Determining Severance Leverage: Five Questions You’d Need Answered (But Couldn’t Answer Yourself)

If you have been presented with a severance agreement, you may have leverage to negotiate a better agreement and higher payment.  However, most workers who have such potential leverage do not capitalize from it.

Why not?  The reasons are many.

Most workers simply fail to recognize their best potential legal rights, claims and leverage. Workers lack the expertise needed to diagnose legal rights, a task best left to an employee rights attorney who has the experience and skill set for such an evaluation. Many, like me, have dealt with thousands of severance, litigation and settlement scenarios. Believe it or not, we’ve learned a lot from those experiences, not to mention the years of education from sources that are much more comprehensive and detailed than the incomplete and scattershot summaries that can be self-perused on the internet.

Unfortunately, many workers who fail to recognize their best legal rights also believe they can self-diagnose their legal rights and severance leverage. Worse, they almost always misdiagnose their rights and leverage. Worse yet, they often reference their misdiagnosed legal rights to the employer, and often move negotiations backward as a result.  Employers usually do not make the mistake of self-diagnosis, and usually consult with an attorney before making employment-law related decisions.

It is easy for workers– especially professional and managerial types who are generally good problem-solvers– to think they can effectively diagnose their potential legal rights and severance leverage.

Maybe you think you can. After all, you know the facts of what happened to you. You can read. You understand the information on websites of the Dept. of Labor or EEOC, or this blog, etc. that talk about legal rights.  You can (you may think) take your facts, apply your knowledge of the law from the resources you read, and (here’s where things usually get way off-track) put it all together with a valid legal diagnosis and negotiation strategy.

Before you head off on the route of legal self-diagnosis and severance negotiation– the route of effective negotiation, that is– you’ll need answers to the following five questions.

(1) What are all of your potential legal claims?

(2) What range of results, i.e. specific monetary and non-monetary results, is theoretically possible for each potential claim?

(3) What realistic range of results is likely for each potential claim, based on real-world chances of success for those claims and real-world behavior of judges and others potentially involved in the processes at hand?

(4) Why should your opposing employer take you seriously if you mention potential employment law rights or litigation but you are not represented by a employment litigation attorney?

(5) Is the final offer you’re considering a good one, in light of the factors above?

These are questions that could be answered, and answered well, by a competent employee rights attorney. I have dealt with thousands of workers– many, I freely admit, much smarter than myself– but have never met one who could answer all the important questions above. Or even the majority of them, for that matter. That is because the answers depend on years of legal research and experiences that a non-lawyer simply doesn’t have.

If you want an employee rights attorney to answer the questions above for you, before any negotiation of your severance occurs, many of us are willing to have a free initial consultation to discuss such answers. A free consult is not bad. Especially as compared to the costs and lost opportunities that self-help often brings.

Class Action Lawsuit Filed Against Tata Consultancy Services, Alleging Discrimination Against U.S. Workers

The attorney-authors of this blog, Michael Brown of DVG Law Partner LLC and Vonda Vandaveer, along with their co-counsel filed a federal class action lawsuit against Tata Consultancy Services, Ltd. (“Tata”). The lawsuit was filed on behalf of a proposed class of non-South Asian individuals who Tata did not hire and/or who faced an adverse employment action once hired by Tata (e.g., termination, demotion, etc.). The lawsuit alleges Tata discriminates against individuals who are not South Asian (or of Indian, Nepalese, or Bangledeshi national origin) in violation of Title VII of the Civil Rights Act of 1964 and the Civil Rights Act of 1866. According to the Complaint, as a result of Tata’s discrimination, its United States-based workforce is approximately 95% South Asian, primarily Indian.

This blog’s attorney-authors are among the attorneys representing the workers who filed the lawsuit, along with attorneys Daniel Kotchen, Daniel Low and Michael von Klemperer of Kotchen & Low LLP.

Please contact attorney Michael Brown at (920) 858-2265 or mbrown@dvglawpartner.com if you have any information or questions relating to the case.

Below, you can review the Complaint, which details the case’s allegations that Tata discriminated against non-South Asians in violation of discrimination law:

View this document on Scribd

Dangers of Bad Message-Board Advice to “Go File a Legal Complaint With ______”

Internet message boards about legal issues can be helpful for (1) general educational information; (2) looking for attorneys who seem to know what they’re talking about, so you can contact one; and (3) familiarizing yourself with issues that you could raise with an attorney when discussing potential legal rights. But message boards are usually terrible places to get ADVICE to ACT upon.

One common example of terrible message-board “advice”: the adviser who reads your question and replies you should ”Go file a legal complaint with [name of govt. agency, etc.].”  Often, such advice comes from non-attorneys.  Sometimes, even attorneys will make this horrific and flip message-board statement to “Go file a complaint…”: when an attorney does this, it’s almost always someone who doesn’t practice in the area of law they are talking about.

Filing a legal complaint is not something to be taken lightly, or to be cavalierly considered after a few minutes of electronic message-boarding.  A legal complaint typically involves a long process, taking months or (often) years, with complex series of potential developments, pros and cons, costs, risks, etc.

Did the message-board person telling you to file a complaint discuss with you any SPECIFIC BENEFITS or RISKS to you for YOUR particular situation?  Probably not.  If you don’t know specifically what you could gain versus what you could risk, how can you make an informed decision to file a legal complaint?

Is the person telling you to file a complaint going to PAY for the complaint process or represent you on CONTINGENCY (where they will assume financial risk)? Will they ACCOMPANY you throughout that process? HELP you throughout that process?  If the answer is no to any of these questions, you should take their recommendation with more than a grain of salt. It takes them ten seconds to type a statement that you should file a complaint. It may take you years to complete the process they typed about.

If you are considering taking legal action, then beforehand you should consult in detail with an attorney who is experienced in that subject matter.  Typically, a lengthy phone or in-person consultation (i.e. far more information than message-posting can convey) is needed to simply evaluate whether a potential legal claim exists.  If potentially-viable legal rights exist, then more discussion is needed about the actions or legal processes that could be undertaken.  Also, discussion is needed about the potential pros and cons, what parts of the process (if any) could be managed without an attorney, or if an attorney is involved, whether an affordable or contingency arrangement is possible.

Long story short, if you follow advice from a message board, you may be assuming big risks.  Legal actions can be extremely effective for some people. But I can’t say I ever heard of a legal success story that began with a message-board adviser recommending a complaint and leaving the complainant alone in the wild.

Severance Negotiations? Consider the Value of an Attorney’s Letterhead

Have you been presented with a severance offer? If so, you may be planning to try to negotiate a better severance. And you may be wondering if you should mention, as leverage, potential legal rights.  After all, perhaps you found some strong potential legal claims via Google searches, via reviewing government websites, etc.

The question: So why not mention those legal rights to the employer, and use them to negotiate?

One answer: Because most legal rights that “look” correct to a given employee are in fact incorrect. (Most employees, especially smart ones, badly misdiagnose their own potential legal rights).

Another answer: Unless you have an attorney, the employer is unlikely to take your legal posturing seriously.

You are probably not experienced with lawsuits or litigation. Employers are often experienced litigants. For those that are not, they usually communicate with someone who is, i.e. a corporate employment attorney, before they present a severance offer.  So, chances are, your employer is legally- prepared. Informed.

And when an employer in that position hears an employee talking about legal rights (especially misdiagnosed legal rights), they figure the employee is blowing smoke. If the employee is serious about doing something about their rights, then he or she would have hired an attorney.

If you plan to negotiate a severance agreement, consider the value of an attorney’s letterhead.  That letterhead alone signifies you are approaching the negotiation professionally, and seriously.  When an employer sees an attorney’s letterhead and name, they take matters more seriously. Most will quickly do internet research of the attorney and his or her website.  In my case, a employer reviewing my website would see example cases I have handled in court and other legal forums, and would see I have enforced the legal rights I am talking about during severance negotiations. It’s not just theory. It’s not blowing smoke.

We lawyers obviously have more going for us than our letterhead and websites. But those things reflect some real qualities that an employee (negotiating alone) simply does not have. Legal experience. Knowledge. Credibility.

So if you plan to negotiate your severance based on perceived legal leverage, consider getting an attorney.

Severance Boost Button

Work for Wal-Mart and Have to Buy Clothes Per Their New Policy?

My law firm represents workers in employment and wage lawsuits across the U.S. and is investigating Wal-mart’s new dress code policy.  Are you a Wal-mart worker — or do you know one– who has bought clothes due to Wal-mart’s new dress code policy?

If so, and you are interested in speaking with a lawyer, please contact me, attorney Michael Brown, at 920-238-6781 or mbrown@dvglawpartner.com.

According to news reports, Wal-Mart has a new dress code policy that requires workers to wear certain clothes to work.  If workers do not have the clothes– e.g. pants, shirts, etc. of the required kind and color– they must obtain or buy them.  Wal-mart informs workers they can buy the clothes from Wal-mart.

It is possible workers may have legal rights and options.  Different States have different laws that potentially apply to clothes-purchase issues.  Legal rights depend on the circumstances, including the State a given employee works in, whether the employee has purchased clothes (and has a receipt or other proof), and other factors.

A worker interested in legal rights should not rely on his or her own assumptions or advice from people who are not employment attorneys.  If you are interested in speaking with an attorney, please feel free to contact me.

Class Certification Motion by H-1B Workers in Case Against Access Therapies, RN Staff et al

A class certification motion and brief were filed (link to the brief is here), by H-1B workers represented by the attorney-authors, with regard to the case against Access Therapies, Inc., and RN Staff Inc. d/b/a Rehability Care, and associated company representatives.

Please contact attorney Michael Brown at (920)238-6781 if you have any information or questions about the case.

Summary Judgment Motion by H-1B Workers in Case Against Access Therapies, RN Staff et al

A summary judgment motion and brief were filed (link to the brief is here), by H-1B workers represented by the attorney-authors, with regard to the  case against Access Therapies, Inc., and RN Staff Inc. d/b/a Rehability Care, and associated company representatives.

Please contact attorney Michael Brown at (920)238-6781 if you have any information or questions about the case.

Reply Brief for Witness Tampering Motion in H-1B Workers’ Case Against Access Therapies, RN Staff et al

A reply brief was filed (link to the reply brief is here), by H-1B workers represented by the attorney-authors, with regard to the Motion for Witness Tampering and Discovery Misconduct Sanctions in the workers’ case against Access Therapies, Inc., and RN Staff Inc. d/b/a Rehability Care, and associated company representatives.

Please contact attorney Michael Brown at (920)238-6781 if you have any information or questions about the case.

It May Be Easy to File a Complaint, But Not a GOOD Complaint

Often, workers file their own employment law complaints such as for wage or discrimination issues because the complaints seem easy to prepare.  For example, you may have seen a complaint form on a government website, and it may look simple.  So why not complete the form and submit it?  It’s easy, right?

Know this.  Filing a complaint may be easy, but filing a GOOD legal complaint is not easy.  In fact, it’s very difficult for someone who is not an attorney to prepare a good legal complaint that presents your strongest case.  A good legal complaint involves:

- Knowledge and evaluation of ALL potential legal claims to ensure you are considering all your possible rights and options;

- Knowledge of the potential VALUE of a legal claim if you win, and whether that value is worth pursuing when compared to potential investments of time, work and/or money on your part;

- Deciding whether it’s a good idea to pursue ANY legal complaint, or if other courses of action are better (e.g. having an attorney write a settlement offer letter to the employer first, etc.);

- Choosing the BEST claims to pursue;

- When writing a complaint, being accurate, and including all necessary information supporting the best legal claims;

- Not including irrelevant information in the complaint that distracts, and/or upsets, the legal decision-makers who review the complaint; and

- Knowledge of the PROCESS involved after a complaint is filed, and planning for that process and associated responsibilities.

I don’t write all this to discourage you from pursuing a legal complaint.  Rather, I want to encourage you to think about the issues above.  If you are able to talk to an attorney in advance (and obviously it doesn’t have to be me), that can help you sort through important issues before you make mistakes.  Those issues are in fact complicated, however simple an initial complaint form may seem to appear.

Filing of Plaintiffs’ Motion for Witness Tampering and Discovery Misconduct Sanctions in H-1B Workers’ Case Against Access Therapies, RN Staff et al

Recently, H-1B workers represented by the attorney-authors filed a Motion for Witness Tampering and Discovery Misconduct Sanctions in the workers’ case against Access Therapies, Inc., and RN Staff Inc. d/b/a Rehability Care, and associated company representatives.

Please contact attorney Michael Brown at (920)238-6781(920)238-6781 if you have any information or questions about the case.

Scroll below if you’d like to review the brief accompanying the motion:

171 Brief Ps' Motion for Witness Tampering and Discovery Misconduct Sanctions