next five years. For the balance of her life, Connie was unable to bring herself to even look for another job. Many people become suicidal during this stage, especially if they are isolated or lack a support network. As a society, we need to be more sensitive to the pain that comes with the loss of a job. We support each other when a loved one dies, but often neglect work-related grief experiences.
In the third stage, the former employee is angry and wants to get even with the employer for causing the grief. In some extreme cases, fired workers return to their workplaces and kill their former bosses and colleagues. I had one client who had a recurring nightmare of going into work, killing all his supervisors, and then killing himself.
Fortunately, this outcome is rare. But for those individuals, who do get stuck in this anger phase, the consequences for themselves and their family can be tragic. Some develop what I call "litigation psychosis." Their whole life revolves around their lawsuit and plans to get even with their former employer and all of the people who had anything to do with their firing. Attention is focused on the past, rather than on the present and the future. Getting stuck in the anger stage leaves you feeling bitter, helpless, and frustrated.
With time and the proper support, you can move beyond the shock, depression, and anger into the acceptance stage. Each of us has to get to the fourth stage to remain healthy and productive, and to make the decisions necessary for our own well-being. At the acceptance stage, an employee can move on with his or her life and make a fruitful search for another job. Once settled in with the new job, many experience relief at being out of the precarious or previous hostile work environment. From this rational perspective, you can decide if you have the energy, patience, stamina, resources, and support to file a claim against your former employer.
Litigation is costly, time consuming, and, very often, disappointing. The worker needs to be emotionally prepared for this battle. The employer has to understand the ramifications of using litigation as a way of resolving workplace disputes. The employer may know the cost of defending the claim in court by looking at the monthly bills. But that is only a small part of the cost. A lawsuit may affect worker morale and decrease worker productivity. Valuable time of key personnel may be wasted in dealing with the lawsuit causing these key workers to leave. One lawsuit may spur other lawsuits by disgruntled workers. While most employers win in court, they really end up losing.
Given that most of us would rather continue our current employment as loyal and well-compensated employees, preferably in a positive and affirming work environment, one major focus of this book will be to coach you in how to assert your rights and keep your job while doing so. If your employer makes promises and then fails to deliver, or discriminates against you in violation of the law, then this book will walk you through your options. Keep in mind that our first goal is to have you be fairly treated in your current employment situation, so a prudent employee should learn his or her rights—and how to protect those rights on a daily basis. This book will help you do just that. Then, if things start to unravel, or if you find yourself being shown the door, the book will coach you in the process of asserting your rights in an effective and timely way.
One last point before we get started: I really care about employee rights, and I want to inform you not only about your rights, but how to assert them in a timely and effective manner. This book is an educational tool, however, and is not intended to replace competent, professional legal advice. State laws and procedures differ across the country. New judicial decisions that could affect your rights are being decided every day. Also, each employment case hinges on a few major factors, such as union membership, the existence of a contract or employee handbook, other written documentation or evaluations, tenure or seniority rights, the employer's history of business practices, and how you behaved during the stress of your employment difficulties.
When something goes wrong at work, get professional help immediately! Don't wait for things to get worse. You may decide not to take action at that time, but you must provide yourself with every advantage by knowing your rights and the deadlines that could cause you to lose significant rights if you delay.
Also, it is important to know that most attorneys are not well versed in employment law. Be sure that your legal advisor specializes in this area of legal practice, preferably almost exclusively. Employment law is complicated and involves a variety of federal and state claims and agencies. One "simple" case, for example, may require a choice of filing under federal or state laws or with federal and state agencies simultaneously, plus an independent application for relief under a workers' compensation law, unemployment compensation, litigation for damage to your reputation, or for breach of contract. This book can help you find resources and to assert your rights, but please do not rely on it solely. My intent is that you can learn from other people's mistakes as I help you understand your employment rights. But don't make the big mistake of taking on your employer without competent, specialized legal guidance.
As you read this book, you may have comments or questions that come to mind. I want to hear from you. Since this is my passion, the odds are excellent that I will be updating this book in the years ahead. Learning is a lifelong process and teaching is an art, so I welcome your insights and suggestions. I cannot dispense legal advice, and I may not be able to respond personally to all of your correspondence. But I will take your ideas to heart in any future update of Uncivil Rights. You may write to me by way of the contact page.
Thank you, and best wishes,
Other Works by Frederick T. Golder
Labor and Employment Law: Compliance and Litigation [3rd Edtion]
This looseleaf treatise on labor and employment law offers quick solutions to pressing employee relations problems. It includes an overview of both employment-at-will and employment discrimination; rights and remedies of employees, unions, and management; overview of federal and state labor and employment statutes; discussion of cases exemplifying prohibited practices; and collective bargaining, grievances, arbitration, and wage and hour law.
Available at West.Thompson.com
(c) Frederick T. Golder, All Rights Reserved