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Tag: employment lawyer

Small Business Owner? You’ve Been Served: Next Steps After Receiving a Complaint. 

January 7, 2021

There are many aspects of business cannot be controlled – not least of which are pandemics and lawsuits. Being served with a lawsuit is serious, and it can also be nerve-racking. Fortunately, knowing what to do and taking a proactive approach will help you get through it. Having an existing relationship with professionals like attorneys will also lessen the burden.

Although there are endless ways to “avoid” being sued, the fact is even when you do everything correctly, some may still bring a claim against you and your business. Be prepared.

1.     Avoid Extreme Reactions of Panic and Indifference   

DO NOT ignore the lawsuit and do not panic. Panic can lead to poor decisions and ignoring the lawsuit is a poor decision in and of itself. Do not react emotionally by contacting whoever is suing your business directly. Allow your lawyer to talk to their lawyer and handle everything on the record. If you are dealing with an employment-related issue where you still have to communicate with the person who is suing your business because they are an employee, you should avoid discussing the lawsuit and make sure someone is always there to witness your interactions.

2.     Read the details of the lawsuit carefully

Pay attention to the important points: who, why, what, when. Who is suing you? What are they suing for and why do they feel the need to do so? When do you have to provide a response (Answer)? It will all be right there in the Complaint and knowing what you are faced with is the first step in getting the best outcome under the circumstances.

3.     Contact a reputable attorney (if you do not already have one, as you should)

If you do not already have a working relationship with a reputable, experienced attorney, now is the time to start one. Even if you do not need their services yet, you can establish a relationship and get valuable insight on how to proceed if you are put in this position. Companies cannot appear in court without an attorney representative so for may, this is not optional.

4.     Notify your insurance company if the suit involves an insurance claim

In some claims, insurance coverage will be implicated. This can be helpful because the insurance company might retain an attorney to defend the suit on your behalf. However, it is still important to consult an independent attorney to make sure that you are protected professionally and personally.

5.     Determine how to move forward

Once you have taken the time to see what you are up against and talk to your lawyer about the best course of action, you will need to use this information to decide how your business is going to move forward with the lawsuit that has been filed. At times, it might be best to attempt to settle the claim without further litigation. In other circumstances, filing a strong defense or counterclaim will be most effective.

Honestly, if you can start with respect and mutual understanding, you may be able to avoid most of the potential lawsuits and other complaints from employees. But, even if a suit does happen, it’s not the end of the world. Use the information in this guide to help you get ready for any legal issues facing your small business.

Stay tuned for tips on What Not To Do When Served With A Lawsuit.

Cheers.

“The Letter of the Law” – SCOTUS Uses Grammar to Grant More Protection from Age Discrimination and Retaliation

January 19, 2019

Mount Lemmon Fire District v. Guido (No. 17-587), the November 2018 Supreme Court of the United States decision, broadens protection from age discrimination to more employees of government employers.

The Age Discrimination in Employment Act (ADEA) already protects people over the age of forty (40) who work for private employers with more than twenty (20) employees, but it was not clear whether employees of a government employer with fewer than twenty (20) employees had the same protection. Violations of the ADEA can result in liability for back pay, front pay, liquidated damages and attorneys fees. There are many government employers, or “political subdivisions”, with fewer than 20 employees, so it was important to determine just what they could be liable for.

In this case, it was the Mount Lemmon Fire District, a political subdivision of Arizona. The fire District was having a bad financial year, so they fired their two oldest (and most expensive) employees, fire captains John Guido and Dennis Rankin. John and Dennis sued the Fire District, saying they were protected by the ADEA. The Fire Department tried to escape liability by saying they were not technically an “employer” under the ADEA because they had fewer than 20 employees, so were not subject to the ADEA.

The district court agreed that the Fire District was not an “employer”, but a three-judge panel of the Ninth Circuit reversed, siding with John and Dennis. The case then went to the Supreme Court where, in a unanimous (8-0) decision authored by Justice Ruth Bader Ginsburg, the Court held that the ADEA applies to all state political subdivisions, regardless of the number of employees there employed.

Let’s look at how they got there. Basically this is where grammar comes in handy. The ADEA is written as follows:

“The term ’employer’ means a person engaged in an industry affecting commerce who has twenty or more employees…The term also means (1) any agent of such a person, and (2) a State or political subdivision of a State…” 29 U. S. C. §630(b).

The Court looked at the plain language of the statute and found that the fact that the definition is broken into two sentences, and includes the words “also means” establishes two different categories:

1. persons engaged in an industry affecting commerce with 20 or more employees; and

2. states or political subdivisions.

By applying this logic, the Court was also able to determine that the second category has no numerical limitation.

As an example, if a definition said: “the term ‘airplane’ means a vehicle propelled by a minimum of two jet engines for air travel. The term also means a vehicle that uses propeller power to achieve air travel,” we would understand that the two sentences, and the words “also means” indicate that the two things listed as examples of airplanes are entirely separate, and should be regarded as such. We would further understand that just because category one (jet planes) requires a minimum of two jet engines, category two (propeller planes) states no minimum number of propellers, and could very well have only one and still be considered an airplane under the definition.

By using grammar, the Supreme Court determined that the Fire District, and all other States and political subdivisions, are subject the provisions of the ADEA, regardless of their number of full time employees.

The lessons to be learned here are not only are all government employers barred from discriminating against employees based on their age, but also the way statutes are written (or “the letter of the law”) can have real impact on the outcome of a case.

Storm Surges and Flash Flooding: A Few Employment Law Issues During Natural Disasters

September 17, 2018

You are an employer with a a goal set of each hour, day, week, month, quarter and year, maybe 5, 10, 50 years. But natural disasters such as hurricanes do not respect your goals; they are unpredictable and disruptive even to the most efficient workplaces. To minimize the havoc wreaked on your business by the strong storm, a well drafted human resource policy on issues relevant to bad weather is critical. This article addresses two key considerations to remain compliant with the law and to get back to business as soon as possible.

Wage and Hour

A natural disaster often forces a halt in business operations. However, the Federal Labor Standards Act (FLSA) does not relax or waive its rules during such a period. It requires employers to pay salaried exempt employees during a such a business closure if the employee worked at all during the relevant work week, no matter how briefly. To alleviate the cost to employers, the FLSA permits the employer to require employees to use their accrued and unused paid time off (PTO) during the shutdown. Non-exempt hourly employees on the other hand, may be paid for only the hours actually worked during a business shut down. The FLSA also expects that accurate records of employees’ time worked be persevered in a hurricane-proof format and continue to be kept as employees work through the event.

Employers should prepare clear policies governing this issue well in advance of having to apply its rules

Occupational Safety and Health

The Occupational Safety and Health Act requires employers to provide a safe workplace for their employees. Thus, employers must carefully assess the work space during and after natural disasters to ensure that buildings are structurally sound, hazardous materials are not exposed, amenities such a washrooms, air heating and cooling, first aid are fully functional, electrical wires are not damaged or exposed, mosquitoes and other pathogens are under control, among several other considerations.

OSHA permits employees to refuse dangerous work and to report dangerous working conditions. Dangerous conditions must be reported within thirty (30) days of its discovery and can be made via the OSHA website or over the telephone. Likewise an employee refusing dangerous work must do so promptly, and because OSHA does not recommend abandoning the worksite, the employee must work with management to address her concerns. 

Once again, clear policies on the issue drafted and provided to employees and managers in advance of a natural disaster is preferred.