If you’re an employee or employer in a dispute or lawsuit, you will be tempted– very tempted– to describe events in terms of adjectives or conclusions, i.e. labels.

For example, a worker may want to tell a boss or a legal authority “I was given unfair and impossible expectations” (the operative labels being “unfair” and “impossible”), as compared to saying something like this. “On June 5th, Supervisor Jones told me to complete 1,000 widgets in 1 minute, and I could not do that work in that time frame.”

In employment disputes, it is much better to speak in the latter terms, i.e. to speak the language of facts, than it is to speak in label-ese.

Know this: to the ears of the person(s) you want to influence, the language of labels– e.g. “unfair,” “lied,” “disorganized,” “harassed,” etc. etc.– is like the sound of nails scratching across a chalkboard.  The horrible sound of labels will muffle out the factual content of what you say.

But if you speak in the language of facts, and describe things strictly in terms of what was said and done, i.e. the terms of who, what, when, where and how, then you give yourself the best chance of having your audience actually consider what you have to say.  The audience can thereafter apply themselves whatever adjectives or conclusions come to their own minds.

Please note the audience is in control of their own decisions.  And they will resent you if you try to make decisions for them, which in effect is what you’d be doing if you speak in terms of labels.

So, whatever your employment dispute and whoever your audience, if you decide you’re going to speak up (which itself can be a big decision), it’s best you give your audience the raw facts, politely stated.  Then stand back as the audience considers the facts and makes decisions.

Wisconsin legislators are considering enactment of a bill, 2009 Assembly Bill 894, that prohibits workplace bullying by employers.

The bill seeks to prohibit abusive work environments in Wisconsin, and to allow a worker subjected to such an environment to bring a civil legal claim.

Importantly, a civil claim would be filed in a Wisconsin county court, as opposed to federal court or an administrative agency like the Wisconsin Equal Rights Division or EEOC (i.e. agencies that handle discrimination complaints).

This post summarizes the bill, its legal requirements, its potential benefits for WI employees, and potential liabilities for employers.

• Prohibited Employer Conduct: Abusive Conduct that Causes An Employee Tangible Harm. The bill prohibits Wisconsin employers from directing “Abusive conduct” toward any employee that causes the employee “Tangible harm.” (When an employee is subjected to abusive conduct that causes tangible harm, this constitutes the so-named “Abusive work environment” that would be legally prohibited– if the abusive conduct is an isolated event and not severe, or if the abusive conduct does not cause tangible harm to an employee, there would be no legally-actionable “Abusive work environment”).
  • “Abusive conduct” is defined to include “repeated infliction of verbal abuse such as derogatory remarks, insults, and epithets; verbal or physical conduct that is threatening, intimidating, or humiliating; sabotage or undermining of an employee’s work performance; or exploitation of an employee’s known psychological or physical vulnerability.”
  • “Abusive conduct,” according to the bill, “does not include a single act unless that act is especially severe or egregious.”
  • Abusive conduct is legally prohibited, and provides basis for a legal claim, if it causes any employee to suffer “tangible harm.”
  • “Tangible harm” is defined as “any material impairment of a person’s physical or mental health or bodily integrity.” (In other words, an employee found to be unlawfully abused would likely have shown medical evidence of physical or psychological injuries– e.g. medical records showing conditions such as anxiety diagnosis, heart problems, etc., that a health professional attributes to the employer’s abuse).
• Retaliation is also prohibited. An employee can bring a legal claim if the employer retaliated against the employee because he or she:
  • opposed an unlawful employment practice (e.g. the employee was fired because she told the employer she opposed its abusive conduct toward other employees);
  • initiated, testified in, assisted in, or otherwise “participated in an investigation, action, or proceeding to enforce a right under this section, including any internal investigation or proceeding, any mediation or arbitration proceeding, or any court action.”

• One-Year Deadline/Statute of Limitations. There is a one-year deadline for an employee to bring a legal claim.  This deadline period starts ticking “one year after the last act constituting the unlawful employment practice occurred or be barred.”  (From this language, it appears this would be a continuing-violation type claim, in which a complaint timely filed within one year of the last act would claw back to cover prior associated/continuous acts).
• Relief/Legal Awards. Relief (legal awards) to an employee could include:
  • The court enjoining the employer or abuser-employees from engaging in abusive practices;
  • reinstatement of the aggrieved employee who had been subject to abuse and discharge/demotion/etc.;
  • removal of the person who engaged in the abusive conduct giving rise to the unlawful employment practice from the aggrieved employee’s work area;
  • medical expenses;
  • back pay;
  • front pay;
  • compensation for emotional distress;
  • punitive damages; and
  • reasonable costs and attorney fees.

• Personal Liability. Abusive employees could be sued in their personal capacity, along with the employer, although there are potential limitations and affirmative defenses (see below).
• Affirmative Defenses. Accused employers and accused abuser-employees would have affirmative defenses to avoid or reduce liability.  These include affirmative defenses:
  • where the employer exercised reasonable care to prevent and promptly correct the abusive conduct at issue;
  • where the aggrieved employee unreasonably failed to take advantage of appropriate opportunities provided by the employer to prevent or correct that abusive conduct;
  • where an adverse employment action against the aggrieved employee (e.g. discharge) and the employee’s complaint is actually based on poor performance, a reasonable performance evaluation, misconduct, economic necessity, and/or a reasonable investigation of a potentially illegal or unethical activity by the employee;
  • where an employee who is alleged to have engaged in an unlawful employment practice (e.g. a manager accused of abusive conduct) may plead as an affirmative defense that the employee engaged in that practice at the direction of the employer under threat of an adverse employment action against the employee for not engaging in that practice.  (This particular affirmative defense would help the accused abusive-employee avoid personal liability, but would not help the employer giving abusive directives to avoid liability).
• Right to Jury? It appears that claims and relief could be decided by a judge rather than a jury, given the bill’s frequent references to a “court” deciding relief.
• Limited Relief Where No Adverse Employment Action. If an abused employee, despite suffering “tangible harm,” does not also suffer “an adverse employment action” (namely, discharge, demotion, suspension, or other form of pay loss), then “the employer’s liability for compensation for emotional distress may not exceed$25,000 and the employer is not liable for punitive damages.”

• No Preemption By Workers Comp Laws. The bill explicitly says that workers comp law would not preempt (block) these new bullying-law claims; workers comp law has, in general, traditionally barred other (non-workers comp) claims involving emotional or physical injuries caused by work or by an employer.  The new WI anti-bullying-law claims could be pursued along with a WI workers comp claim, although the award for the anti-bullying claim could be reduced based on a workers comp award.  This would limit double-dipping that could have otherwise resulted from pursuing both types of claims/legal theories.

This completes the summary of the bill.   It should be interesting to see what happens with it.

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

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There are times when these workers’ beliefs are in fact supported by evidence, such as discriminatory statements made by the employer during a job interview, the employer having hired a far less-qualified worker who was not in the protected class, etc.  So I will acknowledge, as Kurt Cobain once said, “Just because you’re paranoid doesn’t mean they aren’t after you.”   And hey, my job is representing workers who - in my view of the evidence- the employer was “after.”

However, job applicants  should know there are many times when hiring employers are not “after” you.

There are many, many non-discriminatory reasons (fair and unfair) that an employer may have for not hiring someone.  There may be 100 more qualified applicants that you don’t know about.  The employer’s owner may have wanted to hire his incompetent nephew for the job, which is unfair, but is not unlawful under WI law.

There are many times when job applicants” beliefs of discrimination are not borne of hard evidence, but instead stem from the frustration in not getting a job.  This frustration is completely understandable, as is wondering about discrimination, as discrimination does exist and is not uncommon.

However, just because discrimination is “out there” doesn’t mean it is everywhere.

Further, even if discrimination is in play for a given job opportunity, it does you no good to adopt defeatist beliefs like “They won’t hire me because of my age- heck, most employers won’t hire me because of my age.”  Even if it were true that most employers exercise age-discrimination in hiring (which is not true in my view), it doesn’t do a worker any good to stew about that, or lose motivation because of that.  Again, most of the time, discrimination is not at issue in hiring decisions.

For those occasions where there is evidence that discrimination is an issue, that is not something to defeat you, but rather an obstacle to work around.

In my view, the most common areas of discrimination in job-hiring context, which are supported by the most evidence, is discrimination based on the applicant’s disability, age, or criminal record (criminal record is basis for a protected class under Wisconsin law, although this is not the case under federal law or many other states’ laws).  Within these protected classes, people who fall on the end of the spectrum- people with the most severe disabilities and medical needs, people of increasingly advanced age, people convicted of types of crimes that are strongly shunned by the public- probably are wise to keep potential discrimination in mind as they apply for jobs.

However, such at-risk workers should not dwell on discrimination, or stew about how bad it is (even though it is).  Rather, discrimination should be thought of as something to adjust to.  If your reality is that you are dealing with a hiring employer with discriminatory beliefs (e.g. they believe that a person over 70 cannot perform the job at issue), then your task is to politely deal with that belief and try to change it (e.g. point out the rich experiences and resume that a 70-year old has that a 30-year does not).  Anticipate discriminatory concerns (e.g. that an older worker will want to retire abruptly), and affirmatively and politely address them (e.g. explain what your own goals are, and how your work life with the employer would not live out the employer’s fears).

I don’t want to get too motivational-speaker-like here, and I acknowledge that there are a whole lot of people, including many clients I’ve had, who can tell me a lot more than I can tell them about job-hunting tips.  But when it comes to concerns of discrimination, real or perceived, I can tell you firsthand that it is counterproductive to deal with those concerns by stewing about them or viewing them too negatively.  Again, discrimination is something you can deal with and you can overcome, if and when it presents itself.