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.