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terminable by employer or employee w/ or w/o notice or w/ or w/o cause |
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law presumes that you’re at will (employment status) |
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Exceptions to At-Will employment |
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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) |
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writing, oral, or implied |
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Why would you have a written employment contract? |
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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 |
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Oral or implied contracts |
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By it’s conduct the employer suggests to employee that they’ll remain in employer relationship indefinitely |
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What should you have before you terminate someone? |
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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 |
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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 |
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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 |
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Federal discrimination law/department |
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Title VII under Civil Rights of 1964 EEOC: Equal employment Opportunity Commission |
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CA discrimination law/department |
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Government Code DFEH: Department of Fair Employment Housing |
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How a discrimination/harassment claim is made |
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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 |
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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 |
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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 |
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Arbitration is an alternative forum to get these disputes heard Advantage for employer; you get rid of the jury It takes away the sex appeal on the case; they’ve heard it all as arbitrators Disadvantages 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 example...at 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) |
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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 |
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Retaliatory firing claims |
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fire b/c you said something on someone’s behalf |
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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 |
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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 |
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Quid pro quo or hostile work environment |
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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 |
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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 |
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Employer is liable for sex harrassment? |
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if person is in managerial position of authority you are strictly liable whether you knew or not; even if the victim complained or not |
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Sexual harassment - federal vs. civil cases |
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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 |
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if employer was harassed by managerial employee then you’re liable as an organization |
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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 |
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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 |
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Things to do to reduce sexual harassment settlement costs/damages |
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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 |
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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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