When to Whistleblow, When to Report FML abuse (it is not ADA Accommodation) and Don't Copy Your Attorney on Work Emails (and when to change lawyers and value for money)
August 5,2020 at 6:44PM UTC
I'm making this post because a Director of a Human Resources Investigation Unit had the audacity to demand in email that I continue to include my lawyers on emails from me to City staff.
I work for a big city government with loads of state and federal grant (more tax) funded projects. This City government is so toxic to its employees local papers covered it. Despite a Race and Social Justice program, a workplace equity unit, a new investigation unit, a new Office of the Employee Ombud, and an Office for Civil Rights circumstances are worse and we have no statistical or anecdotal evidence to counter that.
I began my oversight position January 2015 and still work there. I had an initial plan to survive 3 years for resume reasons (or I would have left within the year) and later learned if I stuck it out 5 years I would get vested in the retirement plan.
I have used lawyers:
mid Spring 2016 - fall 2016 (replacement supervisor fabricated poor performance and performed supervisor mismanagement setting me up for sabotage and her long-term failure to perform"Employee Expectations for All - Managers ");
May 2018 - Feb 2019 (ADA Accommodation for a temporary 40 HR work week - do not complete any FML paperwork for Disability Accommodation!, Retaliation through false allegations, and false use of forced paid leave for over 7 months);
April 2019 - Sept 2019 (to manage the City's anti-employee centric grievance process and Civil Service Commission "settlement" from the City related to changing a fake investigation report and removing discipline, ensuring City adopted communication and management accommodations related to their re-activation of PTSD and a new Anxiety Disorder);
Feb 2020 (I was being run into the ground, being excluded, being sidelined from some core duties, reassigning to other staff without notice, documentation or discipline. My senior level, thought leadership, six figure salary job was being gutted to a widget job that should pay between $65k-$80K based on specialized subject matter and breadth. I also realized the City stopped following my renewed disability accommodation and was allowing the same clique of employees to treat me badly while holding me to another standard);
April 2020 to Present (the attorney underestimated the City's proclivity for repeat violations and left me in the lurch for 45 days - however what really happened is that the available attorney has almost no experience with ADA Title I, labor law related to protected class or whistleblowers. The City refused to accommodate, discriminated against and harassed me based on disability and being a whistleblower, and they retaliated against me for making disability complaints, disclosing that I made complaints, and for being a federal whistleblower as they learned following a federal subpoena in Dec 2019. The employer tried to use exhaustion and disability flare up to incite a reaction in the workplace that could be construed for discipline. When that failed they used an email to put me on forced paid leave for an undisclosed complaint made about this email content: bcc'ing colleagues that I was experiencing unwanted harassment, discrimination, and retaliation and I shared with employees that they can report abuse they observe happening to someone else, how to report, how much time they have, and stated that the City websites disagreed with federal guidance - that there is no requirement to report internally first and that the Fed's encourage still filing with a state or federal agency because an employer might not resolve the matter. It went to about 30 staff and I work with well over 100 staff.)
-In my expensive city the top private bill rate for a non-1%-er is $525 - $600. So the work should be short and sweet because they are effective, or you must be able to recover Attorney's fees, or the should be working based on settlement retainer.
The next tier is $400 - $500 in the areas of law I've used based on me not qualifying for any sliding scales. Make sure the attorney confirm that they specialize in your area and with your type of employer. Ask them about their expected case load and their bench strength. Good Attorney's usually charge for consultation because it usually includes giving you legal advice. Some good attorneys will give a 30 minute free consult to determine the basics for scope and your paper trail, desires, expectations, and if your engagement is a fit for them.
When to change lawyers within a firm or to another firm -- and yes, it is worth it:
-They can no longer meet your needs and ongoingly show they might have insurmountable health deficits. Also if they don't disclose they no longer have a paralegal or secretary or now only work part-time and act slighted when you want a signed scope of work. This particular attorney was at least 74, billed $525 an hour and while her name was attached to a large firm, they clearly abandoned her. She also thought the old way of working with the City was most effective.
My newer firm would have had me back to the office in 4-5 months and I likely wouldn't have to go through the required 7 month dispute process I hired the new firm to do.
Here's the email note: However, while the initial attorney was mostly effective in 2016 she was already in her 70's. Including your attorney on emails with HR and Management is an old practice and should never be used now. The best practice is to PDF the email, securely save it, and then send to your attorney. You can also print hard-coded and use a smartphone PDF scanner app and email, or use high quality screenshots. For material that isn't behaving, you can use the Snip It tool to save a document. I even saved website maps and Org Charts as evidence.
When to whistleblow:
My professional certification, one of the reasons I was the top candidate, includes an Ethics Code with models for identifying risk, correcting or retaining risk, and the hierarchy of reporting risk internally and externally when that "risk" is a serious violation or has risen to a solid pattern or practice for violating the law. It is not career suicide; but you should expect to find a new job. It is actually safer to report to state and federal agencies. In my case, the City Office that receives Ethics and Improper Government Action reports, leaked my claims to Law, my department, and a local federal worker who might get in trouble. Also, at another company, all I did was internally contact the Ethics Officer and HR to share my knowledge that junior employees were instructed not to report their over time hours upon what was a practice of then promoting those staff. But the company got greedy, went public and these super hard working staff didn't get unpaid wages or a promotion or other compensation. I used a firm that was out for itself. If I knew then what I learned almost 10 years later I would have made a whistleblower report to the Dept of Labor.
Each agency explains what complaints it takes, from whom, and what substantiates complaints. Most federal departments Office of the Inspector General sites state what violations they are currently focused on and is an ideal framework when making a complaint.
I also suggest using the federal and state hotlines to report. It was such a much easier process that had I known the Fed's would be this good, I would have reported my department in 2018; but waiting until 2019 was a boon for the Fed's because they get criminal activity by elected officials when I provided them with materials and begged them for support in 2018 and 2019.
If you can establish a pattern or practice of failure to accommodate, demands that you use Family Medical Leave for a disability accommodation when you are not incapacitated, if your employer doesn't have a real EEO program, if it posts all the leave programs and nothing on ADA, if it gives you FML forms when you only need an ADA Title I accommodation, if it "threatens" that FML will protect you, and or if you can document a pattern or practice of unfair treatment in employment based on any protected class or the protected activity of making an internal or external complaint, or helping colleagues with their federally protected labor or EEO rights, then you have grounds for complaints. Sadly, the government continues to treat protected classes as second class citizens:
1) EEO - 300 days if activity is protected by state and federal government
2) EEO or State: Only 180 days unless your state gives more time.
3) In most cases you must report that the treatment is unwanted to the perps
4) Abuses of FMLA has a 2-3 year statute of limitations. 2 years if not totally abusive; 3 years if blatantly abusive.
You can consult any of the federal and state offices in advance for guidance on what they need as back-up documentation to prove your employer's violations if you weren't terminated. If you were terminated that's the adverse action and you want every email and performance review that showed you were a good performer, received compliments, had no prior discipline if applicable and so on.
How do you record a pattern or practice:
-Exhaustion is used to break people down and use the slightest behavior to discipline
-Look for being over worked but not praised and rewarded (60 HR work weeks are the norm and you aren't in Exec Meetings on your work, whereas people of your same level are in the Exec meetings for their work and they rarely put in 50 HR weeks
-Look for wildly vague workplace expectations and discipline (this is used to identify inherently discriminatory workplaces because subjective expectations are easy to manipulate
-Look for unfair, disparate discipline
-Look for secret promotions
-Look for newly created positions that weren't competed
-Look for new and under qualified candidates getting special projects handed to them
-Do your training requests get denied
-Is your supervisor failing to foster career growth despite your attempts to engage
-Your top level work is given to others without documentation or discipline. In an EEO workplace reassigning duties and promotions are not a popularity contest. Either the person is better at the work; or management is promoting stonewalling you when professionals are expecting you to behave.
Scattered, but important information during these polarizing times.
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why Are jobs reposting the same job for $20-30K BELOW what the original post was.
I am applying for jobs in associations and nonprofit organizations, and I am seeing a trend that is getting worse and worse. I see a great job for $65-85K. I apply for that job, only to get an automated email that they are going in a different direction. THEN the exact same job—title, responsibilities, and specifics are all the time—is posted at a different salary. The salary range is so significantly lower that I can’t afford that job anymore.
Instead of a manager job making $65-85K, now it is $35-50K. It is blowing my mind.
On Monday, you will apply for a $65K a year job. On Thursday, you will get the ding email. On Friday, they repost the same job for $40K.
Is this happening in every sector right now or just in the association and nonprofit sector?