Employee Survival Guide® - The Games Employers Play

Episode Date: June 28, 2023

In this episode of the Employee Survival Guide, Mark addresses the games employers play with employees.  Mark recently had two consultations with perspective clients and wanted to share the insights he shared with both individuals to help each person understand the games their employers were playing with them and what they could do about it to persuade the employers to pay them increased severance.  Mark provides an overwhelming amount of information in the episode, and it is the same information he shares during his consultations with perspective clients.  This episode is intended to take the blinders off employees about what their employers are doing to them (playing games) and how to effectively leverage a successful severance negotiation to their advantage.   If you enjoyed this episode of the Employee Survival Guide please like us on Facebook, Twitter and LinkedIn. We would really appreciate if you could leave a review of this podcast on your favorite podcast player such as Apple Podcasts. Leaving a review will inform other listeners you found the content on this podcast is important in the area of employment law in the United States. For more information, please contact our employment attorneys at Carey & Associates, P.C. at 203-255-4150, www.capclaw.com.

Hey, it's Mark here and welcome to the next edition of the Employee Survival Guide where I tell you, as always, what your employer does definitely not want you to know about and a lot more. Hey, it's Mark and on today's episode, I wanted to talk about issues that I'm dealing with to bring to your attention. And this really is the issue of the games employers play and knowing when the employer is playing the games with you. So why does this come about? I take intake calls, consultations every day.

And recently I had two consults on the same day that made me think about something I wanted to share with you. Both individuals who I talked to came across with patterns of behavior that employers were engaging them. And you have to understand when I'm doing an intake call, the person is sending us information with a very brief amount of data in an email or that my assistant will take down. And from that, those facts, essentially a very basic fact pattern about what's happening with them, I then have a call. a very basic fact pattern about what's happening with them, I then have a call. And through the call, I'm able to begin to figure out the patterns of behavior that the employer is engaging in to help me understand, well, what type of case is this? What do I tell this individual that they're – you know, the problem they're experiencing?

Because the caller in the consultation is only seeing things from their vantage point of, A, it's emotional. There's drama happening. Maybe there's a performance review or whatever that's happening. And I have to really poke into the fact pattern and ask questions in a very rapid style to obtain information from them. And what I discover is that most people, by no fault of their own, they're starting the process, and I'm going to explain now a continuum that happens, a transference that occurs from the initial call point to the end of the call that takes place. That's really what I want to share and also what the gimmicks and nonsense the employer –

that we find out through this very, very quick call, lasting anyway from a half hour to an hour depending upon the seriousness of the case. So the continuum is the person calls. They're a great deal of stress what's happening. Whatever the issue is taking place, it's generally a severance negotiation or they've been terminated or put on a PIP. But there's a lot of drama. And the prospective client is really uninformed about what's happening to them. This is a very common circumstance.

what's happening to them. This is a very common circumstance and it really gets the first point of here's the games the employers play. The employer is not educating their employees deliberately about the rules of engagement at work. And what I'm about to say is going to sound really familiar. Everybody goes to work. They have careers. They want to have their resume and their career experiences. Their life becomes their work, vice versa. Their identities meld with their jobs. There's a level of trust. I've been here for the company for eight years. Thus, I'm a loyal employee. Meanwhile, the employer on the same set of facts is saying, well, you're age 54 or your sexual orientation is this and we have a headcount reduction or the company is not doing well. And they're just opposite sides of the same facts. And most employees are now, I guess, realizing that Most employees are now, I guess, realizing that the employers are not there to protect them.

HR is not to be trusted. My wife sent me an article from – I guess it was CNBC this morning that there's now what's called loud quitting. And the date of this podcast is June 28th, 2023. So we know about quiet quitting. Now there's loud quitting. So employees are becoming aware and there's a transition to challenging employers and employees speaking out for – and it's about time. I've been saying this for a while. To – employees need to be dealt with in a more reasonable fashion and they're being – for years and decades being taken advantage of. But back to the point of employees really are not served with appropriate information

about the rules of engagement and how to deal with their employer. That is the essence of why I do these podcasts and I think you get that from listening to me after all these years. And this is what I say to people on the phone. So I'm going to take the person on the phone on the console and bring them from point A of drama and just can't believe this is happening. It's very emotional experiences for many people. Both these callers I'm referencing had a great deal of difficulty. I'm referencing had a great deal of difficulty.

One was filled with anger. Another was filled with anger plus tears related to the fact that these are two individuals that were both in their 50s and well-experienced. I mean we're talking corporate individuals working in later stages of their careers but just hitting a wall with their employers. And the reason is because they're getting older in this instance. In both these instances, they're getting older. And so what I'm trying to get across to you is that the employer is not going to educate the employees at any stage whatsoever about anything related to their protecting their jobs. I think you know that.

Why is that? Well, it's the easiest and cheapest way to manage people. It's lack of information. So where do people get their information if they're not going to get it from their employer about how to manage relationship? I want to say it's the most dysfunctional relationship that we have in existence, the employee-employer. And it's occurring at the same time that you're listening to this other vibe that's out there about DEI and all these social conscious issues and environmental awareness and corporations, all this garbage that's being put out there for marketing purposes. But if the employers – I thought about this the other day.

If employers really did care, if they really cared about anything related to DEI or anything related to making employees happy and whatever, well, wouldn't you think they would finally do away with this one simple thing and it's called the at-will rule? I know you know this phrase I just made to you, the at-will rule. It essentially says if you didn't know it, but employees can fire you and you can quit anytime you want. But this rule is so destructive and so racially motivated and age-related and everything discriminatory related and it's used as a way to get rid of individuals

and get rid of them legally. And so if you think that employers really care, they would really, in my opinion, get rid of the at-will rule. But it's coming. But it's not there yet. And some states have what's called a four-cause termination. I think Montana is the only state that has it. But we're seeing this happening to folks. And so these two individuals I'm

referencing, I'm trying to stay on track with what I'm sharing with you, employees don't understand the rules of engagement with their employers. And these little podcasts that I put out, these episodes, attempt to target the very issues that I see happening. So I had two calls that made me think about, well, why don't I just talk about the issue of what takes place at the very earliest juncture of the call? The person has experienced some event at work and they're calling me as the employment lawyer. Well, what's that conversation like? And how does it transition to proactive steps and process? And so I'm going to give it to you. I'll give you

some facts, each one of these, not to disclose who the employer or employees are or what's happening, but enough to give you the points of you're going to go from a transition of initial call to end of call, having process and roadmap and tools and analytics to think about what steps to take or not. Because when you call an employment lawyer, you're trying to get answers because the employer didn't give it to you. And so you speak to somebody like me who sees I'm at the front line, I see this crap every day, and you walk away with it. But you really have to understand one thing. You don't have to do anything at all. You can always leave your employment, not spend the money on an employment lawyer, okay? And I'll be the first lawyer to tell you that. You don't have to spend the money. You can choose to walk away. That's a hard choice for

most people because there's a lot of emotion and anger filled there. That same statement was given to both of these individuals on the call. One of the choices was you don't have to do anything at all. You can sign their release. It takes me about 10 minutes to explain the release agreement to you. So long as you understand it, you can sign it. And if there's a non-compete in there, you need to understand that too because that's going to hurt you. But the choice number one is do nothing at all, OK? Or spend an hour and have a lawyer look at the terms and explain the severance agreement to you and sign it and you're done. The second and hardest choice for people because they can't let it go. Why can't they let it go?

Because they feel that there's an injustice, an unfairness. One individual used the word due process. There's no due process in the thing. Well, I'm going to break the issue here. There is no due process in employment related with your employer. There's no like rules of engagement. There are laws to prevent discrimination. But that's after the fact.

It takes me to analyze the fact pattern and then bring actions against an employer either privately or in court. But that's the policing aspect. But at work, you work for the system of a private government, which I've said before, and that private government dictates to you what it wants to. And no one wants to get involved. You need to understand that loud and clear. Courts do not want to manage the business affairs of companies. Let's take a quick break. It's Mark Kim. We have a new product for you. It's called the Employee Survival Guide Let's take a quick break. about, for example, the performance improvement plan or beating them. And the second one about negotiating severance negotiation agreements, two of the most important topics that we see in terms of the web traffic and podcast traffic we have. So check out EmployeeSurvival.com and see if this can try to help you and you don't

need an attorney to use it. Thank you. And if you're not understanding that, well, wake up because it's a reality check. Courts are not there and they're really reluctant to police employers unless they really have to if you demonstrate that something unlawful happened. Let's say discrimination or a breach of contract. unlawful happen, let's say discrimination or a breach of contract. So as the individual moves to my call, they realize, okay, there's things that happen and I have to interject and pull out facts from them and try to pierce through the drama and everything that's happening in the anger to assess what are the claims. And so as I gradually move the clients, these prospective clients through the call of their analysis and answering their question because they asked me what the hell can I do about this?

I just had this issue happen at work. I've been demoted or sidelined or whatever because of some male employee took over my position, which in one case it happened to an individual. She was the most qualified and the male individual who doesn't do anything essentially got promoted over her. And the other individual was let go because the company – the business was declining. They were – and she was highly paid and she had the skeletons in the closet information, which I'll get to in a second. Essentially a whistleblower age claim is what she had. So the next stage of the process and the consultation I take these individuals through is look at the transaction that we're about to describe and look at it as a transaction. There is starting at the consultation call and ending at the point

you sign the severance agreement, settlement agreement, before you're filing a lawsuit. That is the task. You're not calling the employment lawyer, myself, to have a lawsuit filed on your behalf because you want some justice. You can do that, and I build those cases. But that is the last resort choice, and you don't want to engage that because, number one, you're going to be bogged down in a litigation for two to three years. You're going to be spending more money you need to know than you want to on legal fees to my office or any employment lawyer. And there is actually a choice to make that people go through and it's simply creating a

severance negotiation leverage against your employer to get them to pay you money. So as we move through this process, I say to folks, this is what your task is. Your goal is to get severance. Well, duh, you told me that. And yeah, most people want that, like 90 percent, 100 percent of people. that like 90%, 100% of people, and 80% of our clients will negotiate agreements prior to the lawsuit, not because the clients want that. You've got to understand something. It's the employers who are dictating that outcome. Let me repeat. The employers are making the statistics in my office because they are asking through negotiations to settle cases instead of litigate them.

I need you to understand that. 80% of the time, that's a huge number. The odds are in your favor if you try this process and you have facts. So there's two conditions, facts and claims, of course, and it's going to work in your favor. We just don't know the amount of money. But it's the employers who are driving this, the employers themselves. Who are employers? They're businesses. They take risks. When they do these analysis about letting people go and you're one of them, well, they've already assessed your age, your gender, sexual orientation,

discrimination aspects if they are any, or maybe they haven't because they don't have an HR department or maybe because they don't have any performance review processes, et cetera. So there's a whole variety of businesses out there and I have to sit there on this very short call and assess in a very quick triage-like moment and figure out what's happening. And I'm able to do that because it's like the analogy of the matrix and you look at the squiggly lines on the screen from the movie. They can see the patterns. And it's the same darn thing because employers are stupid. They do the same redundant things all the time.

And these are the practices because it's like a stupid computer. They just input in, input out. just input in, input out, and there's no analysis of changing directions because they don't want to spend the money on having lawyers assess every single one of these. And I apologize in advance. There's a lot of great HR folks out there, but I've encountered many companies that make a lot of dumb mistakes because I don't think they commit the resources to it. I don't think they want to. I don't think they care. And that's the point. You're working in a system that doesn't care about you. Why do you think they would care about the process of your separation in a way that you would feel comfortable with? Of course not. It's all about them. It's selfish. It's a dysfunctional,

sick, twisted relationship that they've covered over the gloss of, oh, hey, we're Google or we're Amazon or we're this large company and we have culture and diversity and all this. Do you get what my point is? They don't give a shit about you. So that's the point of the podcast, of sharing this frontline information to you. So the information sinks in, you share it with other people, do what you will with it. It's just public information. It's out there. It's just being reported to you in a way that's coming through my office and what I'm experiencing. And now you know. So back to our two individuals. We've now shared with them that there's a transaction taking place. There's a goal, severance. There's not a litigation because you want to avoid that. Now you know that. So what do you do? And I don't mean to be redundant on my

part, but I tell the next stage of the conversation goes like this. Well, you gave me a rough fact pattern, but I need to know more. And I can spend three or four hours on the phone with you. And I'll learn a lot more. But I want you to write out the full narrative in your own words. And don't worry about trying to speak to the law says or whatever. Just write the story of what happened to you. Why is that so important? Because that fact pattern generally from these individuals, people, you know, they're honest. You know, they've been obviously terminated or treated unfairly at work. They're going to commit their time and energy to conveying the information that happened to them and trying to self-advocate for themselves. And because they probably are good people.

I think people who have performance problems know it. And I don't really just – I don't really encounter people who have performance problems. I encounter people in large part about 95% of the time who are good folks, well-performing, and they just get obviously fired. And I say that generically across the board because that's the case. And when there are people who are bad performers, we can spot it very easily. There's a lot of red flags. So a lot of folks get good folks, well-experienced, get fired. And we look for presumptions about good performance and what takes place and patterns in the games employers play. So that's really the focus of the call.

So as we're speaking about the narrative, I'm encouraging folks and peppering them with questions about, OK, what happened about age or what happened about sex or, hey, if there was issues happening related to whistleblowing, anything you're aware of that really bothered you. And people do come forward. It takes a little time because they're not used to the call. They're not used to having this dialogue about, they're seeing it like one optic in terms of this happened to me. My performance was really good. My career has ended. It's a lot of internalized stuff that's taking place. And so I have to move them and shift them.

And once they become comfortable with the conversation, they do begin to share and they do begin to open up and broaden the horizon of what they're supposed to be looking at for leverage. And I want you to do the same when you're looking at your fact pattern, because you can self-diagnose your case if you allow data to come in. So now you have a broad approach. You know that you need to do that. Look at your own performance. You look at the things that happen to other people at the office. Are other people being discriminated against? How are they treated? I mean, you have so much information being shared with you by other people in your office, your colleagues. If you looked at the data in front of you, you probably can put together a case to present on your own behalf to

advocate because the discrimination that happens and the wrongful acts that happen to other people front of you, you probably can put together a case to present on your own behalf to advocate because the discrimination that happens and the wrongful acts that happen to other people can also benefit you in your own case. So let's, for example, if somebody got fired last month for age discrimination and there are facts there and you know it and the person was well qualified and they're like 65 years of age and they just got bounced out and then suddenly a 30-year-old replaced them, that's a good set of facts to include in your circumstance if you're of an age situation where you're being writing on the wall, so to speak, and they're targeting you and you're in your 50s.

You can use that other person's information to help benefit your case. I need to help you understand that. And it's not only just that example. There are a numerosity of unlimited examples. All the information is in front of you. It's just opening your optics to look at a broader range of field like a lens on a camera. And you can begin to pull in all this information because no one ever told you, what do I include in my narrative? Everything. Everything you witnessed.

Everything that kind of intuitively bothered the shit out of you, you put in your narrative. And if you can go back and look at other articles or podcasts that I'm putting out, you can see that there's a lot of data in front of you. And I'll just say this so I get it on the record for you. The narrative can include just about everything you are exposed to. These are programs and policies of companies, policies to pay severance. If they pay people severance differently, that information is valuable to you. Male versus female being paid separately differently because of severance amounts include that. If there are information about one person's promoted and you're not, or they don't get performance reviews and you do or they get pips and – you get pips and they don't, use text messages, Slack, internal communications, things you hear.

You go to meetings. meetings. One example was the individual in one of these two consultations I was doing, the person was told at a meeting that she was having with her colleague that she was having a meeting with a colleague and then the supervisors walked in unannounced in the middle of the meeting saying, how would you feel about we're going to promote him over you? I mean, right there, you know what? That doesn't sound great. I mean no announcement and there's no ability to apply for the job and it's going to promote. And then they come out the next day and they put an announcement to the organization that this person now is taking over this new role that you, this person had. I mean that'sre stuff. I mean that's not like – so other examples of – we have an individual who I spoke with.

In her fact pattern discussion, I was concerned that there was really an issue that was kind of a borderline age aspect because she was approaching her 60s. And then I spent more time on the phone. And you have to understand when you're talking with me on the phone, I'm reading the paper 60s. And then I spent more time on the phone. And you have to understand, when you're talking with me on the phone, I'm reading the paper every day. I'm reading the Wall Street Journal, New York Times. I'm scanning and looking for information. I'm looking at court cases. I'm just doing my damnedest job to stay current about what's taking place because that's usually going to be happening at the organizations where these potential clients are coming from. I need to see what the patterns are.

So this runs the gambit of I have a complete understanding of how private equity companies work, the number cruncher type people and really bad culture to large organizations like Google or Amazon. When you litigate for so long, you deal with so many people, thousands of people, you begin to piece together these – what the real cultures are like in these organizations because you see the outflow of people come to you. So in the second person I spoke to, after I spoke with her, I realized, oh, well, this was an issue that I had seen recently. Realized, oh, well, this was an issue that I had seen recently. It was involving a – I have to be very specific here to avoid disclosure. So it had to do with the education realm. The corporation provided education.

I'll just leave it at that. And maybe you get involved with – well, I'll just leave it at that. So the whistleblowing occurred with representations were given to students, misrepresentations. And it took a while to pull that out and it evolved into this aspect of the leverage would be, well, company not doing well and whistleblower and the leverage became what? It became the issue of, well, why would the company want this information out there if they're imploding? And they wouldn't. So they'd want to do what? Well, pay money. But you have to have a factual basis claim in the narrative, of course, to specify.

And this person has the skeletons in the closet of the company. It's all there because of the level of the position the person was in, et cetera. And so you had – through the consultation, the client realized – the prospective client realized the leverage factor was both age and whistleblowing. And the outcome I don't know yet because it obviously hasn't started yet. But I wanted to point out the – as you move forward in the process of the call with the prospective client, the client begins to understand the transaction, the leverage that's being built there through the discussion, understanding the ripping the blinders off, so to speak, of what the employer is doing in both of these instances. instances. In the other instance, just to summarize, the individual was a longstanding employee, well-regarded, long history career-wise across multiple organizations. And both individuals just top of their game, but experiencing those problems of the games employers play. I mean, so you have two having both good performance and the issue wasn't about the performance. And I need to tell you that that was the other pattern issue is you can be a really great performer, all right, and an employer can't peg you for performance issues.

And I always ask, well, what was the last performance review? And people say, well, three months ago it was a meets expectation. Well, good. Well, that was an admission of fact, a legal admission of fact that your performance was good. So if the employer tags you with a termination three months later after your performance review of meets expectation, that's a game. That's a false representation the employer has given you that you've been bounced out for performance. I'm going to ask, well, what happened in the three months after your meets expectation? I'm saying meets expectation rating at the date that the manager signed off on it, not because it involved 2022.

It occurred in March of 2023. That's the date the person made the admission that you're a good performer with meets expectation. And there's nothing that happened in three months' time. nothing to happen in three months' time. And it's a legitimate answer given by an employer, performance reasons given to terminate, but in reality, it's a false pretext. And I need you to understand that's a game that employers play all the time. I see that so often. I need you to understand that. I know I'm overwhelming you with a lot of data, but you're getting the gist here that the employers are playing a large game with you thinking that they're just abusing you as an employee, abusing you. I said it was dysfunctional. I'm not kidding. It's so

dysfunctional and so abusive. And people take it because, well, I can't protest because I'll ruin my career or whatever the thought process people have, they're so reluctant to challenge employers. Why? Aren't we allowed to have an equal say in our engagements in these relationships? We have marriages. We have law partnerships. We have business partnerships. We have, you know, democracy.

Well, all of that doesn't apply in the workplace because you have a private government. As a University of Michigan professor wrote about recently, a private government. I heard this phrase. I'm like, I was so enthralled. Like, oh, it makes so much sense. It's like, yes, I know it's a dictatorship. I always felt that way. But it's a private government.

They determine their own rules. And you're powerless. But are you really? So I'm giving this same level of conversation is occurring in my two meetings that I had in consult, explaining and ripping the blinders off the conversation of their optics of how they viewed themselves. And now you realize there's a whole shit show going on that you never saw being revealed to you, because I'm telling you that's what happens. And you begin to see how abusive the process is.

And you probably should feel this juncture if you're going through something like this that, wow, this is really making me unsettled and I'm really pissed off. And wait a minute. What can I do? So now is the part of the conversation. The latter part of the conversation, I have folks and I say, OK, here's a roadmap of what you can do with it. The narrative, remember I talked about that at length. It's the entirety of the case. It's not what I'm going to do with it. It's what your facts say. So the narrative is critical. The next pieces of the puzzle of the process is this. I take the narrative, we investigate it. That's what lawyers do. You pay lawyers to ask questions

about the facts and to question you and doubt the accuracy of your facts or pull more information out or all the above. That's what the employer or the employment lawyer is doing. Someone has to do that to figure out the stupid effing games the employer has been playing on you. Now you get it. Once we have the affidavit complete, we know what the claims are. We tell the employer. We give them a notice of claims letter. A notice of claims letter spells out in summary form, you know, here's XYZ claims you have. And at the bottom of the letter, it says, don't destroy any documents. Preserve.

So it's called a litigation hold. And it's used in every single case we have. And it's designed to ensure that they don't destroy their stuff because emails get backed up and deleted. And they also tell their insurance carrier they've received one of these notice of claims. And so it's a very legalistic and important document to use. And my opposing colleagues know that I use it all the time. The next letter we send across to the employer is a demand letter. It's just copy and paste of the notice of claims letter,

but it leaves out the litigation hold letter and it puts in a demand at the bottom. It starts the bidding because you have to start the bidding because the employer is not going to make you an offer. They're going to make you an offer in your severance agreement, but you need to counter offer in your demand letter. So if they presented you a six months of severance, you're going to counter with like two years or whatever it's going to be of your salary or whatever the value of the case is to start the bidding. But high enough in your demand to leave room to back down into a negotiated position that you're willing to accept. And eventually – so when I sent off the documents, I sent them to – forgive me, but I have fun in my job and this is one of the parts I really enjoy. I get to send an email to the CEO of a company.

Typically, I'm going to have all the internal email addresses, okay? And oftentimes we – like say a private equity company, I'll send it to the board of directors because the person will have access to those. And sometimes board of directors of private equity companies want to know, especially the minority shareholders of the board of directors want to know what's happening at the organization. And we send it to the supervisor, we send it to the CEO, we let everybody know, I only have one shot to do this because lawyers can't talk to a company once their attorneys respond back and saying, we represent so-and-so company. So when I send the email, well, guess what happens when you get an email? You open it. You're curious because you know about the issue involving so-and-so employee as the manager. You could just fire the person. Well, what are they saying now?

And they can't not open it. They open it, they read and they get this affidavit that's attached to it. And they're like, it's a shock and awe factor that's intended in that result. Because I want them to see the entirety of the problem they themselves, the employer, created. The employer created these fact patterns. The employees just went to work to have a career. The employers made the steps and decisions to do certain things. We're just calling it out. Guess what happens? The employer never, ever writes an affidavit rebuttal back about what the client said in the client narrative. Fact. It never takes

place because it's against the employer's interest to do that. They will eventually do it in an agency file and saying admit, deny each paragraph of the affidavit. But they do that after talking with an attorney. And they leave the employee to the proof of the matter. But you'll never get back a statement of facts rebutting what you had said in the detailed narrative. So you need to know that. And you really don't care what the employer says, by the way. And I also communicated that as well during these two meetings and these consults. You really don't care what the investigation of your internal complaint was by HR. People always

ask me the same, well, they never told me the response. Well, what do you think they're going to say? They're going to say, well, you're right. No, they're not going to say that because it's the game they play. And they're going to basically protect themselves at all costs and lie to you. Lie, outright just lie to you. And they'll lie to you in legal proceedings as well. I need you to understand that. Happens all the time. Because the facts given by an employee generally are very, very accurate. Even though my opposing counsel will, you know, they'll say, well, that's not true. And I understand this aspect that there are two sides to every communication, every story. There are two sides.

But when you spend the time on these cases and you read these and develop these narratives for these clients, you get this overwhelming presumption that something's drastically wrong. And I'll give you an example. In one case I did, and I won't give context or time, in the whistleblower case, we wrote the affidavit narrative and we spelled it all out. Well, what did the employer do? we spelled it all out. Well, what did the employer do? They paid the demand. It was a multiple six-figure approaching seven-figure response. There was very little negotiation. They just paid it. They maybe bargained down maybe $25,000. But it was the power of the affidavit. And actually, there was some stupidity involved as well. The employer told the team after the client was let go to stop doing something or whatever. And I can't be very more specific. But it was just outright idiocy on the part of the employer.

But the point is that the narrative itself, the thing that you were like, you know, it's very hard to write about it. It takes too long. It resulted in a full value almost settlement demand being met by an employer because the employer was scared shitless of what a government entity would do. OK? So this narrative, I can't emphasize how important it is. And these employers take it very seriously. As opposed to this, what do other lawyers do? Okay, just to kind of give you context. Some lawyers will write a lawyer letter. And it's a

discussion by the employer, by the attorney of the employee saying, my client's been harmed XYZ pay up. Well, that's not really helpful to who? The employer, because they're going to write you a check. Well, how are you going to convince them something happened? They know what they did. But I've learned over the years, 28, I think I'm moving on now. It's moving really fast now in terms of the amount of time I've been doing this. But I've really learned and I get feedback from my opposing counsel that I need you to understand this really important aspect. The narrative is very valuable to the employer because they see the facts at a very minute, detailed level and they are allowed – their attorneys will investigate those facts. I mean the law firm representing the employer will obviously spend a lot of money and time investigating your fact pattern.

They're not going to tell you the response of it, but it helps them understand the accuracy of the claim. accuracy of the claim. The narrative you write, which is – it gets orchestrated, curated by a person like myself, an employment attorney. They will – the attorneys on the other side will see the curation of what I'm saying in the language of the client narrative, all right? And they'll be able to see the liability. Not the stupid lawyer letter that some lawyers write saying, you owe my client X, Y, Z, because, well, that doesn't help. I mean, I'm not joking. I asked opposing counsel at prestigious law firms after we're done and says, what'd you think about the affidavit? Did it help you guys understand the case? And of course, presumptively, they all say say yes because no one does it.

The power of the affidavit is crucial to your case, large or small. It helps. It helps explain the bare facts and the specific facts of what's happened and convince the employer. That's the point of the narrative. It's not what I'm doing. Yeah, I'm going to put up a website and have podcasts and blog posts and, yeah, how many cases I litigated over 20 years. Who cares, okay? It's what matters in the client affidavit that matters.

That is the point of what I'm trying to get across to you in changing your focus of I've been harmed and injured on the initial part of the call. And later on, I discovered through the discussion with me that, oh, the narrative, I got to write one and it's really important and here's why. I'm just giving examples. The narrative cuts through all the shit the employer gives you and all their game playing. That's the point. Your stories are real. You are the victim of discrimination. You are the victim of a breach of contract. You are being unjustly treated. But it's the facts that have to set you free or support you in terms of what you're saying. But don't just come at it with, I've been, don't let your anger and your emotions overcome your decision-making process or overcome your digestion of the advice being given to you.

This does happen. People will be overwhelmed by the circumstance of their case of what took place. I mean people work and their identities are melded to their work. And when they're fired, it's like getting death in the. And it's harsh and they lose this part of themselves. And sometimes they can't release it and they can't transition into the transaction I'm trying to describe to them during this, you know, half hour, hour long call that I'm having. And have them get to realize that, you know, there's something I need to do here. There's a mission. I got to convey these facts in an objective way.

I need to do here is a mission. I got to convey these facts in an objective way. So this triage that people go through in these phone calls, it is moving. And people do transition at the latter part of the call of a sense of relief because someone actually, A, listened. B, told them exactly what the F happened to them by their employer in specific and because it identified the patterns that the employee slash prospective client understood to be true in their own perspective. And it's a really powerful conversation. And it happens all the time.

I do this calls every single day. But it just dawned on me, I really needed to share this part of the process, the early stage when you call me, this is what you're going to go through. So that when you talk to myself or any employment attorney, the National Employment Lawyer Association has attorneys across the country. They're all good folks. They all do the same thing I do, representing employees. And they're there to help you, the National Employment Lawyer Association. So look it up. Find a lawyer in your state. And when you go through this process, you understand at the end of the call that, A, what are your choice?

You can do nothing at all. Two, talk to a lawyer for a half hour and understand the terms of the severance agreement or understand the terms of you need reasonable accommodations or do something or three, you're faced with the possibility of a severance negotiation being one is in front of you now or one's coming to you because you're at the PIP stage or the writing's on the wall. And you understand that, okay, do I want to make that investment in legal fees to get an outcome in the future of severance monies? Because I'm going to need that once I get let go. Because don't presume you're going to get severance at the end of your employment, because maybe you're not. And how are you going to pay your bills? I mean, we all have bills to pay. So think of the transaction of this very short call with me now from the stage of the initial call of the emotion and anxiety to

now faced with the transaction. And you have to figure out what is your goal? What do you want to happen for you? I don't care what happens in terms of your choice. And that's what I say to everybody. And it's kind of like I'm doing a consultation with you now as I'm doing this episode, because I wanted to share with you literally what I go through in this process and what you'll go through in this process, figuring out what is the goal here. Yeah, I know it happened to you. All right, get over it. But now what are you going to do with it? And what is that choice you're making? Is the right choice for you? And what's that choice going to cost you? And people ask me all the time, I can't give you an estimate what's going to happen because I can't predict the future.

Yes, I know what people pay me. I can keep track and look at data. I have data. But I can't give you estimates of what takes place because I can't predict your future of how those employers act. We do know some raw data. And I told you before, 80% of the time, employers do resolve cases prior to a lawsuit. You may have to file an EOC case to the agency, but that's not public in terms of a Google search. But 80% of the time, you're going

to resolve the matter before a lawsuit's filed because the employer, not me, but the employer is making that outcome for you. They just don't know the amount of money they're going to pay you. And the amount of money is really determined of what your affidavit says. Now do you get the full circle of the analysis and the logic of the process, the affidavit? And you use the attorney and you have to be very specific about what you're alleging and you have to be very forceful. And I'll leave you this aspect of what I tell people the latter part of the call is. The severance negotiation, after I send the email to folks through the employer containing the affidavit, the notice of claims and the demand, later on in the negotiations as we're exchanging counteroffers, I'm going to draft the complaint.

Yeah, I know I told you that we're not going to file a lawsuit. And I don't want to file a lawsuit. But I want the employer to know. And if the employers are listening to, fine. You have a choice. You can incentivize this particular employee and pay them and negotiate what they want in severance or face the gauntlet of a lawsuit in federal court. So I draft a complaint, usually styled as a federal complaint. And I put the fact pattern from the affidavit verbatim.

I change it by pronoun and context and grammar, of course, to make it fit because I'm going to write it instead of first person and write it in second person. And so it changes, but it's the same language the person used in the affidavit now appears in the draft proposed complaint that I'm going to send across to the other side, usually through their attorneys, and they share it with their client. Why do I do that? A, because I'm escalating the shit out of the case and I want to make the momentum. You watch a sporting event. I always think about tennis matches at the US Open. You feel that momentum when someone's losing because – and a person is fighting, fighting back. But you feel the momentum on the opposite side when the person is winning and you want

to be winning and appear to be aggressive in this no-take-prisoners approach to the process and force the employer because that's what you are doing by your affidavit. I guess I kind of want to end in that point where, you know, the culmination of this entire conversation that I'm having, again, it's only happening an hour, or I'm sorry, less than an hour, typically a half hour, but I'd say realistically a half hour to an hour because that's how long it takes for you and I to have a conversation and you to realize and me to understand what's happened to you to give you feedback. That complaint is just the pinnacle of the negotiation that you're going to go through with the employer. And you usually use it at a point in time when parties are, you know, employers spending, you know, $100,000 or more. There's obviously the more money being on the

table, there's liability. So that's the bluff that you pull out. OK, so if you didn't know it, more money on the table, employer is wrong. OK, simple. Everybody understands that. That's your task. And the you have to read the tea leaves through the numbers, so to speak. The employer is not going to tell you you're right. OK, so you can read the numbers. If it's two, three hundred thousand dollars, you know you're on the target. Your affidavit did its job. Now the complaint does its job. What are you doing with the complaint? You're telling the employer that within a very short window of time, I'm going to file this lawsuit. Typically 90 days, if you are an EOC case and you got to, I request a notice to write the suit and I box the employer into a time frame. I let the clock tick because people can't stand it and they're watching the deadlines.

So as we're approaching the 90th day, which happens all the time, employers get scared. Sorry. Yeah, it's true. Employers get scared, scared of multiple aspects of public PR debacle, government calling SEC, Securities Exchange Commission, inquiring, you name it. And that's the point of what I'm trying to get across to you, that you have so much information at your disposal. And if you share in such a very unique way through your affidavit and eventually through the draft complaint and negotiations, you can push that employer, push them into the position you want them to pay you

money based upon legitimate facts and legitimate claims. That is a process that's used time and time again, 80% of the time. You didn't know that because where are you going to get that information? It's not out there. But now you know that's the process and employers are scared shitless of you. When you hit the money correctly in your affidavit by your facts, I can't tell you the pleasure I get and the client's pleasure when they start to hear the ring like playing a pinball machine and the numbers start flying up. And, you know, you're more money being flown and thrown at you because they want to convince you to shut the hell up and go away and sign a release agreement because they want you under wraps because you call them out. That's the game employers play. It's real. It involves millions, millions of dollars every single year, if not billions of dollars. There's a high stakes game that you're part of a system and you need to know how to play it. These are the games employers play,

but these are the games employees play. They're not games, they're claims because things happen to them. And if you didn't find this information valuable, then you're out of your mind because this is exactly what's happening every day. I didn't pause literally once in this entire episode with you because I'm literally sharing with you what I go through every single effing day with these employers. They are abusing you. It's dysfunctional. And I'm now giving you tools to fight back without spending a fortune doing it, but being effective. But all of it is based upon your affidavit. Your affidavit is gold if you have those facts. based upon your affidavit. Your affidavit is gold if you have those facts. And so there you have it.

I've shared with you what I wanted to share, what I would do through a consultation. Now you would hear that. And it's a level of detail that should be overwhelming because there's so much information and choices in front of you and so much analysis you need to look at, but also an awakening that takes place for you that you need to go through. And if I'm shifting you, great. I've just touched one person today, fine. I've done my task. Share it with somebody else. But that's what's happening in every single employment across the country, every single job place. This is happening to someone every single day across the country. How would I know that? Well, someone every single day across the country. How would I know that? Well, because I have clients across the country. So I'm exposed to a variety of

situations across the country, but all these patterns, all these games employers play. So there you have it. That's what a consultation would look like. That's what I wanted to share with you. Both of these individuals were transferred over to a place of readiness to make choices, whatever their goal was. But that's the process you go through when you talk to them on the phone. Hope you found it really helpful and it helps you kind of deal with the situation you're having. Until next time, have a great day. If you like the Employee Survival Guide, I'd really encourage you to leave a review. If you like the Employee Survival Guide, I'd really encourage you to leave a review.

We try really hard to produce information to you that's informative, that's timely, that you can actually use and solve problems on your own and at your employment. So if you'd like to leave a review anywhere you listen to our podcast, please do so. And leave five stars because anything less than five is really not as good, right? I'll keep it up. I'll keep the standards up. I'll keep the information flowing at you. If you'd like to send me an email and ask me a question, I'll actually review it and post it on there. You can send it to mcaryu at capclaw.com. That's capclaw.com.