Bad work situations: When do you need an employment lawyer?

Image courtesy of clipart panda.com

Image courtesy of clipartpanda.com

A negative performance review. An oral warning. A rumor that your job isn’t secure. Resistance — or perhaps retaliation? — in response to a concern you’ve raised about possibly unethical or illegal behavior. A gut feeling that you’re being singled out for mistreatment.

These are among the on-the-job signs that raise the question of whether it’s time to seek the advice of a lawyer.

When it comes to workplace situations, many people don’t seek legal advice until it’s too late, usually after a termination. I’d like to take a few minutes to urge that earlier is usually better and to offer suggestions on seeking legal advice. The bulk of what follows is written with American workers in mind, with apologies to many loyal readers who are from other countries.

Earlier is usually better

There is no hard and fast rule on when to seek the advice of an employment lawyer. But generally speaking, earlier is better. Knowing what rights you have and don’t have, and getting some sense of whether your concerns implicate employment protections, can help you assess your options and plan accordingly (legally and otherwise).

One’s instincts can be very useful in cueing a decision to seek legal advice. If it feels bad, it often is worthy of concern. In some cases, very early consultation may be appropriate, such as if you’re asked to sign a very restrictive non-compete agreement or any significant waiver of your employment rights.

In the case of a layoff or termination, legal advice may be helpful in weighing potential severance packages and agreements, even if you’re not contemplating a lawsuit.

Suggestions and points of information

  1. Consulting a lawyer in no way obliges you to file a lawsuit or take any further action. Those decisions are yours.
  2. In most cases it’s advisable not to inform your employer or co-workers that you’re seeking legal advice; that should wait until later, if at all. This is not a universal rule, but it should be considered the default starting place.
  3. Initial consultations with employment lawyers may cost you some money, and those fees can vary widely.
  4. Come prepared for any initial phone or in-person consultation. Have any relevant employment evaluations, employer communications, employee handbooks & policies, etc., available to discuss and share. If possible, prepare a short, chronological, bullet-point summary of major events related to your concerns.
  5. Legal consultations need not be limited to questions about potential litigation. They may also cover eligibility for benefits such as workers’ compensation claims, family and medical leave, and unemployment insurance.
  6. Human resources offices owe their allegiance to the employer, not to the individual employee. Reporting concerns to HR or a similar in-house office does not substitute for obtaining independent legal advice.

How to find an employment lawyer

I strongly advise seeking a lawyer who is experienced and knowledgeable in the field of employment law and who specializes in representing workers. Most attorneys in this field represent either workers (i.e., plaintiffs in potential claims) or management (defense); it is unusual to find those who work on both sides.

While this blog isn’t in a position to offer specific attorney referrals, resources for identifying employment lawyers are readily available. Many of the best plaintiffs’ employment lawyers belong to the National Employment Lawyers Association (NELA), a bar association whose members devote a large share of their practices to representing workers in disputes with current and past employers. The national NELA website offers online legal referral assistance and may be accessed without charge. State-level NELA chapters may have websites that offer similar online referral assistance or contain browsable member listings and links; the Massachusetts chapter is an example of the latter.

Local and state bar associations may also offer attorney referral services.

If you are specifically seeking advice on a workers’ compensation matter, then it’s preferable to consult an attorney who specializes in this sub-field.

Some legal services offices provide advice and representation on employment-related matters. Because of the heavy demand, income eligibility guidelines are pretty stringent, but if you are not employed and have few financial resources, it’s possible that you may qualify for assistance.

Alternatives to consulting a lawyer

Certain public agencies are charged with enforcing employment protections and may be approached by members of the public who have concerns and questions about their rights. They also serve as intake portals for formal claims and complaints. These options may be viable alternatives to hiring a private attorney. The following is not an exhaustive list, but here are some of the most likely agencies for employment-related complaints:

  • The federal Equal Opportunity Employment Commission and its state and local counterparts, responsible for enforcing employment discrimination laws;
  • The federal Occupational Safety and Health Commission and its state counterparts, responsible for enforcing workplace health and safety laws;
  • The federal Department of Labor and its state counterparts, responsible for enforcing minimum wage and overtime laws, as well as other labor standards; and,
  • The federal National Labor Relations Board and its state counterparts, responsible for enforcing laws concerning collective bargaining and concerted worker activities.

Union members

In addition, union members should definitely contact a shop steward or union representative with concerns about potential discipline or termination. The protections offered in collective bargaining agreements typically far exceed those afforded to workers who are not union members.

For those who are experiencing workplace bullying

Many of us in the U.S. are all too aware that we currently have no direct legal protections against workplace bullying and mobbing. I see that situation changing in the years to come. However, for now those who seek legal advice for workplace bullying are highly unlikely to find lawyers who specialize in bullying claims because, well, it’s hard to specialize in a sub-field concerning behaviors that are not yet the subject of direct liability.

Currently, then, obtaining legal relief for bullying and mobbing usually boils down to whether the mistreatment can be sufficiently shoehorned into existing legal protections, such as employment discrimination laws and anti-retaliation provisions of whistleblower laws. In some cases, employee policies or collective bargaining agreements may cover bullying-type behaviors, thus possibly creating contractual protections and obligations. It is helpful to think through these potential legal links before consulting a lawyer.

Just the beginning

Folks, these are hardly the first or last words to be shared on the topic of working with employment lawyers and the decisions involved in contemplating legal action. The full treatment would require a short book, and even then I doubt that all the contingencies could be covered. However, I hope these points are helpful to those who may be seeking legal advice in connection with a work situation.

Revisiting Dr. Karin Huffer’s “Legal Abuse Syndrome”

Some seven years ago, I wrote about Dr. Karin Huffer’s work on “legal abuse syndrome,” her label for a form of Post Traumatic Stress Disorder “that develops in individuals assaulted by ethical violations, legal abuses, betrayals, and fraud,” generated by legal actors and systems. Since then, I’ve encountered many individuals who have become familiar with her work, either due to personal experience with the legal system or a professional interest in reforming our legal structures and the legal profession.

In the updated edition of her book, Legal Abuse Syndrome: 8 Steps for Avoiding the Traumatic Stress Caused by the Legal System (2013), Dr. Huffer — a therapist — offers a dedication to “lawyers, judges, and bureaucrats who do not abuse their positions,” but she quickly takes aim at “judges, attorneys, regulators, and others, who elect to be solely self-serving.” This includes lawyers who reportedly “knowingly exhaust their client’s resources and leave their clients vulnerable” and strike deals to preserve their professional status, as well as judges who “find for the more rich and powerful in spite of evidence.”

Huffer invokes the term “Institutionalized Abuse of Power” to characterize a legal system that may inflict a heavy price on those at the wrong end of the power spectrum. Powerfully adverse business interests buoyed by teams of attorneys can fuel lengthy, stressful, and expensive legal proceedings that sap one’s physical and emotional health, family relationships, career and employment status, and financial well being.

The road to recovery includes healing from the trauma of that experience, in addition to dealing with whatever events prompted legal process in the first place. Huffer also offers advice for those who have experienced legal abuse syndrome, her “Eight Steps to Recovery”:

  • “Debriefing”
  • “Grieving”
  • “Obsession”
  • “Blaming”
  • “Deshaming”
  • “Reframing”
  • “Empowerment”
  • “Recovery”

Uncomfortable read for lawyers and judges

A lot of lawyers and judges aren’t going to feel comfortable reading Legal Abuse Syndrome. It does not pull punches, and to some the book will come across as being overly polemical. Furthermore, those who treat clients and parties to lawsuits with respect and dignity may feel unfairly maligned by the harsh characterizations in the book.

But I would urge those folks not to take offense. Too many lawyers and judges are profoundly unaware of the emotional consequences of their actions and the system in which they work, especially the often aggressive world of litigation. Empathy for those ensnarled in legal matters can run low.

It’s also sadly the case that too many lawyers and judges don’t care that much about these emotional consequences, blithely justifying their actions on assumptions of how legal actors and systems are supposed to operate. The worst among our profession may even get a perverse satisfaction out of inflicting emotional injuries upon others.

Bullying in the legal profession

The culture of legal institutions comes into play as well. Just today, for example, the American Bar Association Journal summarized a new study finding that workplace bullying “is rampant at law firms, but many law firm leaders are reluctant to punish the offenders.” This piece by Deborah Cassens Weiss further reported that “Ninety-three percent of surveyed leaders at the nation’s top 100 law firms reported bullying at their firms” and that among “all of the surveyed firms…, the most common problem, cited by 89 percent, was bullying and lack of respect.”

Let’s consider the implications of this study. A significant share of the nation’s most prominent law firms harbor cultures of bullying and disrespect. These law firms are most likely to represent the wealthiest, most powerful business interests, and sometimes governmental interests as well. (Concededly, most also do pro bono work on behalf of impoverished individuals and underserved causes, but not in ways that directly conflict with the legal and business interests of paying clients.)

Bullying behaviors run downhill. If a culture of bullying and disrespect governs how attorneys treat one another within their own law firms, then how will their clients and opposing litigants fare when dealing with lawyers who have been schooled to think that interpersonal abuse is the norm for their profession?

Therapeutic jurisprudence to the rescue?

Therapeutic jurisprudence (TJ), a school of legal philosophy and practice that, in the words of co-founder David Wexler, “concentrates on the law’s impact on emotional life and psychological well-being,” is part of the solution to this state of affairs. At our recent therapeutic jurisprudence workshop at the York University’s Osgoode Hall Law School, concerns over the experiences of parties in litigation with legal systems came up in multiple discussions. I consistently sense that TJ adherents are much more likely to understand how being a party to a lawsuit or complicated legal matter is often an unpleasant, stressful experience, and sometimes may become abusive.

Currently we are a long way from being able to characterize TJ as the mainstream or dominant framework for looking at the law, legal systems, and legal actors. But if we want tackle legal abuse syndrome and similar consequences of being involved in lawsuits and legal matters, then embracing TJ is a big part of the solution.

North of the border: On transforming our laws and legal systems

Prof. David Wexler, during a workshop break, at York University's Osgoode Hall Law School

TJ co-founder David Wexler, during a workshop break, at York University’s Osgoode Hall Law School

I spent Friday and Saturday participating in a workshop on therapeutic jurisprudence at York University’s Osgoode Hall Law School in Toronto, Canada. For two days I joined in stimulating, intense discussions with a small group of professors, lawyers, mental health experts, and graduate students to discuss how we can create laws and legal systems that are more invested in psychological health and well-being.

Therapeutic jurisprudence, or “TJ,” is a school of legal philosophy and practice that “concentrates on the law’s impact on emotional life and psychological well-being,” in the words of law professor and co-founder David Wexler (pictured above). For some 30 years, TJ adherents have been creating a global network of scholars, practitioners, judges, and students. My own attraction to TJ arose out of my work on workplace bullying and my broader commitment to creating systems of employment law that embrace human dignity.

The Toronto workshop was a sequel to workshops held in 2015 and 2014 at Suffolk University Law School in Boston and in 2012 at the University of Puerto Rico School of Law in San Juan. Our purpose has been to create small gatherings of TJ-affiliated scholars, practitioners, and students to share work in progress and to solicit feedback, as well as to build the TJ community. I have elaborated on the value of small-group workshops and symposia that promote genuine interaction and the forging of ongoing connections in a short essay, “Academic Conferences: When Small is Beautiful,” which may be downloaded without charge from my Social Science Research Network page.

In essence, we are planting seeds for important changes in the legal profession and in our legal systems. These aspirations will become more ambitious during the year to come, when we launch an international, non-profit membership society that will build the therapeutic jurisprudence community and expand TJ’s scope and influence.

Here were the workshop topics:

  • “Dealing with Sexual Violence on Campus” (Carol Zeiner);
  • “What Can Design Thinking Offer TJ (and vice versa)? (Nicole Aylwin);
  • “Emotional Intelligence for Judges” (Michael Jones);
  • “Loneliness in Old Age and Ethical Considerations” (Heather Campbell);
  • “Methodologies for the study of procedural justice within the operation of TJ related courts” (Voula Marinos);
  • “Feedback-Informed Judging” (Dale Dewhurst and Ann Marie Dewhurst);
  • “Practical Demands for Access to Justice” (Dale Dewhurst);
  • “Friends of Justice” (Ann Marie Dewhurst);
  • “Evolving scientific evidence and its potential effects on individuals (as distinct from case outcomes)” (Alison Lynch);
  • “TJ, forensic mental health, and the Ontario Review Board” (Jamie Cameron and Sandy Simpson);
  • “Considering the Profound Differences between Mental Health Courts and ‘Traditional’ Involuntary Civil Commitment Courts (Michael Perlin); and,
  • “Accessible Legal Writing and TJ” (Shelley Kierstead).

I spoke on “Psychological Trauma, Neuroscience, and Narrative: Bullied Workers and the Challenge of Storytelling,” building on this blog post from September.

Special thanks go to Osgoode Hall professor Shelley Kierstead — a veteran of TJ-related events — for organizing and facilitating this workshop, and to Osgoode Hall dean Lorne Sossin for his warm welcome to the Law School.

I’m pleased to report that in addition to very full days of discussion and dialogue, we managed to get in some terrific meals and a night of karaoke. I opted for some favorites from the Gershwins, Sinatra, and Tony Bennett. Singing is good for the soul, especially after many hours spent talking about reforming our laws and legal systems!

Outside the restaurant, awaiting a final group dinner. L to R, DY with Profs. Shelley Kierstead, Michael Perlin, and David Wexler

Awaiting a final group dinner, with Profs. Shelley Kierstead, Michael Perlin, and David Wexler

Coming in 2017: An organization to advance therapeutic jurisprudence

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Regular readers of this blog may know that I am associated with therapeutic jurisprudence (TJ), a school of legal philosophy and practice that “concentrates on the law’s impact on emotional life and psychological well-being.” For some 25 years, TJ adherents have been creating a global network of scholars, practitioners, judges, and students. My own attraction to TJ arose out of my work on workplace bullying and my broader commitment to creating systems of employment law that embrace human dignity. TJ, I realized, was a natural match for those interests.

In fact, I am something of a full-on convert. I now believe that our legal system must, as a primary objective, embrace psychologically healthy outcomes in legal proceedings and transactions, while honoring other important political and economic concerns and core notions of rights and responsibilities.

Accordingly, I am working closely with a group of TJ-affiliated professors, judges, and lawyers to create an international, non-profit membership society that will build the therapeutic jurisprudence community and expand TJ’s scope and influence. We are looking at a 2017 organizational launch. Here’s a passage from a piece describing this effort that we just posted to the Therapeutic Jurisprudence in the Mainstream blog:

For over a quarter of a century, the growing therapeutic jurisprudence movement has existed as an informal, multidisciplinary community of scholars, practitioners, judges, and students. We are now ready to take things to the next level.

Plans are underway to create a new, international, learned society dedicated to TJ. This non-profit organization will consolidate many existing TJ activities, support new TJ initiatives and programs, and serve as a virtual gathering place for those interested in advancing TJ as an important school of legal philosophy and practice.

The new TJ society will be a lean operation, built on modest membership fees and a simple organizational structure, with its eyes trained on facilitating and supporting good works rather than getting overly caught up in internal machinations.

Many details have yet to be settled, and many individuals have yet to be contacted. However, the TJ society will hold its opening event at the July 2017 Congress of the International Academy of Law and Mental Health, to be held in Prague. This will include a substantial, participatory roundtable discussion about initial plans for the organization, followed by a luncheon for those who would like to commemorate this very promising new venture.

This is a very exciting development, and during the coming months I will be sharing occasional updates about this initiative.

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Related posts

Here are three previous blog posts about therapeutic jurisprudence:

Can a quirky band of law professors, lawyers, and judges transform the law and legal profession? (2015)

A view from Vienna: New wine and new bottles for the practice and substance of law (2015)

Visioning law and legal systems through a psychologically healthy lens (2014)

Law review articles

I’ve written several law review articles that incorporate insights from TJ, and you may freely download pdf copies by clicking the links:

Intellectual Activism and the Practice of Public Interest LawSouthern California Review of Law and Social Justice (2016)

Therapeutic Jurisprudence and the Practice of Legal Scholarship – University of Memphis Law Review (2010)

Employment Law as If People Mattered: Bringing Therapeutic Jurisprudence into the Workplace — Florida Coastal Law Review (2010)

Human Dignity and American Employment Law – University of Richmond Law Review (2009)

World Elder Abuse Awareness Day 2016

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June 15 has been designated as World Elder Abuse Awareness Day by the International Network for the Prevention of Elder Abuse and the World Health Organization, and I’m glad to be able to help bring it to our attention. Here’s how the sponsors describe it:

Each year, an estimated 5 million older persons are abused, neglected, and exploited. In addition, elders throughout the United States lose an estimated $2.6 billion or more annually due to elder financial abuse and exploitation, funds that could have been used to pay for basic needs such as housing, food, and medical care. Unfortunately, no one is immune to abuse, neglect, and exploitation. It occurs in every demographic, and can happen to anyone—a family member, a neighbor, even you. Yet it is estimated that only about one in five of those crimes are ever discovered.

World Elder Abuse Awareness Day (WEAAD) was launched on June 15, 2006 by the International Network for the Prevention of Elder Abuse and the World Health Organization at the United Nations. The purpose of WEAAD is to provide an opportunity for communities around the world to promote a better understanding of abuse and neglect of older persons by raising awareness of the cultural, social, economic and demographic processes affecting elder abuse and neglect. In addition, WEAAD is in support of the United Nations International Plan of Action acknowledging the significance of elder abuse as a public health and human rights issue. WEAAD serves as a call-to-action for individuals, organizations, and communities to raise awareness about elder abuse, neglect, and exploitation.

The United Nations describes elder abuse as “a single, or repeated act, or lack of appropriate action, occurring within any relationship where there is an expectation of trust which causes harm or distress to an older person.” Examples include “physical, psychological or emotional, sexual and financial abuse.” Especially with demographic projections showing a steady growth in the older population, elder abuse is likely to take on greater significance in the coming years.

***

In 2013, I participated in a conference on bullying across the lifespan at Temple University’s Beasley School of Law. The conference brought together academics, practitioners, and advocates from across the country who have been addressing the legal and policy aspects of bullying in different social and institutional settings. It took a chronological approach, starting with bullying among school kids, moving on to higher education settings, then to the workplace, and finally to seniors. The final panel examined best practices across that span. The gathering served as an excellent connect-the-dots reminder that interpersonal abuse and bullying can and do occur at every age stage.

 

 

Work-related travel can expand horizons

The Idaho Law and Justice Center (photo: DY)

The Idaho Law & Justice Learning Center, Boise (photo: DY)

On Saturday night I returned from an excellent conference on equality in employment, organized and hosted by the student editors of the Idaho Law Review at the University of Idaho College of Law in Boise. As I wrote last week, I was heading out there to talk about the exploitative aspects of unpaid internships. I also was looking forward to learning more about the work of fellow presenters.

This was a splendid gathering. The panel discussions were interesting and informative, and the conference was organized in a way that provided time for informal conversations in between panels and during meals. (As regular readers of this blog are aware, I’m a big fan of smaller conferences that allow chances for genuine interaction, and this one fit the bill.) I am especially grateful to Idaho Law Review Symposium Editors Molly Mitchell and Ingrid Batey, Professor John Rumel, and Dean Mark Adams for being such warm hosts and for making the event such a stimulating and educational experience.

WPA mural inside Law and Justice Center (photo: DY)

One of the beautiful WPA murals inside the Learning Center (photo: DY)

This all-too-brief visit reminded me of how even work-related travel can expand our cultural horizons. As many of the east coast visitors (including me) observed, this was our first visit to Boise. It was a wonderful chance to discover this charming city and to learn more about the legal profession and legal education in Idaho. The conference was held in the Idaho Law & Justice Learning Center in downtown Boise, an historic old building with an interior featuring vintage Works Progress Administration murals. The downtown area is home to a lot of great architecture, with a very nice selection of shops and eateries, as well as the State Capitol building and other governmental entities. It’s a cool city that I’d be delighted to visit again.

Idaho Law is the only game in town for those seeking a legal education within the state, giving its students a near monopoly on legal internships and part-time jobs. It’s no surprise, then, that Idaho alums play leading roles in the state’s legal, business, and public sectors. For those of us used to bigger cities with multiple law schools competing for attention and access to jobs, it was very interesting to see how this law school plays such a central, hub role for the state’s legal community.

Sharing a humongous apple pancake with Drs. Gary and Ruth Namie

Sharing a humongous apple pancake with Drs. Gary and Ruth Namie

My Idaho visit also allowed me to enjoy a hearty pre-flight breakfast and conversation with long-time friends and colleagues Drs. Gary and Ruth Namie, founders of the Workplace Bullying Institute. Gary and Ruth moved from Washington State to Boise last year to be closer to family. Our meal at a local pancake house not only was gastronomically superb, but also gave us a chance to catch up in person and to do some planning. It was a real treat to see them and left me with even more ideas to contemplate on the ride home.

The sociopathic employee handbook

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I once had an opportunity to review provisions of an employee handbook from a large, mostly non-union employer in the non-profit sector. Like many employee handbooks, there were sections devoted to employee rights, obligations, and performance expectations. On the surface, this handbook seemed to provide a good number of safeguards for workers to prevent unfair treatment and evaluations. But then I read the document more closely, and a chill ran up my spine. It was a cleverly, nay, ingeniously worded document that exposed workers to severe remedial measures, substantial discipline, or even termination for relatively minor inadequacies and transgressions. 

Among my reactions was that this read like the work of a sociopathic lawyer! The handbook contained a lot of cool, calm, bureaucratic-sounding language, mixed in with deftly worded provisions that would allow the employer to make mountains of molehills and to quietly knife people in the back — figuratively speaking, of course.

Employee handbooks are legally significant. During recent decades, state courts have consistently held that handbook provisions can be contractually binding upon employers and employees alike. For better or worse, employee handbooks heavily weighted toward management prerogative are pretty much the norm these days.

However, much worse are those handbooks that have a distant appearance of fairness while actually being loaded with details that can be used to roughhouse rank-and-file employees. I think there is a special place in a certain hot spot for those who write and impose such documents on workers. It is, to be sure, a twisted abuse of power.

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