Monday, March 21, 2011

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.

Monday, March 14, 2011

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.

Tuesday, March 8, 2011

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.