Monday, February 28, 2011

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.

Sunday, February 13, 2011

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.

Friday, February 4, 2011

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.