By Chris Avcollie,
The phrase, “knowledge is power,” often attributed to Sir Francis Bacon, is frequently quoted but inadequately heeded in my view. This phrase has special meaning for me as a practicing employment attorney. The disparity in knowledge of labor and employment law is the key to understanding the imbalance of power between employers and employees in the American workplace. Each day I counsel individuals and small business owners who are facing loss of their livelihood and in some cases, their careers due to workplace legal disputes. It is striking to consider how little most of us understand the laws governing the workplace. Those who can afford the best information are in a far superior position in most workplace situations. What can be done to even this imbalance of knowledge and therefore, of power?
In 2020, corporations in the United States spent over $37.5 Billion on in house legal counsel. They spent another $68 Billion per year on outside counsel. Id. The average Fortune 500 company in 2020 spent some $10.7 Million on legal counsel! Much of that budget was spent on employment counsel. During the same period the average individual spent approximately $155.87 per year on all legal services combined (i.e. real estate, criminal defense, probate, divorce, and employment) of which only a miniscule portion was used for employment related services. When a dispute arises between an employer and one of its employees, who do you imagine will be better informed and better prepared? The employer usually has a vast advantage over their employees in terms of both resources and information about workplace laws and regulations. However, both employers and employees have an equal interest in the outcome of these disputes. This makes any employee’s challenge to the status quo established by an employer seem futile. Obtaining the right information and legal counsel at the right time is essential for survival in today’s workplace.
QUESTION: “WHEN DO I NEED AN EMPLOYMENT LAWYER?” ANSWER: “EARLY AND OFTEN”
For those who are able to locate and to afford legal advice for their workplace issues it is a good idea to consult with an experienced employment attorney. But when do you really need an employment attorney? Only when you are experiencing loss of employment through termination or when you are being harassed or abused? The answer I give after thirteen years of employment practice: Every time you anticipate or experience a change in your workplace. While it may feel dramatic or reactionary to “lawyer up” whenever there is a change in one’s work situation, you must remember that your employer has already “lawyered up” for decades and (employer’s collectively) to the tune of billions of dollars per year! In my view it is not at all reactionary to seek some basic legal counsel in every employment situation when one considers both the level of investment that employers make in gaining an advantage in these interactions and the high stakes involved. You can bet that your employer is not hesitating to consult expert lawyers in deciding how to deal with employee matters!
Why are the stakes so high when workplace conflicts arise? Work is fundamental to our identity. Work is essential and integral to a meaningful and productive human life. Human beings derive fundamental concepts of their personality and self-worth from their work. Humans do not only work to live. They work to gain an identity and to contribute to the collective good. Our work is tied up to our aspirations, our hopes for the future, and our family’s well-being. No part of our economic existence is more significant. Anyone who has lost their job or career can attest to the deep impact such a loss can make in one’s life. Our work is to a large degree who we are as Americans.
Given the seminal importance of our work to our social identity it makes sense that workplace conflicts can reflect larger social issues and problems. The recent changes in the American workplace brought on by Covid-19 related issues such as vaccine mandates, the work from home revolution, and the recent shortage of essential workers and demands for higher minimum wages are just some of the current social trends being sorted out in the context of our collective workplace. The legal considerations which inform our workplace environment are far too complex and multifarious to navigate without expert guidance or at a minimum, a lot of good information.
WHAT IF I CANNOT AFFORD AN EMPLOYMENT ATTORNEY?
While high priced legal counsel is simply not affordable for many working individuals, it is important to remember that there are also inexpensive sources of information available to help those who are facing difficult workplace issues. This blog for instance! Many law firms publish similar blogs although most, in this author’s humble opinion, are not as useful as ours! Blogs and articles from consumer minded employment firms can be an invaluable information resource. Law firm publications such as this can provide essential and up to date information on a variety of issues like workplace bullying; age discrimination; Covid-19 vaccine mandates; unfair pay disparities; and non-compete agreements.
Carey & Associates, P.C. offers a free downloadable guide to employment law called the Employee Survival Guide®. It is an excellent resource for workers and employees alike. Further, help with specific employment issues can be found through a number of government agencies. The federal Equal Employment Opportunity Commission for example is a wealth of information regarding employment discrimination and retaliation issues including race or gender discrimination, sexual harassment and disability or age discrimination. In Connecticut and in many other states, there are also state level human rights agencies such as the Connecticut Commission on Human Rights and Opportunities that can provide information and assistance with employment issues such as illegal discrimination. Both state and federal departments of labor can assist the public with a variety of information regarding such matters as workplace safety, unemployment compensation benefits, and wage and hour laws.
Most state’s judicial branches publish resources regarding legal issues in the workplace and the internet is a wealth of information if one is careful to select reliable sources. Before taking on your employer be sure to arm yourself with as much information as possible. As my Grandmother used to say, “Never go into the unknown not knowing…”
When you are experiencing a difficult workplace issue and have not yet had time to inform yourself of your rights, be sure to document all of the events that you feel are noteworthy or questionable in the meantime. What situations arose? What specifically was said and done, by whom, and what were the results? Who else witnessed these events? Take contemporaneous notes of all workplace events and document them in extreme detail. If your situation requires expert advice from a lawyer or government agency at a later time, that information and documentation will be priceless. The specific “knowledge” of what exactly occurred at work is also powerful.
WHAT TYPE OF WORKPLACE SITUATIONS REQUIRE ADVICE AND LEGAL INFORMATION?
The number of potential workplace issues that can arise are of course legion. What type of situations should trigger a search for counsel and information? An affirmative response to one of the following questions should lead you to consider talking to an attorney as soon as possible:
• Is your company experiencing a re-organization?
• Have you noticed that you are being treated differently at work than you were previously?
• Do you have a new supervisor or manager who is changing your work environment?
• Have you been treated differently than other co-workers in similar positions? Why?
• Have you lost benefits, commissions, or bonuses because of changes in your employer’s policies?
• Have you been disciplined unfairly at work?
• Is your employer asking you to sign documents touching on your work environment such as non-disclosure agreements, arbitration agreements, or non-compete agreements?
• Has your employer issued a new Employee Handbook with different policies?
• Have you experienced or observed discrimination or harassment in the workplace?
• Have you witnessed or experienced workplace bullying or intimidation?
• Have you been placed on a performance improvement plan (a “PIP”)?
• Are you being “set up to fail” by a supervisor or manager?
• Have you been disciplined or singled out unfairly?
• Has your employer suggested or intimated that you should retire or resign?
• Have you been treated differently after a workplace injury or after asking for accommodations for a medical condition?
• Is there any new or unusual union activity at your workplace?
• Do you need to request family medical leave for yourself or a seriously ill loved one?
• Has a negative employment action been taken against you?
• Have you applied for a job and not been hired?
• Have you been fired?
• Have you applied for a promotion and not gotten it?
• Have you been demoted?
• Have you suffered a cut in pay or benefits?
• Have you not received the same increase in pay or benefits as similar employees?
• Have you received a poor performance evaluation unfairly?
• Do you need a workplace accommodation because of a medical condition or disability?
While this list is not exhaustive of the circumstances where you might need to consult an employment attorney, if you observe one or more of these issues at work, you should seek advice right away. When employees obtain counsel early in their employment before any serious adverse action is taken by the employer, a skilled employment attorney can not only help to resolve workplace conflicts before they become too severe, they can also help to avoid certain conflicts and issues. Increasingly, I am noting that employees are retaining my services to help advise them on how to preserve their job and avoid difficult employment conflicts, not just to litigate against their employer after the working relationship has broken down irretrievably.
ACT ON WHAT YOU KNOW
Knowledge may in fact be power but knowledge without action is useless. As American self-help author Napoleon Hill wrote, “Knowledge is only potential power. It becomes power only when, and if, it is organized into definite plans of action, and directed to a definite end.” In the contemporary workplace, knowledge of the law cannot move the needle on an employment dispute if it is not put into action. When you are faced with the potential loss of livelihood, get the best information you can and seek out an employment lawyer who knows how to use it to your best advantage.
If you need to speak with an employment lawyer about your employment case or employment discrimination, please call Carey & Associates, P.C. at 475-242-8317 for a consultation.