“ To err is human.
To blame it on someone else shows management potential.”

– Unknown

ACTUAL CASE HISTORY: Gary, 44, was a staff writer for an online entertainment industry blogsite. Most of his writing in recent years was about trends in subscriptions to live streaming music. His special expertise was in data collection and analysis to spot trends, and he was widely known as an expert in that area.

Gary’s analysis of live-streaming subscriptions lead him to the firm conclusion that certain of the largest live streaming music companies – indeed, the largest ones in the music industry – were losing more and more subscription customers to their smaller, more focused, and nimble competitors. When he wrote a significant article about this trend, his editor refused to publish it, claiming that it was replete with illogical assumptions on Gary’s part. This had never happened to Gary before in his 20 or so years as an entertainment industry writer.

Separately, two colleagues approached Gary in confidence, and shared with him that the blogsite’s editor had admitted to them that she declined to post his article because she was afraid of backlash – in the form of less advertising – from the larger streaming services, who were the blogsite’s “bread and butter.” They even shared an email in which the editor claimed to have been pressured to do so by the blogsite’s owners.

Gary then submitted to Human Resources a formal complaint of breach of his contract provision that forbade editorial decisions being made on financial considerations, and also that this was a breach of ethics and company policy. A two-week “investigation” by the blog site’s outside lawyers concluded only that “We did not find that anything improper has taken place,” despite the emails, the witnesses, and the circumstances that clearly showed otherwise.

Only after Gary brought the situation to the attention of the company’s CEO and Board of Directors did real progress toward addressing the problem begin to take shape.

LESSON TO LEARN: The most important lesson my mother taught me is that, “Without accountability, you really can’t expect responsibility.” Let’s face it: if failure to pay your taxes was not illegal, and no one checked whether or not you did, would you really do so? (As a lawyer, I must advise you that you need not answer that.)

Let’s all simply accept the reality that the same thing happens at work: many managers will not do the “right thing” if no one will hold them accountable for their failures to do so. And that is why they often hire “investigators,” not to determine the truth but to protect themselves from it.

Over my 35 years as an advocate for employees, many times I’ve helped clients file claims or complaints with their employers’ HR department, compliance department, and legal department of wrongful behavior against them by means of (a) discrimination, (b) harassment, (c) hostility, (d) retaliation, (e) dishonesty, (f) fraud (especially regarding Performance Improvement Plans), (g) threats of violence, and other misconduct by their managers or colleagues. In past years, some of those investigations found that the complaints were fully justified; other times, it was concluded that there was no basis for the complaint. The reasons given for not finding a basis for the complaint were often shared, and included (i) a misunderstanding of what was said or done, (ii) the alleged “offense” was only a very minor transgression, and (ii) the alleged “offense” may have taken place, but it was done in error, that is, without wrongful intention.

Increasingly, however, employers’ investigators – whether Human Resources, in-house Legal Staff, Employee Relations, or external investigators, such as law firms – never, ever seem to find any wrongdoing. It’s as if we now live and work in a “world of angels.”

That is because “investigators” are almost always tasked not with determining the truth, but rather with three specific objectives, namely, to:

1. Gauge Risk: To gauge the amount of risk posed by the complaining employee and his or her complaint, to both senior management, personally, and the organization or company;

2. Diminish Risk: To frustrate the employee’s efforts to exercise his or her legal rights, determine the truth, protect themselves, and hold the “guilty” persons accountable for their wrongdoing, misconduct or negligence; and

3. Divert Accountability: To ensure that no one – and most of all members of senior management – are not held accountable for wrongdoing, what we call brought into the “zone of accountability.” Said a bit differently, making sure that “the buck” does not stop on anyone’s desk.

And, it is close to never these days that investigators are willing to share the reasons “nothing wrong was found,” because that, itself, would raise a risk. This is so even when they are presented with such strong evidence of wrongdoing as, for examples, (a) incriminating emails, (b) damaging documents, (c) credible witnesses, (d) damning circumstances, and even (e) admissions of wrongdoing.

Sound a bit paranoid? Well, consider that Wells Fargo Bank internal and external investigators “investigated” internal wrongdoing for five years and fired over 5,000 of their branch personnel for opening up non-existent accounts, but found not a single thing wrong, in error, or even questionable about the conduct of senior management who both (a) directed, coordinated and collected bonuses of tens of millions of dollars as a result, and (b) were not even criticized, until Congress had open hearings about it and exposed this gross dishonesty and rank hypocrisy.

The ultimate issue is this: “Who is investigating the investigators?” The “secret” to truly resolving this dilemma is to make “someone in authority” accountable for what has taken place, and that “someone in authority” is almost always your employer’s senior-most management. When they are brought into the “Zone of Accountability,” you have significantly more leverage, which can be put to significantly better effect.

WHAT YOU CAN DO: These are the several steps you should consider taking in order to get past, over and beyond such “blindness to wrongdoing” on the part of “investigators” of any complaint you file at work:
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“He who asks questions cannot avoid the answers.”

– Cameroon Proverb

ACTUAL “CASE HISTORY”: Celeste was at the end of her rope. For 12 years she had worked as a Senior Sales Manager for a large handbag manufacturer, and had risen over time in title, responsibilities, and compensation. To say that she was highly regarded and universally admired by all who she worked with would be an understatement.

Recently, though, her employer instituted a new policy: all Purchase Orders had to be reviewed by Divisional Sales Managers for “accuracy.” Celeste was puzzled because she had never, in her 12 years, heard of “inaccuracy” in the Purchase Orders she submitted, or those submitted by anyone else. Not once. Regardless, she complied.

Shortly after, Celeste began to notice that Purchase Orders were being “corrected” by increasing the sales price by a few percent, and decreasing the large-order discounts applicable to those sales. Worried about customer complaints, Celeste inquired about the “corrections” with her Manager; she was told that it was not her job to manage her Manager.

Sensing that something was not right, Celeste called the (supposedly) confidential “Integrity Hotline” telephone number in her Employee Handbook, and left a message questioning the new “corrections” policy. Within two days, Celeste received an email from General Counsel’s office to requesting that she attend a meeting with an Outside Legal Counsel without being told the purpose of the meeting.

Celeste sensed that she had better “play” this carefully, and that this could come back to “haunt” her in one way or another. And, so, she called us for a consultation. It was good that she did, because the “meeting” was to investigate her — and her “false allegations.”

LESSON TO LEARN: At work, every now and then someone finds it necessary to question, object, or complain about something that is simply does not seem right, legal or tolerable. It could be workplace violence, a danger to health or safety, illegal behavior, bullying, harassment, discrimination, retaliation or any number of other things.

Whether it is you who filed the complaint or someone else, you might be called in to answer questions of an investigator from (a) Human Resources, (b) Employee Relations, (c) internal legal counsel, (d) outside legal counsel, or (e) some combination of these people.

Most importantly, you need to understand that, as an employee, you have an obligation to cooperate in any investigation, whether or not you believe it affects you and whether or not you want to.

But questions remain, most commonly (1) “How should I prepare?”, (2) “What should I do or say?”, (3) “Can I bring a lawyer with me?” and (4) “Could I be hurt in some way by what I say?” Because your job and career might be on the line, it is unquestionably a stressful and tricky situation.

WHAT YOU CAN DO: Based on our many years assisting in such matters, here is what we advise our clients:
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Question: Alan, I have a legal claim and would like to file a lawsuit. However a deadline is soon approaching, and I have not yet hired an attorney.

How can I get an extension of the time to file my lawsuit on my own, that is, without an attorney?

Bonnie
Moncton, Canada

Answer: Dear Bonnie: As you may know, I am not licensed to practice law in Canada, so what I suggest below may not be applicable to you. However, it is applicable to most states and countries in which I have worked with “local attorneys,” and therefore I think it is likely applicable in Canada, as well. 

1. A law that sets a time limit to file a lawsuit is called a “statute of limitations.” In the majority of countries, including Canada, laws specify how long after an “event” or “injury” takes place a person can sue for damages in what is called a “civil” case, or a prosecutor can prosecute the person in what is called a “criminal” case.

 For example, in Canada, for “misdemeanor” or “summary” crimes, which are lesser crimes, there is a six-month criminal statute of limitations. After that period, a defendant can no longer be involuntarily prosecuted. However, for more serious crimes in Canada, there is no statute of limitation. So, for example, for a crime of robbery or rape, a prosecution can be brought even 30 years later. 

In Canada, as in almost all countries, “civil” lawsuits have different “statutes of limitation.” A case for collection of a debt, for example, must be brought within six years. In the U.S., each state sets its own statutes of limitation for different criminal and civil cases. In Canada, statutes of limitation are established by both the federal and the provincial governments. 

To find out the applicable Statute of Limitation for your case, you can probably find it out by conducting an online search engine search, or by contacting your local Court or Tribunal. And, too, an attorney might do you a small favor by looking it up for you.   

2. In a “civil” case, that is, one brought by one person against another, to get an extension of time to file your case, you need to ask the “defendant” to agree to it, in what lawyers call a “Tolling Agreement.” As a general rule, if you want to sue a person or company, and the deadline for doing so is approaching, you have to ask the other person or company to enter into a “Tolling Agreement,” in which both “sides” agree to extend the time period for filing the Complaint.

Sometimes, the parties enter into a Tolling Agreement so that they can have time to speak about settlement of a case without filing in Court. Commonly, the “defendant” against whom a lawsuit is threatened will not agree to do this, unless it is in the defendant’s interests. No  precise form of Tolling Agreement is necessary, but it is important to be clear about (a) the legal claim that is being extended, (b) when the Statute of Limitations is set to expire, and (b) to what date the parties agree to extend it.   

3. However, sometimes laws do not permit Tolling Agreements, or limit their application. For example, in January of 2004, in Ontario, the Statute of Limitations for a breach of contract case was changed from six years to two years, and by that law it was declared that this two-year deadline applies “despite any agreement to vary or exclude it.” Also, in the U.S., after the Equal Employment Opportunity Commission permits a person to sue for discrimination in Federal  Court, that person has just ninety days to do so, and the Courts have said that parties to the lawsuit have no ability to extend that deadline, even if they wish to or have agreed to. 

4. Quite often the smartest thing to do is to quickly file the most minimal papers necessary to start your lawsuit on time, with the help of a Court Clerk, and then later amend your Court papers or have an attorney do so for you. If you are tight on time due to an approaching deadline to file your lawsuit, and you have doubts about whether your adversary will agree to sign a Tolling Agreement, you might travel to the Court and describe your dilemma to the Court Clerk, and request some minimal assistance in filing the necessary papers. This is what I would, indeed, recommend.   

5. Some Courts, like the U.S. Federal Courts, have special Court Clerks called “Pro Se” Clerks, who work full-time for this very purpose. “Pro Se” means “For Yourself,” and I have heard many times of Pro Se Court Clerks showing people in your circumstances an example of a Court  Complaint someone else has filed that you can use as a Model or Sample. In addition, I have heard many times of attorneys who are willing to show “samples” they have filed in the past to people in your situation. Also, many Courts have files online, available to all, and in this way, if your local Court does so, you might see a good sample to follow. 

After your Court filing, and if necessary after “serving” a copy of the Complaint – that is, delivering it to the defendant – you can almost surely later “amend” your Complaint to make it better, or an attorney can do that for you. 

Keep this thought in mind: If you do, at least, file “something” before the applicable legal deadline, you have a better chance of not losing your legal rights than if you just did not file “anything” at all.   

Bonnie, I hope this is helpful to you. Don’t let your legal rights expire. I applaud you for standing up for yourself!! Please consider telling your friends, family and colleagues about our blog – we’d REALLY appreciate that!!

My Best,
Al Sklover

Repairing the World,
One Empowered – and Productive – Employee at a Time™

© 2013, Alan L. Sklover All Rights Reserved. Commercial Use Prohibited.

Question: Hi, I have worked for a local county government for nearly 8 years. My supervisor and I have never really gotten along and she has always tried to make things difficult for me. 

I was recently diagnosed with a chronic medical condition which required a few meetings with the ADA (“Americans with Disabilities Act”) Compliance Office. Since then, my supervisor has treated me even more badly. She recently told me that my position may not be right for me and I should consider looking for another job. I have talked with her supervisor and she has refused to intervene. 

Should I go to Human Resources and file a complaint? Or is it time to move on? Any advice would be much appreciated.

Lea
Sacramento, California

Answer: Dear Lea: While the information about your situation that I have to work with is limited, I think there are several reasons you should do BOTH (i) file a Complaint with Human Resources AND (ii) start the process of moving on. Here are my best thoughts:    

 1. First, your health and what affects your health need to be your primary “compasses” in what to do. As the saying goes, “If you have your health, you have everything.” I would not at all doubt that your stress at work may contribute to your chronic medical condition. Let’s just say this: it sure won’t help it. Lots of things related to work and finances give us stress, including (a) being without a job, (b) looking for a job, (c) people at work who intentionally make your life miserable, and (d) those in authority who refuse to intervene when it is their job to intervene. Which ones are more stressful to you only you know for sure, but I think reducing unnecessary stress, to the degree you have control over your stress, ought to be one of your primary “compasses” you use to determine your next direction and the steps to take in that direction. 

2. Second, it seems pretty clear that your supervisor is reacting negatively to your disabling condition, and that is nothing less than (a) a violation of Federal (and State) law, and (b) a violation of your company’s policies. I cannot expect any supervisor to be happy to hear that one of his or her employees may need either an accommodation for health reasons, or time off to see doctors or the ADA Compliance Office. As a supervisor myself, I know that if one employee cannot do the work, for any reason, I have to find another employee to do the work, or do it myself. That’s only human. 

However, an employee with a disabling medical condition must – by federal and state law – be accommodated to a reasonable degree, and must NOT be treated negatively because of it, or because he or she has asked for an accommodation. We are fortunate to live in such a humane society that would pass such laws; we should never be afraid to exercise our legal rights. And, too, supervisors who “come down on” employees who visit the ADA Compliance office cannot then tell them, on that basis, to “look elsewhere” for employment.    

3. Your supervisor’s supervisor is shamelessly avoiding her own duties to you, as well. I am eternally perplexed by people who seek positions of responsibility, only to shirk those responsibilities when given to them. Your supervisor’s supervisor should have intervened, or had HR intervene. That, too – not acting when a seemingly valid concern has been raised about violation of a federal workplace law – is, itself, capable of being described as a violation. 

4. Please consider replacing important communication “by your lips” with communications “by your fingers.” Lea, I don’t mean this as a criticism, but only as a caution: all important communications at work should, if possible, not be spoken, but instead be emailed. You have “spoken” with your Supervisor, and you have “spoken” with your Supervisor’s Supervisor. They may forget (or mischaracterize) what you said, when you said it, how you said it, and even the tone of your voice when you said it. I love emails, for they provide a clear record of all these things. No one should fear the truth, and emails are always on the side of the truth.   

5. Filing a Written Complaint with Human Resources should give you (a) a degree of protection from further bad treatment, (b) leverage to obtain more time to look for a better job, (c) a possible transfer, and (d) perhaps a severance package of sorts. By filing a Written Complaint with HR, you put your employer, your supervisor and your supervisor’s supervisor all on notice that you will no longer sit back and tolerate what has been happening: a violation of law. Your health is important. Unnecessary stress is harmful to it, and reasonable accommodations to any disability are required by law. In this way, you will make yourself somewhat protected from further bad treatment, because your supervisor will know that she is “being watched.” 

Also, of great importance, if you file a written Complaint, that will greatly increase your chances of  being given more time to find a new job, being permitted to transfer, or even receive a severance package. 

If you would like to obtain a Model Letter that you can adapt and use to file a Formal Request for a Disability Accommodation under the ADA (Disability) Retaliation, just [click here.]  

6. Filing A Written Claim with HR will also discourage your Supervisor from treating others in this way, now and in the future. Another probable effect of your filing a written Complaint with Human Resources is that your Supervisor will probably not be so arrogant as to treat other people this same way. While it may sound altruistic, some might even say idealistic, you may, in your own way, be helping to “repair the world.” If your supervisor does act more humanely to others, it will just prove what my mother taught me as a young child: “Accountability encourages responsibility.” 

If you would like to file a complaint of illegal Retaliation for your meeting with ADA Compliance, and would like a Model Letter to do so, simply [click here.] 

7. Lastly, should you decide to resign, please consider the many advantages of submitting an “Involuntary Resignation.” As you may or may not know, we have “invented” a concept we call “Involuntary Resignation.” Sound sort of oxymoronic? Well, as you now well know, not all resignations are entirely “voluntary,” and making a record that your resignation is “involuntary,” right in the resignation letter, itself, preserves your (a) possible right to collect unemployment, (b) possible legal rights and claims, (c) possible reason to collect severance, and (d) your better ability to answer people, in the future, who ask why you resigned without first having a new job. If you’re interested in this concept, please review my article [click here], and my video [click here] on the subject of “Involuntary Resignation.”   

If you would like to obtain a Model Involuntary Resignation for your adaptation and use, simply [click here.] 

Lea, you are somewhat between a “rock” (your health concerns) and a “hard place” (your supervisor.) I hope these thoughts are helpful to you in finding a “way out” of your predicament. Thanks for writing in. I will say a prayer for improvement in your health.      

My best to you,
Al Sklover

Repairing the World –
One Empowered and Productive Employee at a Time ™

© 2013 Alan L. Sklover, All Rights Reserved.

Question: Hi, Alan. I filed a Charge of Discrimination with the Federal Equal Employment Opportunity Commission (“EEOC”) against my employer because I was being bullied by my boss, along with being treated differently from other co-workers in my department on several levels. 

I received from the EEOC a “Right to Sue Letter” a month and a half ago, and my time is running out to file my Federal discrimination lawsuit. However, no attorney around these parts will take the case because I was not fired and I think they do not want to go up against my employer because they are well known around these parts. 

What can I do next?

Brenda
Rantoul, Illinois

Answer: Dear Brenda: Our society helps those in your circumstances to get your “day in Court” in several ways:    

1. Your best bet would be to contact the “Pro Se Law Clerk” for the Federal District Court nearest you. When the EEOC issues a “Right to Sue Letter” you then have ninety (90) days in which to file your lawsuit in your local Federal District Court. Each of the Federal Districts Courts has at least one “Pro Se” Law Clerk to assist individuals, like you, who do not have attorneys representing them. “Pro Se” is a Latin phrase that means “For Oneself” and a Pro Se Law Clerk’s sole job is to assist individuals in your circumstances in filing and maintaining a lawsuit by yourself. 

The staff of the Pro Se Law Clerk in your Federal District Court can help you by answering questions about forms, deadlines and procedures, but they are prohibited from giving you actual legal advice. Most have a ready supply of forms for your use to fill in, or model your Court materials from, as well as written guides to filing your case without an attorney. 

The Pro Se Law Clerk’s office cannot, however, (a) recommend a legal course of action, (b) predict how a Judge or Court will decide any issue, (c) interpret the meaning of a Judicial Order, or (d) interpret the law, legal doctrines, or cases for you. 

To contact the Pro Se Law Clerk for the Northern District of Illinois, which is your Federal District, you can call (312) 435-5691. 

2. Additionally, Law School “Student Law Clinics” often provide supervised law students to assist those without attorneys in matters such as yours. Many law schools have “Law Clinics” which are comprised of law students, acting under the supervision of clinical teachers, Law Professors and experienced attorneys. Law Clinics commonly assist those without attorneys deal with either the Court system or government agencies while giving students practical training intended to help them develop effective advocacy skills.    

In your area, The University of Chicago Law School is home to many student legal clinics, including one that might just be best for you: the “Employment Discrimination Project.” To contact them at the University of Chicago Law School, go to www.law.uchicago.edu/clinics/Mandel/employment or dial (773) 702-9494.   

3. A third approach would be to try to obtain an attorney’s guidance and assistance – even if it is not representation – by means of a Bar Association’s “Pro Bono” assistance programs. Many states and local bar associations suggest – and some even require – that their attorney-members engage in what is called “pro bono public” legal efforts. “Pro bono publico” (or “pro bono” for short) means “for the public good.” You might try to locate an attorney who is interested in your case, or the issues you raise, who will either take on your case, or act as a legal advisor to coach and mentor you through the federal lawsuit process. 

Though most attorneys are quite busy in their own law practices, (a) younger lawyers seeking experience, (b) older lawyers who are retired or semi-retired, and (c) many other lawyers who are seeking experience in a new area of law, may be willing to assist you without charge, or for a reduced charge. 

I would suggest you consider this way of moving forward, and contacting the Illinois State Bar Association at (217) 525-1760, or visit their “LawyerFinder” website at www.illinoislawyerfinder.com. 

4. While I am sure representing yourself sure sounds difficult, intimidating and complex, the Federal Courts are really quite patient, accommodating, and understanding with people who cannot locate or cannot afford attorneys, and so represent themselves in Court. I must admit that I am almost always quite impressed at how kind, helpful and compassionate most Federal Court personnel – and most especially Federal Judges – are to people in your circumstances. With lawyers, while always polite and gracious, Court personnel can be a bit “unforgiving,” but with non-lawyers they really are quite wonderful. I have seen just super-human patience and compassion shown to those who have the courage and conviction to represent themselves in Court – which is their right to do. I think representing yourself in Federal Court might be a daunting challenge, it might, too, be a wonderful and inspiring experience for you. 

And what an advantage you have over attorneys: you cannot be disbarred! (Just joking.) 

5. No matter what you do, Brenda, you cannot miss your deadline for filing your lawsuit – there will be no “second chance” given to you. One thing I do want to share with you, Brenda, is that your deadline for filing your Federal Court Complaint (what we lawyers call the “Statute of Limitations”) is not flexible, but entirely strict and unforgiving. Read the instructions carefully on your “Right to Sue Letter” issued to you by the U.S. EEOC, because it sets forth your Statute of Limitations for filing your Federal Court Complaint. Even if it is not perfect, complete or exactly what you’d like it to say, I do recommend you do not permit yourself to miss that deadline, because to do so is, what in law we call “fatal to your claim.” After filing, within a reasonable period of time you will be able to file an Amended Complaint, but only if you met your deadline with your initial Complaint. 

Brenda, I admire and respect you for standing up for yourself, and persevering. The world surely needs more people like you!! I hope this answer has been helpful to you.      

 My best to you,
Al Sklover

P.S.: If you would like to obtain a list of five or more experienced, “employee-side” employment attorneys in the Chicago area, just [click here].

Repairing the World –
One Empowered and Productive Employee at a Time ™

© 2013 Alan L. Sklover, All Rights Reserved.