Employment Rights | Improper Payment Rates for Unemployment at 14%

Washington has a relatively high level of improper unemployment benefit at a rate of 14%, according to a Department of Labor report.

Improper payments most likely occur when recipients continue to claim benefits after returning to work, employers or their third party administrators do not submit timely or accurate separation information, and and claimants fail to register with the state's employment service.

For Washington, the leading cause of improper payments related to workplace issues at 72%, then the Benefit Year Earnings, Separation Issues, and whether the employee was Able and Available to work represented the next highest causes of improper payments from 11%, 6%, and 4%.

An employment law lawyer can help you with unemployment insurance issues, as mistakes are made!

Wal-Mart v. Dukes

A major U.S. Supreme Court recently reversed The Ninth Circuit to not recognize about 1.5 million female employees at Wal-Mart stores. The workers sued Wal-Mart, collectively, for sex discrimination in pay, promotions, and other employment practices. The Wal-Mart ruling did not examine whether the claims had merit or not, but rather the Court concluded that each plaintiff will have to pursue her claim individually.

The decision was 5-4, with the traditionally conservative and liberal justices (Supreme Court judges) opposing one another. The dissenting four justices concluded that the "practice of delegating to supervisors large discretion to make personnel decisions, uncontrolled by formal standards" was enough to unify a group of plaintiffs for a common question as demanded under Federal Rules of Civil Procedure 23(a).

The majority implied that if a company has a written policy that forbids sex discrimination, then this policy may protect the company.

Employment Rights | Consumer Class Actions Are Hampered

Generally, when you sign a contract, you agree to its terms. Whether you read the contract or not is no excuse. Yet sometimes if the contract provision is so unfair or unjust, the provision may be considered unconscionable.

Arguably there fraud schemes on massive scales. The cost of sales tax for just one person may be only a few dollars, but if a phone company rips off thousands and thousands of people by misrepresenting “free” phones, then the money adds up: it may be unconscionable.

So, to protect consumers, class action lawsuits are available. This type of lawsuit groups similarly situated individuals (the class) against a common enemy, like the thousands of consumers against a phone company.

Recently, the United States Supreme Court looked at a class action lawsuit against AT&T. The result was devastating for consumers and a victory for companies. The Court held in a slim 5-4 majority that pre-dispute mandatory arbitration agreements that ban class actions are enforceable. State law to the contrary is preempted by the Federal Arbitration Act.

What this means, specifically, is that the Supreme Court upheld AT&T’s contract provision that demanded arbitration. Arbitration is a method to resolve a legal issue, which is different than a trial at court. Arbitration has no jury, and the rules are less strict. Arbitration is usually considered to be a waste of time and money for attorneys that represent plaintiffs, because the outcome of the arbitration will generally not be the end of litigation. Arbitration is like a speed bump, or an extra step, that costs a lot of resources.

The Court’s decision also means that the Federal Arbitration Act will trump a state law. This decision went against California law.

So, for the Supreme Court to uphold arbitration, this will make it very difficult for lawyers to represent plaintiffs in class action lawsuits. It will be too expensive. As a lawyer that practices employment law, I realize how complicated these suits are – it was a big gamble for lawyers to take on these cases.

There is a possibility that the new Bureau of Consumer Financial Protection, headed by Elizabeth Warren, to limit the scope of the Supreme Court’s ruling. Or, legislation from Congress may restrict unfair arbitration clauses. Yet there is no likelihood that the government has the ability to act upon this case in the near future.

Employment Rights | Which Court?

"See you in court" is the tag line for any decent movie depicting lawyers.

Yet, unsurprisingly, the real world is not as colorful as the silver screen. "See you in court," realistically, may translate to "See you court, but which court remains to be known, since we're still undecided as to whether or not it would be more advantageous to file in District Court or Superior Court."

District Court in Washington State has jurisdiction over civil cases that are $75,000 or less. If more than $75,000, then the cases go to Superior Court.

District courts have lower filing fees, have trial dates much earlier, and have more limited discovery rules. In short, if you take a case to district court then it is cheaper and faster, but you have less opportunity to gather evidence to back up your claims.

Juries only consist of 6 people in District courts, but Superior Courts have 12. The courts also has different rules about how to write forms and when to file them.

The Washington State Small Claims Court, the fastest of the three options discussed, only hears cases worth $5,000 and below. There is an opportunity to settle before the trial with mediators, there is no jury, and appeals are from the record to Superior Court.

See you in court!

Employment Rights | DOL

Are you aware of the United States Department of Labor?

This question may not win you friends at a cocktail party, but like any federal government organization it demands examination, especially if you want to learn more about labor and employment law.

The DOL's mission is to foster, promote, and develop the welfare of the wage earners, job seekers, and retirees of the United States; improve working conditions; advance opportunities for profitable employment; and assure work-related benefits and rights. 

Hilda Solis is the current Secretary of Labor, who presided over the 2009 Obama stimulus package that extended unemployment benefits. She also spoke out against the Wisconsin governor during the 2011 union fight:

"The governors in Wisconsin and Ohio aren't just asking workers to tighten their belts, they're demanding they give up their uniquely American rights as workers."

The Department of Labor website provides helping job-seeking information, statistics, employment-related news. For lawyers, the DOL posts helpful briefs under the appeals page.

Describing the DOL is like taking a drink from a fire hose . . . it is overwhelming! Tune in for future installments.

Employment Rights | Unemployment Compensation Process

So you lost your job or one of your workers is out of a job. How do you deal with unemployment compensation?

The former worker applies for benefits, which may be done online. After sending a completed application, the Employment Security Department will send a request for more information to the former worker’s mailing address. After communicating with the employer, a written “Initial Determination” granting or denying benefits will be mailed. The worker or employer that loses has the option to appeal within 30 days.

On appeal, many employers secure representation from human resources or a lawyer who practices employment law, but few workers acquire representation. People have legitimate reasons to go-it-alone: maybe they are resourceful and intelligent, or spending money on a lawyer is money they don’t think they have.

The fact is that your chances of winning greatly improve with representation. According to a New York study, 90% of the claimants are unrepresented, and those with representation enjoyed a success rate of nearly double that of the claimants without representation.
 

If there is an appeal, then the Office of Administrative Hearings will conduct a hearing. Most always the hearings are by telephone. You may ask for an in-person hearing, but usually these hearings occur in highly unusual circumstances. Interpreters are available.

The aggrieved party has the option to appeal within 30 days to the Commissioner of the Employment Security Department. There, the Review Judge will review what had been said at the hearing. Each party may submit a 5-page maximum response. The Review Judge may make new findings of fact or conclusions of law, or may send the case back down to the Office of Administrative Hearings to do the hearing over again.

If you lose on appeal to the Review Judge, then you have 30 days to appeal the decision to the Superior Court, which is governed under RCW 34.05.570(3). After filing, there will be an opportunity to submit a pre-hearing brief, or a document that argues why you should win according to the law and facts in the record. The other side has an opportunity to respond, and then the aggrieved party has a change to submit a reply document. The hearings are in front of a judge and usually last about 30 minutes.

The main idea is avoid appeal - talk to an employment lawyer to help you avoid mistakes and long waiting periods between appeals.

Employment Rights | Can I Avoid A Lawyer?

During this Great Recession more and more people are watching their finances like a hawk. Lawyers are expensive, so can you avoid one?

You should research the basics of your legal concern, but only in rare circumstances should you proceed alone. Your best bet is to get an attorney.

Generally a good lawyer will save you a lot of money. For example a good employment lawyer will help you avoid costly situations and dead ends.

But do not rely on a lawyer to do everything. This is dangerous. You should not expect a lawyer to pull rabbits out of his hat or solve all of your problems with a wave of a magic wand.

Rather, take ownership in your legal dispute. Treat a lawyer like a teammate. Learn the basic law, be organized, ask questions, and keep your lawyer in the know.

There are several wonderful resources for non-lawyers. For a general concept of law I recommend No-Lo Guides. Courts have helpful guides for people who represent themselves. The guides often describe the law in simple terms.

For Washington residents, I recommend Washington Law Help, which provides helpful advice in simple and straightforward language. Note that the website is provided as a public service by NW Justice Project, Columbia Legal Services, and other respected agencies.

Most often, I meet well-intentioned people who find the right law, or even the right analysis of the law. Yet the problem is that they do not interpret the information correctly. They misinterpret the law or they do not analyze their circumstances appropriately. In extreme cases, people think they deserve millions of dollars when they are lucky to get anything. In closer examples, people do not organize their cases in ways that maximize their chances of winning.