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.

Employment Rights | Documentation

Documenting the ups and downs with your loved ones and friends may not float your boat, but whenever there is a problem at work, write it down. And keep it handy.

If you ever need to speak with an employment lawyer about work-related issues like unemployment or discrimination, the lawyer will ask you what written information is available.

In law, documentation is helpful for the following reasons:

1.     You boost your credibility in court. In a common “he said / she said” workplace situation, the one who records what happens will generally enjoy more credibility that an opponent who  relies solely on oral testimony. A judge, lawyer, or jury will likely view the record-keeper as someone who is more reliable.

2.     Time is on your side. Writing down what happened on the same day the incident occurred improves the weight of your evidence. Over time, people tend to forget what happens, or the way they interpret will change. For example, a joke that falls flat may devolve into a “nasty and hurtful remark” or, conversely, it becomes more and more "hilarious.”

3.     When you write, cite examples. If someone describes a boss or employee too broadly, the result may be more harmful than helpful. Calling someone a “nuisance,” “horrible,” “hurtful,” “dangerous,” and so on may evoke strong emotion, but the facts that led up to the emotion are not resolved. Compare “Mr. Santoni was a horrible boss" to "Mr. Santoni was a horrible boss because he informed me on April 12, 2010 that he modified confidential accounting records before the end of every quarter, and threatened to fire me if I told anyone about it.”

4.     Focus on what happened, not your emotion. If your tone is angry or abusive, then how did you likely behave in the heat of the moment? We are not robots without emotion, but unless if you are a trained spy, your emotions will probably get the best of you from time to time. Note your emotions when you write, but focus on what happened: the who, what, when, where, how.

Employment Rights | Freedom of Speech: What Do You Know?

Many people assume that the US Constitution applies to every American. Were you aware that the Constitution is mostly confined to matters that involve the government?

When a person says, “I have the right for freedom of speech.” The First Amendment protects freedom of speech, but the right only applies if there is a state actor.

For example, a police officer works for the government, so the officer is a state actor. The Constitution frames what the officer can or cannot do. A policeman cannot punish a person for speaking freely, per the First Amendment. In contrast, your friend who has a job at Home Depot, a private company, does not violate the First Amendment if he punishes you for what you say.

Most every law has boundaries. For example, in some situations a person may not have the freedom to say just anything. A person cannot yell, “There’s a fire, everyone out!” in a crowded movie theater when in fact there is no fire.

Also, communicating falsehoods about someone may be illegal. Defamation, which is a false statement concerning someone that is published and damaging to the person’s reputation, curbs freedom of speech. Perjury, or lying while under oath, also curbs the ability to speak freely.

If law has a favorite color, then that color is probably gray. Because I am a labor and employment law lawyer, I have come to realize that law is rarely black and white, cut and dry, or all or nothing. 

Cheers! You have the freedom of speech in America! Well . . . mostly.

Employment Rights | Wisconsin Struggle: What All The Fuss?

A bitter struggle over collective bargaining rights is raging in Wisconsin. I deal with many workplace issues as a lawyer, so this story is of particular interest to me.

In short, Wisconsin Governor Scott Walker, a freshman Republican, seeks to curb collective bargaining power from government employees. He argues that these drastic cuts are necessary to balance the state budget, which has $137 million shortfall.

Public sector employees, or those who work for the federal, state, or local government, enjoy several benefits, like health care and retirement benefits.

To curb benefits through negotiation is one matter, but what is significant in Wisconsin is that the very right to bargain for those benefits is in danger. Governor Walker seeks to permanently undermine a worker's right to bargain at the same time with other workers. 

If Gov. Walker has his way, government workers will have to may more towards their benefits out of their own pockets. It amounts to a big pay cut, but more importantly the workers will no longer be able to rely on the unions that negotiated the agreements for the workers in the first place.

Several different unions and mostly Democrat-leaning supporters oppose Gov. Walker. They argue that a decline of benefits will undermine the middle class, and widen the gap between rich and poor. The top 1% of Americans have an income of more than $348,000 a year, compared to 1 in 6 Americans that liven below the poverty line.

Employment Rights | Unemployment Numbers

Although the gap between the rich and poor is growing wider and wider in the US, most anyone around the world considers the American economy to be strong. Among other indicators, the GNI per capita in America is $47,240, which is about eight times as much as the average Chinese individual.

How does the world recession affect the American economy? Specifically, how widespread is employment? According to the official US unemployment rate throughout most of 2010, about 9-10% of Americans were unemployed.

Upon closer scrutiny the numbers are far worse. The US Bureau of Labor only counts Americans who are out of work and have actively looked for a job in the past four weeks. This means that people who suffer long-term unemployment - those who have not bothered to look for work in the past four weeks - are left out. Rather, these workers are "marginally attached" or "discouraged." If you consider everyone that doesn't have a full-time job, the number climbs to 17%.

There are a lot of people out of work: one person in seven. Small wonder I get several calls about employment issues each week.

Finally, note those who suffer from feelings of job insecurity, difficult work environments, and underemployment in addition to the number unemployed.

Employment Rights | Damages?

I get a lot of calls from people who were unfairly treated at work. Almost all the calls report mistreatment over a long period of time.

I care. I do what I can to listen and empathize. But the hard and cold truth is that money is always a major concern.

A lawyer who represents plaintiffs in employment law needs to know how much the lawsuit will likely cost. Most workers cannot come anywhere near to footing the bill for 100s of billable hours, so a lawyer takes a big risk if decides to take a case with the aspiration to win on a contingency.

The practice of law has two parts: the law part and the business part. Even if you really did fall victim to discrimination or retaliation, maybe your case just is not financially worth it.

How do you separate a lucrative case from a lemon? You need to show damages. For example, if you were fired, then the length of time between getting fired and getting a comparable job may be significant. Damages like emotional distress, which associate bad health to the bad conduct, are usually harder and more expensive to prove.

In criminal law, you have a right to a lawyer. We've all heard the police read the Miranda warnings to a suspect in the movies! But in employment cases, unfortunately, you don't. You need to have a case that works in both legal and fiscal terms.

Employment Rights | Aggressive Tactics

Today I received a 75-page packet. I groaned.

Whenever I receive a big packet in my office mailbox, I know it’s no Christmas present . . . unless you ask Santa Claus for pages and pages of documents to review!

A lot of clients want a lawyer who is "aggressive," which is understandable because many clients are in lawsuits because they feel hurt. But, realistically, aggression should always take a back seat to being reasonable. My motto is to "get the job done right."

The best lawyers I know get to the point. They are able to clearly summarize complex ideas. A less skilled lawyer prattles on and on or dumps unnecessary information. But quantity is not quality.

Today’s mail was a needlessly aggressive gesture. The court will probably assume that the opposing counsel just dumped the information, posturing to impress its client. The lawyer did not help her client.

In short, hire a diligent lawyer who will not bill you for unnecessarily "aggressive" tactics. Get a lawyer who gets the job done right.

Employment Rights | WARN Act Ruling Favors Workers

Judge Smith from the 9th Circuit just recently held that if an employee leaves a job because the business is closing, that employee has not “voluntarily departed” within the meaning of the WARN Act. Instead, there was an “employment loss.” Michael Subit successfully argued the case on behalf of Frank, Freed, Subit & Thomas, LLP.

The WARN Act is a law that requires an employer to order a plant closing or layoff only after “warns,” or gives written notice, to each affected employee. 29 U.S.C. § 2102(a). If the employment loss is for 50 or more employees, then the notice must be 60 days. If you have additional questions about the law, ask a lawyer.

This case is good news for workers. If you are working at business that is about to lay off a lot of workers, then you may be able to quit before the losses actually happen.

You may have more time to find a new job!

Employment Rights | Unemployment Insurance Benefits For Me?

Before the economic downturn you never thought it would happen to you, but all of a sudden you're unemployed. You don't need a lawyer to tell you that unemployment not only hurts your pocketbook, but it also hurts your dignity.

I enjoy helping people get back on their feet, so I have represented many people seeking unemployment benefits. I meet all sorts of people who have recently lost their jobs. Many people I meet are good and decent. The range of people is extraordinary. I hear from people who are young, old, men, women, immigrants, educated, rich, poor . . . you get the idea. You are not alone.

To determine whether you are eligible for unemployment, the honest-to-goodness best option is to speak to a lawyer who is knowledgeable in the area of unemployment appeals employment law. If you look up the laws on your own, you risk knowing only part of the laws. Or you risk misinterpreting a law, performing poorly at the hearing, or setting in stone a lousy record for appeal. Once you have a hearing before the Administrative Law Judge, the challenge to reverse the decision increases tremendously because you almost always cannot add information to what was already said or not said.

But, still, it is wise to read the laws and there is helpful information for lay persons at the Employment Security Department website. You may be eligible for benefits if you worked at least 680 hours in your base year in a job covered by Unemployment Insurance, are fully or partially unemployed, are unemployed through no fault of your own, are able, available, and actively seeking suitable work, are legally authorized to work in the United States (if not a US Citizen), and did not earn too much money during a week / did not have other disqualifying income.

A major distinction is whether you quit or were fired. If you quit, you must prove good cause. If you were fired, the employer must prove misconduct. The RCW and WAC explain what good cause and misconduct include and exclude, although most of the law is relatively broad. So, this means the judge will have a lot of power to influence the outcome of the case. Generally, a worker is better off with a misconduct case, and the employer is generally at a greater advantage in a quit case.

As they say, "The devil is in the details." I meet many well-intentioned people who try to navigate the unemployment process on their own - after all who can afford a lawyer when you're unemployed - but  mistakes inevitably arise. Many people feel surprised that they do not receive benefits; they did not anticipate a struggle. But there almost always is one.

Document filing, oral hearings, and writing appeals all matter. Almost always, the process will take longer than you think. Consulting with an attorney knowledgeable in this area of law is well worth the investment.

So, now you have a bird's eye view of the potentially lengthy process before you receive benefits. In the meantime, keep your chin up while looking for that new job!