Workplace law is misunderstood by lawyers and non-lawyers alike. Fortunately employee rights attorney Donna Ballman has written Stand Up For Yourself Without Getting Fired to help educate employees and their potential advocates about how to protect their rights in the workplace. Lawyers and non-lawyers alike should find this book useful because it provides common-sense advice in plain language to a wide variety of issues that arise in the employee-employer relationship.
The phrase “resolve workplace conflicts before you quit, get axed or sue the bastards” is the subtitle of this book. This book gives good advice as to how to counsel client’s and potential clients. A lot of Ballman’s wisdom might be ingrained in experienced employment law practitioners but I think it is useful to young attorneys wanting to start in employment law or a more experienced attorney who wants to expand their practice into employment law. Of course it’s not always possible to resolve workplace conflict short of quitting or getting axed. That’s why Ballman’s book gives good advice to employees and their advocates about how to build a case in order to successfully sue the bastards.
Though this book isn’t written for lawyers and I think it is useful for employee-side employment lawyers of all levels of experience. For the beginning level-practitioner this book is good for issue spotting. It is also a good way for beginning lawyers to avoiding cases that seem to be good on the facts but that will be dismissed as a matter of law. Another strength of this book is that it shows many examples how a reasonable, smart person should defend their rights at work and how an ill-informed and unreasonable person acts in the same situation. The book provides plenty of ways that you as a lawyer can advise employess. Also by showing how what actions the theoretical dumb employee would take, Ballman’s book shows you which cases to turn down and gives you an idea of when you should cut your losses on a case if you are already involved in litigation.
If you understand the basics of employment law litigation, this book is still worth your time as well. First of all it is never a bad idea to hear someone else’s take on the basics. Also the book has lots of little nuggets that someone who practices employment law will appreciate. A hot topic in workplace law is workplace bullying. Currently there are no laws that specifically address workplace bullying that isn’t motivated by sex, race, religion or other protected factors. In short, it’s not against the law to be a jerk at work or a bad boss. However Ballman suggests that if a worker works with other workers to stop a bullying boss that activity could be protected concerted activity under the National Labor Relations Act. Another tip I picked up was requesting the IRS determine whether someone is an employee or independent contractor through filling an out an IRS SS-8 form.
My employment law practice spun out of our firm’s large workers compensation practice so I represent mostly blue collar employees. Since I represent mostly blue collar employees, I am not hugely familiar with non-compete and non-solicitation agreements. I found Ballman’s straight forward explanations of these agreements easy to understand. Furthermore her explanation gave me a road map of how I can feel confident in advising prospective client’s on non-compete agreements.
While Ballman’s book is good, it has a few weaknesses. I believe she is wrong in advising injured workers that they are probably okay going to a doctor recommended by their employer. Many states, including Nebraska, give employees the right to choose their family doctor to treat them for a work injury. Ballman should have pointed out that fact. Also Ballman’s assertion that it is probably okay for the company to choose an injured worker ignores the fact that many employers steer their injured workers towards occupational health clinics like Concentra that sometimes conspire with unscrupulous employers and insurers to wrongfully limit the medical care of employees. I also found the section on asking accommodation under the Americans with Disabilities Act to be incomplete. Management-side defense lawyers are scared of recent changes to the ADA which shifts the focus on whether an employee is disabled to whether the employer made reasonable accommodations of the employees disability. Savvy management side lawyers are already advising HR on how to use the mandated interactive process to beat ADA claims. This book provides little or no guidance how an employee should handle the interactive process in an ADA claim.
Hopefully whatever flaws this book has are fixed for a second edition of this book. But even with the flaws I listed above, it is still worth the time of lawyers and lay people alike to read Stand Up For Yourself Without Getting Fired.
Nebraska Workplace Lawyer 