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NP Legal Issues 3
Final Notes

Additional Law Flashcards




At will employment
terminable by employer or employee w/ or w/o notice or w/ or w/o cause
legal presumption
law presumes that you’re at will (employment status)
Exceptions to At-Will employment
If you have a contract that specifies that you have contract for specific point or time or termination for cause

Protected Classes: Can’t terminate if sick or sexual preference (a member of a protected class)
Contract types
writing, oral, or implied
Why would you have a written employment contract?
Employer obligates to employee sets up a written term
To keep team in-tact w/o letting them out of contract then you may obligate employees to employer
Keeping special employees for long term
Oral or implied contracts
By it’s conduct the employer suggests to employee that they’ll remain in employer relationship indefinitely
What should you have before you terminate someone?
Should have performance evaluations to back yourself
If a person does something they shouldn’t do then write up
Make sure that you indicate details in the job description
Objective standards help you when you need to terminate someone
Be candid in written reviews, be objective in job descriptions, job requirements, document when individuals fail
Protected class
A personal characteristic that doesn’t affect your job
I.e Age, gender, kids/none, race, religion, ethnic origin
In CA, can’t take adverse action against person in protected class
Almost everyone should be a member of protected class, which adversly reflects employment
Adverse action
Means a termination
Failure to hire
Failure to promote
Anything affecting person’s status in the workplace is adverse employment action
Illegal under CA and Fed law to do this
Federal discrimination law/department
Title VII under Civil Rights of 1964
EEOC: Equal employment Opportunity Commission
CA discrimination law/department
Government Code
DFEH: Department of Fair Employment Housing
How a discrimination/harassment claim is made
They believe their a member of protective class or whistleblower
They will sue you
They file administrate claim w/ EEOC or DFEH (must file or claim dismissed...file w/in 1 year of last incident...that’s the statute)
True reason why I was terminated was because: gender, age, marital status, etc.
Then interview
Can ask to have them investigate the agency (typically a bad choice)
Takes time and hard to get witnesses as claims processed over time
If investigate if no harassment, or find enough info to conclude unlawful conduct by employer
Can ask for immediate right to sue claim
Don’t have to wait to sue
When you knew of discrimination you have a year to last bad act to file admin complain..once right to sue letter is filed then you have a civil lawsuit in the court of your choice
CA statute attorney fees
If the attorney wins then attorney can collect statute attorney fees
In fed court, attorney won’t be able to collect these fees
Employer still has to pay all attorneys fees which can be more than the amount awarded
Rarely is unsuccessful plaintiff to pay attorney’s fees paid off of defendant (they’ll probably never pay you).
If you can do something to avoid getting sued than that’s better
Confidential Settlement
Pay employee something at the time you fire them
Not obligated to give them money, but smart thing to do is to give them money to get them to sign a confidential settlement
1542 waiver; paragraph 12 on page 3
A release does not extend to claims you don’t know about when signing release
claims only reflect release date and not into the future
if don’t know in future your situation
Rule of thumb: You pay for 1 month for every year of service (could be less)
Could be paying cobra pay
Could have them serve as 1099 contracted employer
If above 40 years of age, they get 21 days to review and 10 days to cancel
If can’t get a waiver then you’ll go to civil litigation
arbitration agreement
Arbitration is an alternative forum to get these disputes heard
for employer; you get rid of the jury
It takes away the sex appeal on the case; they’ve heard it all as arbitrators
Hard to get arbitration b/c most employers have poorly written arbitration permissions
Many arbitration agreements are written w/o taking into CA laws
employee gets all the rights under regular courts (punitive damages)
Must be both procedurally and substantively tenable hire you sign agreement, but unfair b/c you want job initially
Avoid seeking limiting punitive damages and doing things unfair
Hard to get agreement that complies with the law
Typically you sign after you sign after accepting job
Law presumes that employer and employee that there’s an unequal playing field so if employer wants to force into arbitration then playing field needs to be level
An arbitration that meets laws, the employer pays for all court fees (arbitrator and court reporter, etc). This could be very expensive. Forces employer to try to settle to stop fees
No appeal in arbitration (you’re stuck w/ decision)
Especially if you get stuck w/ punitive damages award b/c you lost
More expensive for employer (more quick and simple NOT TRUE)
To avoid litigation
Hire the right people to begin with and keep them happy
Be picky
Keep communication open
Adequate support and training to keep happy
Don’t let problems fester
Retaliatory firing claims
fire b/c you said something on someone’s behalf
deemed to be a company/org wide policy that may be implemented series of individuals
Org can be sued, but individual who implemented org policy can’t be brought before court
Conduct aimed at an individual by an individual b/c of protective class standing
Plaintiff can sue both corp entity (employer) or individual harasser or supervisor or manager of department
More personal defense
Org must decide will they indemnify the employee for claims brought or will you separate yourself as organization from employee
Sexual Harassment
Quid pro quo or hostile work environment
Quid pro quo
This for that; this in exchange for that
For sex harass; adverse employment action for turning down sexual favors
Or told get promotion for sex behaviors
Can be men vs. females, or men v m, f vs. f
typical: 2 ppl work together and have relationship and party that gets dumped brings this claim in
whether or not you consent to sex
Hostile work environment
could be person who tells dirty jokes, stares at chest, talks of sexual exploits over wknd
Creates sex harrassment
Discussion could be w/ someone else
Be careful of what you send on email or text
Employer is liable for sex harrassment?
if person is in managerial position of authority you are strictly liable whether you knew or not; even if the victim complained or not
Sexual harassment - federal vs. civil cases
In (federal) cases You need to be charged w/o reasonable doubt
In civil cases: You must have preponderance of evidence (if 50.5% of evidence puts favor over another satisfied preponderance of evidence
usually 9 of 12 jurors
if employer was harassed by managerial employee then you’re liable as an organization
put employee in state prior to injury and return to status quo; have to compensate
You may be liable to recover the equivalent for salary of job would have had for potential future lost wages if you can convince jury that you lost job and can’t get rehired or hired for future lost wages b/c of treatment of employer
Also have to pay for PTSD in work order
Seeking treatment through medical or psych treatment, employer will need to pay too
Can have to pay emotional damages
Do not demonstrate status quo, but intended to make an example of defendant so that they won’t do the same thing again
Can recover punitive damages
Related to net worth of the defendant
Can lead to big damages
Things to do to reduce sexual harassment settlement costs/damages
To cap, they should have sexual harassment training w/ managers and employees
Sex harass avoidance training
Document person has attended training
Have a protocol to report these sex harassment incident
if they don't’ report or don’t follow it stops
failing to follow an established protocol
Can’t keep claiming emotional distress after 1st incident if they didn’t employment
If you are in this situation and tells you something in confidence about another co worker about sex harass, you can’t not tell.. YOU HAVE TO TELL AS YOU WOULD BE NAMED DEFENDANT IN LAWSUIT
You have to by law tell them you have to report
CalGina discrimination
CA nondiscrimination
prohibited discrimination; when you require employers take a health screening prior to employment
You can make employment contingent of health screening, but can’t make them do it before job offer
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