Never have there been so many tools for Imperial Valley employment lawyers to help people recently fired to win damages for discrimination, to seek a better severance package, including not only a longer period of pay benefits, but also other items, most important of which can be a longer period of health insurance benefits following the termination, or even to save the employee’s job.

If you’ve been fired from your job as a result of discrimination or retaliation, been harassed or the victim of a hostile work environment, or paid less than a person of the opposite sex for the same work for no other valid reason, visit our website at http://www.CaliforniaAttorneysLawyers.com and call us at any of the numbers easily found on our website.

In Imperial Valley and throughout California where private employers and government offices have laid off people in the hundreds and thousands, sometimes on a weekly basis there is substantial fear among those who have recently been terminated and those who are in fear that they could be next to be let go. In areas such as the Imperial Valley area where unemployment and foreclosures are at their highest in the state, many employees who have been discriminated against or fired in retaliation for complaints of harassment and who previously feared making any complaint, now feel they have nothing to lose.

Some employees are filing class action lawsuits based on everything from age and sex discrimination to discrimination against veterans. Individual claims are being made for overtime pay that the employees never received and retaliation for whistle blowing or reporting harassment.

One of the best tools for Imperial Valley employment lawyers is often the employee’s company manual and other memos of the company which often lay out glowing descriptions of how fair the company will be in their employment practices. Such manuals often describe all of the types of actions which the company claims they will not tolerate including the various forms of harassment and how the company will never take a retaliatory action against anyone blowing the whistle on harassment at the company.

Such manuals provide a powerful tool to the employee and the employment lawyer to show the company exactly how they violated not only the law, but also the company’s own employment guidelines. Faced with such violations of the principles the company itself laid down and promised to their employees, it is difficult for such companies to argue that they didn’t realize how they were supposed to respond to an employee’s reports of harassment or that they didn’t know they couldn’t fire someone for making such reports.

Employees must keep in mind that under California law, complaints alleging discrimination or retaliation must be filed with the Division of Labor Standards Enforcement in California within six months of the alleged discriminatory or retaliatory action by an employer, except in certain circumstances.

Some of the laws enforced by the Labor Commissioner in the State of California which prohibit discrimination and retaliation include discrimination or retaliation for threatening to file a complaint with the Labor Commissioner, for taking time off to serve as a juror, be a witness in court or to attend judicial proceedings related to being a victim of a crime or related to a victim, for discharging victims of domestic violence, for taking time off to seek medical or psychological treatment related to domestic violence or a sexual assault, for taking time off to go to a child’s school at the request of a teacher, for disclosing his or her wages, for engaging in political activity, for being a whistle blower (not the real whistles), for being paid less than employees of a different sex for the same work unless based on a bona fide factor other than sex, or for complaining about safety or health conditions.

For Imperial Valley Employment Lawyers such as myself who are also Women’s Rights Lawyers, when President Obama signed the Lilly Ledbetter Fair Pay Act of 2009 in late January, he remedied a great injustice and provided employment and women’s rights attorneys with yet another tool in our arsenal to fight for employee’s and women’s rights.

Now women in California and the rest of the nation have a law that gives them the ability to redress the wrong suffered upon them by society in allowing men to receive more money for the same work from an employer and limiting the rights of women to bring a claim for pay discrimination.

In the past, women were required to file suit within 180 days after first being paid unfairly, even if the discrimination of being paid less than male workers in the same jobs continued. And if a woman failed to discover that male workers were being paid more for the same work, a woman still could not hold her employer accountable if she didn’t learn of the unfairness and take action within 180 days of first being paid the lesser rate.

Under the Fair Pay Act of 2009 signed into law by President Obama, the statute of limitations of 180 days starts with each discriminatory paycheck, rather than when the employer starts to discriminate. So long as a woman in CA files her claim within 180 days of receiving any discriminatory paycheck, not just the first one, she is considered timely in bringing her claim.

An important aspect of the Act is that the effective date of the Act is retroactively set at May 28, 2007, which will allow it to apply to all compensation discrimination claims that have been filed on or after that date.

Women can sue for back pay awards for up to two years before she files her employment discrimination claim under Title VII of the Civil Rights Act of 1964. The Fair Pay Act of 2009 does not change the two-year back pay limit.

Under the Act, an unlawful practice occurs when a discriminatory compensation decision or other practice is adopted, when a person becomes subject to the decision or practice, or when a person is affected by the decision or practice, including each time wages, benefits or other compensation is paid.

California also has it’s own version of the Federal WARN Act which in certain circumstances requires 60 days warning before laying off workers. Under the 2003 California version of the Act, the requirement of 60 days warning applies to establishments with 75 or more employees who have been employed for at least 6 of the previous 12 months, who layoff or relocated 50 or more employees within a 30-day period. There are also various exceptions to the rule.

For the elderly employee laid off, an important ruling by the U.S. Supreme Court has given added protection to older workers. Elderly persons who file employment discrimination lawsuits no longer need to prove that an employer acted intentionally. It is enough that the employee can prove that the layoffs had a disparate effect on the elderly workers.

Layoffs of caregivers providing care to sick family members may also violate federal law.

And all of these tools are still in addition to the tools Imperial Valley employment lawyers have against employers who practice discrimination based on sex, religion, race, age, or sexual orientation, or who subject their workers to a workplace that constitutes a hostile environment.

Visit our website at http://www.CaliforniaAttorneysLawyers.com and call us if you have been discriminated against or are the victim of retaliation by an employer in Imperial Valley or if you have been receiving less pay than a person of the opposite sex for the same work by your employer for no other valid reason.

It is thus imperative that an employee being laid off who is provided with a separation agreement and release of all claims against his employer consult with an employment attorney to determine if there weren’t violations of any of these laws and others that can assist the employee and his or her attorney to negotiate a larger severance package.

If you have recently been fired, are in fear of losing your job or if you have been presented with a separation agreement or severance package and have been discriminated against, harassed or are the victim of retaliation in Imperial Valley by your employer, we invite you to call our office.

Never have there been so many tools for Southern California employment lawyers to help people recently fired to win damages for discrimination, to seek a better severance package, including not only a longer period of pay benefits, but also other items, most important of which can be a longer period of health insurance benefits following the termination, or even to save the employee’s job.

If you’ve been fired from your job as a result of discrimination or retaliation, been harassed or the victim of a hostile work environment, or paid less than a person of the opposite sex for the same work for no other valid reason, visit our website at http://www.CaliforniaAttorneysLawyers.com and call us at any of the numbers easily found on our website.

In Southern California where private employers and government offices have laid off people by thousands, sometimes on a weekly basis there is substantial fear among those who have recently been terminated and those who are in fear that they could be next to be let go. In the areas of Southern California where unemployment and foreclosures are at their highest in the state, many employees who have been discriminated against or fired in retaliation for complaints of harassment and who previously feared making any complaint, now feel they have nothing to lose.

Some employees are filing class action lawsuits based on everything from age and sex discrimination to discrimination against veterans. Individual claims are being made for overtime pay that the employees never received and retaliation for whistle blowing or reporting harassment.

One of the best tools for Southern California employment lawyers is often the employee’s company manual and other memos of the company which often lay out glowing descriptions of how fair the company will be in their employment practices. Such manuals often describe all of the types of actions which the company claims they will not tolerate including the various forms of harassment and how the company will never take a retaliatory action against anyone blowing the whistle on harassment at the company.

Such manuals provide a powerful tool to the employee and the employment lawyer to show the company exactly how they violated not only the law, but also the company’s own employment guidelines. Faced with such violations of the principles the company itself laid down and promised to their employees, it is difficult for such companies to argue that they didn’t realize how they were supposed to respond to an employee’s reports of harassment or that they didn’t know they couldn’t fire someone for making such reports.

Employees must keep in mind that under California law, complaints alleging discrimination or retaliation must be filed with the Division of Labor Standards Enforcement in California within six months of the alleged discriminatory or retaliatory action by an employer, except in certain circumstances.

Some of the laws enforced by the Labor Commissioner in the State of California which prohibit discrimination and retaliation include discrimination or retaliation for threatening to file a complaint with the Labor Commissioner, for taking time off to serve as a juror, be a witness in court or to attend judicial proceedings related to being a victim of a crime or related to a victim, for discharging victims of domestic violence, for taking time off to seek medical or psychological treatment related to domestic violence or a sexual assault, for taking time off to go to a child’s school at the request of a teacher, for disclosing his or her wages, for engaging in political activity, for being a whistle blower (not the real whistles), for being paid less than employees of a different sex for the same work unless based on a bona fide factor other than sex, or for complaining about safety or health conditions.

For Southern California Employment Lawyers such as myself who are also Women’s Rights Lawyers, when President Obama signed the Lilly Ledbetter Fair Pay Act of 2009 in late January, he remedied a great injustice and provided employment and women’s rights attorneys with yet another tool in our arsenal to fight for employee’s and women’s rights.

Now women in Southern California and the rest of the nation have a law that gives them the ability to redress the wrong suffered upon them by society in allowing men to receive more money for the same work from an employer and limiting the rights of women to bring a claim for pay discrimination.

In the past, women were required to file suit within 180 days after first being paid unfairly, even if the discrimination of being paid less than male workers in the same jobs continued. And if a woman failed to discover that male workers were being paid more for the same work, a woman still could not hold her employer accountable if she didn’t learn of the unfairness and take action within 180 days of first being paid the lesser rate.

Under the Fair Pay Act of 2009 signed into law by President Obama, the statute of limitations of 180 days starts with each discriminatory paycheck, rather than when the employer starts to discriminate. So long as a woman in CA files her claim within 180 days of receiving any discriminatory paycheck, not just the first one, she is considered timely in bringing her claim.

An important aspect of the Act is that the effective date of the Act is retroactively set at May 28, 2007, which will allow it to apply to all compensation discrimination claims that have been filed on or after that date.

Women can sue for back pay awards for up to two years before she files her employment discrimination claim under Title VII of the Civil Rights Act of 1964. The Fair Pay Act of 2009 does not change the two-year back pay limit.

Under the Act, an unlawful practice occurs when a discriminatory compensation decision or other practice is adopted, when a person becomes subject to the decision or practice, or when a person is affected by the decision or practice, including each time wages, benefits or other compensation is paid.

California also has it’s own version of the Federal WARN Act which in certain circumstances requires 60 days warning before laying off workers. Under the 2003 California version of the Act, the requirement of 60 days warning applies to establishments with 75 or more employees who have been employed for at least 6 of the previous 12 months, who layoff or relocated 50 or more employees within a 30-day period. There are also various exceptions to the rule.

For the elderly employee laid off, an important ruling by the U.S. Supreme Court has given added protection to older workers. Elderly persons who file employment discrimination lawsuits no longer need to prove that an employer acted intentionally. It is enough that the employee can prove that the layoffs had a disparate effect on the elderly workers.

Layoffs of caregivers providing care to sick family members may also violate federal law.

And all of these tools are still in addition to the tools Southern California employment lawyers have against employers who practice discrimination based on sex, religion, race, age, or sexual orientation, or who subject their workers to a workplace that constitutes a hostile environment.

Visit our website at http://www.CaliforniaAttorneysLawyers.com and call us if you have been discriminated against or are the victim of retaliation by an employer in Southern California or if you have been receiving less pay than a person of the opposite sex for the same work by your employer for no other valid reason.

It is thus imperative that an employee being laid off who is provided with a separation agreement and release of all claims against his employer consult with an employment attorney to determine if there weren’t violations of any of these laws and others that can assist the employee and his or her attorney to negotiate a larger severance package.

If you have recently been fired, are in fear of losing your job or if you have been presented with a separation agreement or severance package and have been discriminated against, harassed or are the victim of retaliation in Southern California by your employer, we invite you to call our office.

HAWAII EMPLOYMENT LAW BASICS: PREGNANCY DISCRIMINATION LAW UNDER FEDERAL AND HAWAII LAW

 INTRODUCTION:

Along with other types of claims, there has been a significant increase in pregnancy discrimination complaints nationwide.  The increase in the number of complaints has outpaced the increase in percentage of women in the workforce during the same period.  

Accordingly, it is clear that employers need to become more aware of their obligations towards pregnant employees, especially under Hawaii state law, which covers all employers, and permits not only individual liability for violations of the law, but also unlimited punitive and compensatory damages to be awarded a plaintiff.

 FEDERAL LAW AND HAWAII LAW ARE SIGNIFICANTLY DIFFERENT WITH RESPECT TO PREGNANCY DISCRIMINATION:

Title VII of the Civil Rights Act of 1964 (“Title VII”) makes it unlawful for an employer to limit, segregate or classify employees or applicants for employment in any manner which deprives or tends to deprive an individual of employment opportunities because of the individual’s race, color religion, sex or national origin.  Generally, the law covers all employers engaged in an industry affecting commerce with 15 or more employees.

Title VII was amended by the Pregnancy Discrimination Act (“PDA”) to prohibit all forms of discrimination in employment based on pregnancy, childbirth, or related medical conditions.  Under PDA, pregnant employees must not be treated less favorably than a non-pregnant employee under similar circumstances.

Under the PDA, pregnant employees must not be treated less favorably than a non-pregnant employee under similar circumstances.  Thus, an employer that refuses to hire or promote a female because of pregnancy has violated PDA.  Also, an employer that forces a pregnant employee to take a leave of absence despite being able to perform her job has violated PDA.  Conversely, it is unlawful to force a pregnant employee to continue performing work she is incapable of doing due to her pregnant condition from which other similarly situated disabled employees are excused.

If the employee litigates her federal PDA claim the available remedies include the Court: Issuing an injunction prohibiting the employer from committing future violations of the law; granting equitable relief such as reinstatement or promotion; awarding back pay limited for a period beginning two years before the date the charge of discrimination was filed, less any interim earnings; awarding front pay, and; reasonable attorneys’ fees.

In addition, the total amount of compensatory and punitive damages are limited depending on the size of the employer.  Specifically, the caps are set by statute as follows:

Number of Employees            Cap

015-100 employees                $ 050,000

101-200 employees                $ 100,000

201-500 employees                $ 200,000

500 plus employees                $ 300,000

Under the Hawaii Employment Practices Act, HRS Chapter 378, covered employers are prohibited from discriminating in public and private employment on the basis of “sex.”  Like PDA, Hawaii law prohibits discriminating against women in employment because of “pregnancy.” 

There are significant differences between PDA and Hawaii law.  First, the Hawaii statute covers any employer with “one or more” employees, thus affecting many small business owners that perhaps lack resources to fully educate themselves on the law or implement risk reduction policies and procedures. 

Second, while it is clear under federal law that individual employees cannot be held individually liable for adverse decisions deemed unlawful under the law, there is virtually uniform authority amongst state court judges that no such protection is afforded under state law.  Thus, supervisors along with the employer are commonly named as individuals in lawsuits filed by plaintiffs in Hawaii state court pursuant to HRS Chapter 378.

Third, while federal law simply requires the employer to treat a pregnant employee as it would similarly situated non-pregnant employees under Hawaii law employers are required to do much more.  Specifically, Hawaii law requires by regulatory mandate that employers “make every reasonable accommodation to the needs of the female affected by disability due to and resulting from pregnancy, childbirth, or related medical conditions.”

Regardless of the policies applicable to non-pregnant disabled employees, female employees who are disabled due to pregnancy, childbirth, or related medical conditions must be permitted to take a leave of absence, paid or unpaid, for a “reasonable period of time.”  A “reasonable period of time” is that time determined by the employee’s health care provider.

Hawaii law requires the reinstatement of an employee returning from pregnancy leave to her original job or to a position of comparable pay, without loss of accumulated service credits and privileges.  Prior to the employee’s return to work the employer may request a physician’s certificate approving her return to work.

Finally, and in many cases most significantly, under Hawaii law a court may award unlimited punitive and compensatory damages in cases brought under HRS Chapter 378.   

 CONCLUSION:

            PDA and the Hawaii Employment Practices Act are significantly different in scope and breadth.   Under federal law employers must remember to treat pregnant employees the same as similarly situated employees.  However, under Hawaii law employers are required to afford pregnant special protections regardless of how similarly situated employees are treated. Employers should seek counsel if they have questions regarding the law.

Roman Amaguin, Esq.; romanamaguin@yahoo.com; www.amaguinlaw.com

Roman Amaguin, Esq. is a Hawaii lawyer specializing in employment law, labor law, and civil litigation.

This article addresses some of the key issues regarding self-employment tax. A careful reading of this material could make a big difference in how you think about self-employment tax.

Who must pay self-employment tax and why? Well, if you’re self-employed, you will be responsible for self-employment tax. How do you determine your liability? For the purpose of determining self-employment tax, you are self-employed if you are a sole proprietor, an independent contractor, a member of a partnership, or are otherwise in business for yourself. If you are a self-employed individual, you will have a Schedule C to attach to your Form 1040, and self-employment tax is computed on Form 1040, Schedule SE. Individuals must pay self-employment tax is they have net earnings of $400 or more and there are several sources of net earnings that are used when figuring your self-employment tax liability. In most cases, net earnings include net profit from a farm or nonfarm business; if you operate more than one business, your net earnings from self-employment are the combined net earnings from all your businesses. The upside to operating more than one business: If you have a loss in one business, it reduces the income from another. self-employment tax is the self-employed individual’s contribution to social security and Medicare taxes; the old-age taxes of employment. The only difference between the employee and the self-employed is the employee’s social security and Medicare taxes are paid half by the employee and half by the employer, when an individual is self-employed; he/she is responsible for the entire amount.

There are alternative methods that can be used for figuring liability of self-employment tax and they are: The Farm Optional Method and the NonFarm Optional Method. These methods may qualify an individual to claim a larger Earned Income Credit or Child Tax Credit; they may also, however, increase your self-employment tax liability.

The maximum amount of earnings subject to self-employment tax is currently $87,000.00. Now, when figuring your adjusted gross income on Form 1040, you may deduct up to one-half of your self-employment tax liability and if you are member of the ministry or clergy you may request an exemption from self-employment tax from the IRS.

It’s really a good idea to probe a little deeper into the subject of self-employment tax. What you learn may give you the confidence you need to venture into new areas.

When must self-employment taxes be paid? Generally, the self-employment taxes aren’t due until the end of the year, when your personal tax return is filed. Why is it this way? The self-employment tax isn’t due until the end of the year simply because of the fact that many self-employed business owners don’t file the net profit or net loss figures on their self-employment earnings, until the year’s end. If there is a net loss, the self-employed individual receives a credit of self-employment tax due, in the amount of one-half of the amount due.

The self-employment tax is the self-employed individual’s equivalent to the social security and Medicare tax deducted from employee’s paycheck each week. The wage earner’s taxes are configured by their employer and are deducted on a weekly basis. The self-employed individual isn’t required to make weekly payments of self-employment tax, but they are held liable for the full 15.3 rate, that is split between the employee and the employer in wage earning situations. In general, however, if you expect to owe taxes in excess of $1000 for the year, you are required to pay estimated taxes each quarter.

In summary, if you are self-employed, have net earnings of $400 or more, and file a tax return, you will be subject to self-employment tax. To learn more about individual liabilities, exemptions, and alternative tax methods, please visit the online site for IRS Forms and Publications at www.IRS.gov . Topic 554, Publication 517 and 533 will provide more detailed and situation specific information.

Of course, it’s impossible to put everything about self-employment tax into just one article. But you can’t deny that you’ve just added to your understanding about self-employment tax, and that’s time well spent.

“Dreams are the gateway to success ” – If you think you can you surely can make it , though its easy to dream but tough to mark one’s presence. Self employment is chosen by people who want to mark their individual presence in the world of business. Desire to rule the world is a trait commonly found in self employed persons. Your dedication, hard work and sincerity towards your work without adequate capital resource are futile.However, for people who are self employed and don’t have access to that extra sum of money that can make the task easier.Hoe to get hand onto that extra sum of money which can be used for investing in a new venture or to buy that latest technology that has just hit the market.Well, the answer to this question can be easily traced with the introduction of loans for the self employed in the loan market.

With the entry of loans forself employed it has become easier for self employed people to get an easy financial help. With the increasing number of people who prefer to work for themselves, loans for self employed have now become affordable and widely available. Loans for self employed are tailored to meet the financial needs of self employed people. They may need funds to expand or to start a new business. Self employed people are identified as people who operate their own business as a sole owner or as a partner or a profession. Independent consultants and contractors are also classified as self employed. Loans for self employed can be secured or unsecured one. Secured self employed loans are secured against the collateral of the borrower such as a car or a house. Unsecured self employed loans are not secured by any collateral,best suited for those who can not afford to offer collateral.Loan for self employed becomes one of the most popular finance options for the self employed people because it moulds repayments according to the income of the self employed. How much is to be paid and when it is to be paid will be decided by the borrower himself. The feature of flexibility comes in three forms- underpayment, overpayment, and payment holiday.

Another feature of loans for self employed is that they allow the borrowers themselves to certify their income. In the absence of any accounts or not well maintained accounts, self employed borrowers are refused loans by most loan providers. The self employed people are normally seen to not disclose their actual income as this will require them to pay higher tax. However, when they approach loan providers for loans, they do not want the income revealed to be considered. This will qualify them for a lower value of loan. However, the loan providers who know how the self employed people function, create specific finance options for them. They allow the self employed people to themselves certify their income.
Therefore, self employed people need not feel that they do not have sufficient finance opportunities. Proper search can lead them to loan providers who are ready to mould the features of their loans in order to serve the self employed people.

RACIAL EQUALITY VICTIMIZATION IN EMPLOYMENT

Race relations victimization is different than color discrimination or ethnic discrimination or racial harassment or racial segregation -race victimization or color victimization need not include discriminatory practices to be illegal ~it need only be about race equality.

It is possible for one in race relations law, even if not subjected to race discrimination, to suffer unlawful race relations victimization, entitling to legal remedies.

Race relations victimization is, on its own, contrary to nondiscrimination policy -in race equality legislation under the Race Relations Act, and in employment law, unlawful.

In race relations laws also workplace victimization can be without race discrimination or racial abuse; and, employment tribunal compensation for race relations victimization, if it is with racial discrimination or ethnic relations abuse -be it racial segregation or color discrimination or ethnic prejudice or any other kind of racist abuse, for ‘injury to feelings’ is limitless -racial victimization exempts on its own from a year’s service requirement to sue, if terminated, also for reinstatement.

Only indirectly is race relations victimization to do with one’s color, race, ethnicity, religion, nationality, citizenship; it is not directly about racism in ethnic relations, racial segregation, race equality, as such -it is about detriment over concern with those at the workplace caused one by way of retaliation, and because it is about race equality it is called race relations victimization.

Race relations victimization is, in racial equality legislation -under the Race Relations Act, basically, this:-

If one complains…

…that one has been, or is being, treated less favorably on racial grounds by one’s employer -to the employer or to a tribunal or to the race relations board or seeks advice from the advisory arbitration and conciliation service (or friend or colleague -or anyone)…

…or if one agrees to, e.g., give evidence or support anyone, or lawfully do anything, in relation to race discrimination to the detriment or possible detriment of the employer…

…or if one does not do any of those things but is suspected by the employer that has done or would or could or might do so…

…and because of that race relations related act or suspicion if one is subjected to a detriment by the employer or for or on behalf of the employer, in respect of one’s employment…

…that is unlawful race relations victimization of one.

In race relations victimization it does not matter, e.g., if one’s complaint was of racial abuse in personal service (e.g. house help) exempted in nondiscrimination policy, or of race discrimination over a genuine occupational qualification (e.g. straight haired model) exempt under the Race Relations Act, or, if one was wrong and it was not race discrimination -if it is a complaint of race equality in good faith any detriment because of it caused one (even if not discriminatory practices detriment) is illegal race relations victimization.

Also, in race relations law, it does not matter if the employer did not know of the race relations victimization -if the racial victimization is by someone to do with that employment (including a colleague -unless the employer can prove that all reasonable steps were taken to ensure compliance with racial equality laws, including e.g. ethnic victimization) there is vicarious race equality liability for race relations victimization.

The motive or intention is irrelevant in race relations victimization -so is being unconscious of subjecting to racial victimization -if less favourable treatment (even if it is not itself race discrimination) is shown and it relates to racial equality, that is race relations victimization and there is racial victimization liability: Swiggs & Others -v- Nagarajan, 1999, HL.

Race relations case law suggest that for a claim to succeed under the Race Relations Act the employee’s complaint to the employer about racial equality which resulted in race relations victimization, must have been made before the race relations victimization took place if victimization was dismissal -before the employment contract ended: Post Office -v- Adekeye, and, Negorajam -v- Agnew 1974 EAT.

The employer needs the employee’s consent to put it right if it is not in an internal appeal, and also in race relations this is so, if the race relations victimization is termination -because that ends the employment contract (which, if not specifically made, the law deems to have existed): James -v- Waltham Holy Cross UDC, 1973, NIRC ~but an employee, before suing under the race relations law for racial victimization, must protest with written cause the race relations victimization to the employer for response in 28 days, considering arbitration for conciliation or settling.

It is not a defense in race relations victimization for the employer, if later information showed the employer to have erred, that at the time of the race relations victimization information was not available to suggest that the detriment would be racial victimization -the employer must put right that error ~this (Williamson -v- Alcan UK Ltd., 1978, EAT) is regarded a principle of employment law, and if does not, that too, in race equality law, is unlawful race relations victimization.

If one suffers race relations victimization, one may serve on the employer a racial discrimination questionnaire (within three months of when one first knew of the race relations victimization -or if one has lodged one’s racial victimization claim with an employment tribunal [for which there is a time limit of three months] within 21 days of lodging it), using the employer’s answers to why subjected to alleged racial victimization as evidence of race relations victimization -failure to answer or vague or ambiguous replies entitle drawing inference in race relations victimization claims.

In racial equality case law there appears to be a judicial expectation that a race relations complaint should specify or include the allegation that it relates to racial discrimination -British Airways Engine Overhaul Ltd. -v- Francis 1981 dismissed the case because the race relations complainant had not alleged that the complaint related to race discrimination (that in later protected acts [whistle-blowing, asserting a statutory right] reasonable clarity suffices may make same applicable to race relations victimization).

In race relations victimization the onus of proof is normally on the employee alleging racial victimization, but this can move to the employer because the employer must state a reason for the detriment alleged to be race relations victimization, and employment tribunals have to have regard to the reason stated by the employer -this applies also in race relations victimization cases ~it is important to show the employer’s reason not to be, or be capable of not being, the reason or main reason for a detriment alleged as racial victimization.

If it is not shown to be a race relations matter, even if the detriment is proven, it is not racial victimization -Baker -v- Cornwall County Council 1990, and, York Truck Equipment Ltd. 1990 EAT) held the detriment not related to racial equality but disciplinary and so, not race relations victimization ~in racial victimization one must show not only that there had been a race equality issue followed by a detriment but also that the detriment would not have arisen but for a race equality issue for it to be race relations victimization.

In race relations cases the basic consideration in race relations discrimination applies also to race relations victimization and is whether the alleged racial discrimination or race relations victimization arouse from a racial equality matter -the ‘but for’ rule: would the detriment have still been suffered, or would it not have been but for racial inequality, or in the case of race relations victimization a race equality enquiry or complaint or act of the employee -or the employer’s related suspicion? If the detriment alleged to be victimization would not otherwise have been suffered, it is unlawful race relations victimization, entitling to a remedy.

Laws change, these are brief guidelines.

What happens when you have a rogue or even out of control employee that uses an office computer to send or even post threats of great bodily harm or uses an office computer to generate other highly offensive communications? Can an employer who ends up being sued for such conduct assert a defense of immunity under the provisions of the Communications Decency Act of 1996 (CDA), 47 U.S.C. 230. This particular federal law defense of immunity actually does preempt inconsistent state law that might otherwise impose liability in certain circumstances. The Act immunizes “provider[s]… of an interactive computer service” (the employer) where “another information content provider” (the employee) has initiated the offending activity.

While the facts considered recently by a California Court of Appeal in Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790 are unquestionably extreme and will not likely be encountered in garden-variety employment situations, the CDA immunity defense could well apply in more benign or commonplace circumstances as a result of the court’s ruling in this particular case.

In the Delfino case, the court considered a situation in which unbeknownst to his employer, a very angry and upset employee sends anonymous emails to various adversaries. He also created posts on Internet bulletin boards, threatening great bodily harm and death to these various individuals.

In making this illicit communications, the employee used the computer systems of his employer. The victims of these horrible threats and postings ended up contacting the FBI. The FBI in turn traced the emails and postings to the employee’s office computer. This was accomplished by by tracking the emails and postings back through the originating IP address.

The employee admitted that he engaged in the in the conduct of which he was accused. In the end, criminal charges are filed against him.

The employer terminated the employee. The victims of the employee’s threats sued the employee and the employer for intentional and negligent infliction of emotional distress, and negligent supervision or retention. The plaintiffs in the lawsuit claimed the employer was aware that the employee was using its computer system to threaten them. The further argued that the employee took no action to prevent the co-defendant employee from continuing to make threats over the Internet.

The ultimate question before the court in the case was: Can the employer be liable under these circumstances?

Some may consider this particular scenario far fetched. The case was presented as one of first impression in Delfino v. Agilent. The California appellate court determined that an employer could in fact assert the immunity defense under the Communications Decency Act of 1996 (CDA), 47 U.S.C. 230.

In asking the court to dismiss the plaintiffs’ case, the employer filed a motion for summary judgment, in which it asserted that the employer was a “provider… of an interactive computer service”, and therefore entitled to complete immunity under the CDA. Section 230(c)(1) states that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” The statute also preempts inconsistent state law that would impose liability, saying: “Nothing in this section shall be construed to prevent any State from enforcing any State law that is consistent with this section. No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” Section 230(e)(3), italics added.

The primary goal of the CDA has been to control the exposure of minors to indecent material over the Internet. Nonetheless, one of its other important purposes is “to encourage [Internet] service providers to self-regulate the dissemination of offensive materials over their services.” This was determined in the case of Zeran v. America Online, Inc. (4th Cir. 1997) 129 F.3d 327, 331, cert. den. (1998) 524 U.S. 937.

The CDA also been enforced in a manner so as to avoid the chilling effect on Internet free speech that would occur if tort liability ended up being imposed on companies that do not create potentially harmful messages but are simply intermediaries for their delivery. Id. at 330-331.

Accordingly, Section 230(c)(2) immunizes from liability an interactive computer service provider or user who makes good faith efforts to restrict access to material deemed objectionable. However, the provider must make a good faith effort to restrict access to material that is deemed objectionable.

Drawing on prior CDA cases that actually were beyond the employment context, the Delfino court ruled that there are three essential elements that a defendant must establish in order to claim section 230 immunity. These three elements are determined by the court are:

(a) the defendant is a provider or user of an interactive computer service;

(b) the cause of action treats the defendant as a publisher or speaker of information; and

(c) the information at issue is provided by another information content provider. Gentry v. eBay, Inc. (2002) 99 Cal.App.4th 816, 830.

In considering the first element (whether the employer was a provider or user of an interactive computer service), the court ruled the question a matter of first impression. In its judgment, the court specifically held: “We are aware of no case that has held that a corporate employer is a provider of interactive computer services under circumstances such as those presented here. But several commentators have opined that an employer that provides its employees with Internet access through the company’s internal computer system is among the class of parties potentially immune under the CDA.” Delfino, 145 Cal.App.4th at 805.

Prior courts had interpreted the term “interactive computer service” broadly in their own decisions and rulings. (For example, in Batzel v. Smith (9th Cir. 2003) 333 F.3d 1018, 1030, fn. 15, cert. den. (2004) 541 U.S. 1085), the court held that the employer was a “provider of interactive computer services” under the CDA. Id. At 806.

Considering the second element of the test, (whether the cause of action treated the defendant as a publisher or speaker of information), the court found that plaintiffs, in alleging that the employer was liable for the employee’s cyber threats, sought to treat the employer “as a publisher or speaker” of those messages. (sec. 230(c)(1).) Id.

On the last element of the test, (whether the information at issue was provided by another information content provider), there was no dispute that the employee was the party who had authored the offensive e-mails and postings. Moreover, there was no evidence that the employer played any role at all in “the creation or development” of these threatening and offensive messages and postings. Id. at 807-08.

In the end, the court concluded that the employer satisfied all three of the elements necessary to establish immunity under the CDA. Therefore, the court of appeal did affirm the trial court’s grant of summary judgment in favor of the employer. The court of appeals agreed that the grant of immunity under the CDA was proper pursuant to the terms and conditions of that law.

In its decision, the court also noted that, even if plaintiffs’ claims had not been barred under section 230(c)(1), granting summary judgment to the employer was nonetheless proper. The court reached this conclusion because plaintiffs failed to establish a prima facie case on their claims against the employer. Id. at 808. In this regard, the court specifically held that there was no indication that the employer ratified in any manner the employee’s conduct, and that the employer could not be liable under theory of respondeat superior. Id. at 810-12. In addition, there was not even any evidence that the employer was even aware of the employee’s conduct. Id. at 815.

In its holding and order, the court affirmed the long established principle that an employer will not be held vicariously liable for an employee’s malicious or tortious conduct in a situation in which the employee substantially deviates from his employment duties for personal purposes. The court additionally offered what can be considered an important teaching point on the theory and principle of ratification under California law.

The court noted that imposing derivative liability on the employer for an employees actions need not be founded on respondeat superior. Such liability can also be based upon the doctrine of ratification as discussed in Murillo v. Rite Stuff Foods, Inc. (1998) 65 Cal. App.4th 833, 852). In that case, the court observed that an employee’s actions may be ratified after the fact by the employer’s voluntary election to adopt the employee’s conduct. This is done, in essence, by treating the conduct as that of the employer’s own. Id. at 810.

In considering what evidence can support the ratification theory, the Delfino court cited the California Civil Code 2339. The court, in citing that provision, determined that an employer’s failure to discharge an employee after knowledge of his or her wrongful acts may be used as evidence that can support ratification of that employee’s conduct.

In the end, there were a number of lessons that have been learned in the aftermath of Delfino. This includes the fact that although employers can take some degree comfort that the CDA can offer them immunity if out of line employees make offensive or threatening Internet postings or emails, conservative employers should take corrective actions immediately against offending employees when such conduct is discovered. This action potentially should include termination, if the circumstances so warrant. Employers should institute certain policies and procedures that prohibit employees from using the employer’s computers to post or send threatening or offensive information. Moreover, since CDA immunity will be lost if the employer cannot establish that the information at issue was “provided by another information content provider”, cautious employers will also need to avoid any conduct that would suggest the employer has promoted, sponsored, initiated, or ratified the offending material in any way, shape or form.

Los Angeles is one of the most highly developed and economically stable cities in the world. It is one of the leaders in international trade, entertainment, aviation, apparel and tourism.

 

It is also a home to various industries such as media production, finance, telecommunications, law, modern medicine, health and transportation.

As it is, employment in Los Angeles is without a doubt on the rise. Consequently, employment problems will surely arise.

Whenever employment problems occur, victims may turn to Los Angeles Employment Law Defenders. They are helpful whether the problem arises in the pre employment, stage, employment proper or post employment stage.

Stages of Employment

Employees must be on guard of the different stages of employment. This is because employment problems may happen not only when an individual is rendering actual services but also during the application stage. The various stages of employment include pre-employment, employment and post employment.

Pre-employment Stage

Hiring

Under federal law, an employer does not have to hire most qualified applicant. However, an employer cannot base his/her hiring decisions on personal circumstances of an applicant that are not work-related. These circumstances often include:

Age

Race

Gender

Religious Beliefs

Nationality

Disability

During an interview, the interviewer cannot ask questions relating to these circumstances. It can only ask questions on personal characteristics if it could prevent the applicant from fulfilling the job’s requirements.

References

A previous employer may be asked of any non-confidential information about a previous employee. This information must be true and must not maliciously harm the employee. Otherwise, he/she may be liable for defamation in case of false information.

To avoid any liability, it has become a normal practice for employers to comment only on past employee’s job performance. They confirm only dates of hire and separation, plus wage or salary information.

Employment

It is during the employment stage that various violations of employees’ rights are taking place. These violations include discrimination, illegal dismissal, nonpayment of holiday pay, harassment and other work related disputes.

Employees at Will

In California, employees are presumed to be “at will” or those who can be terminated for any legal reason.

Generally, employees who signed an employment contract can only be terminated for reasons enumerated in the contract. In California, the at-will presumption can be overcome by evidence showing that employer’s power to terminate is limited in some way.

Workplace Protection

Federal and state laws require that most employers provide a place of employment that is safe and free from hazards. Otherwise, an employee may anonymously complain about an unsafe work environment. The employee, in turn, is protected from employer’s retribution.

Workplace Injury

Worker’s compensation laws are enacted to compensate employees who have been injured or killed in work related accidents. Dependents of a deceased or injured employee may also be entitled to benefits.

Employers, on the other hand, may be protected by limits placed on the amount of an employee’s recovery depending upon the classification of his or her disability: permanent total disability, temporary total disability or temporary partial disability.

Sexual Harassment

An employer may be liable to an employee for any act of “sexual harassment”. It includes any unwelcome sexual advances, conduct or other physical or verbal acts of a sexual nature, which occur in the workplace.

A professional help is required in determining the existence of harassment because the laws provide what conduct, or pattern of conduct, constitutes actionable sexual harassment.

Discrimination and Wrongful Termination

Employers are not allowed to terminate or discriminate against employees for the following reasons:

Age

Race

Sexual Preference

Religion

Nationality

Disability

Pregnancy

Post-employment

Unemployment Benefits

Unemployment benefits are based on combinations of federal and state statutes.

Unemployment compensation programs provide monetary compensation to workers who have been illegally terminated. Employees who voluntarily terminate their employment for “good cause” may also be entitled to benefits.

In California, the Employment Development Department oversees the unemployment insurance program pursuant to the provisions of the Unemployment Insurance Code and Title 22 of the California Code of Regulations.

An understanding of these various employment stages could spell a lot of difference in pursuing your claims. If you are in Los Angeles, its employment lawyers are always ready to defend you in court or settlement.

Our http://www.expertlosangelesattorney.com/EmploymentLaw.html> Los Angeles Employment Law Defenders expertly assist our clients in pursuing their employment claims. For a  free case analysis just log on to our website.

Employment according to dictionary means service. Employment involves two parties; employer and employee. Usually there exists a form of contract or a set of terms and conditions in employment. The employer is the person who holds power and is ideally in the authoritarian position and the employee is the person hired to render service/labour. Employment is a very important facet of a working person’s life. To him, employment defines his existence; his life-style, standard of living and bare necessities of life are regulated by employment.

Individuals, in most cases are competent enough to manage employment issues or any employment related issues themselves. But in some cases, the situation becomes grave and tricky and legal help is asked for. There are well-defined laws in every form of employment. However, with changes in every field and every aspect of life, these employment laws are changing rapidly. Even the most tactful and competent employer seeks help of an Employment lawyer to keep things in control. This is from one point of view, i.e. the employer’s side of the story. Employees, working and serving whole-heartedly often become victims of ill-treatment, sudden dismissal or discrimination. Many king-size organizations have trade unions to maintain employee interests and job security. But they also need the advice of employment lawyers to save their interests fighting against the employer.

Duncan Lewis & Co. is one of the leading and fastest growing law firms in U.K. Since its birth in 1998, Duncan Lewis & Co. have earned both name and fame in serving country’s corporate bodies and individual private clients with quality legal advice and winning law cases of any form. Duncan Lewis & Co. is highly reputed for settling the most complicated employment disputes. Employment law is changing everyday with all new forms of modernity and you really need to take expert assistance to sort any employment issues.

Our clientele ranges from individual Employees to small or big Employers and we render our service to all of them alike. We assist employees in case of sudden change of employment contract, sudden dismissal, racial/sexual harassment, bullying at work, holiday/sick pay or maternity rights, employee representation at Tribunals and settling any other unique employment hazards. Our employment department is available to help you in advising or making any employment legislation. It includes all issues regarding drafting of contracts, making agreements and negotiations, dismissals, defending claims against discrimination and the like.

Duncan Lewis & Co. helps you resolve any employment related issues or disputes at competitive rates and you are sure to get value for money. Clients are satisfied by the quality service they get from us and contact us time and again, whenever needed. For any employment related advice, visit duncanlewis.co.uk for immediate results.

Anyone who works for an employer for a regular wage or salary automatically has a contract of employment, regardless of whether it is written or not. The majority of employees work under open-ended contracts of employment. In other words, the contract continues until such time as the employer or employee ends it.

Many other employees however, work under fixed-term or specified-purpose contracts which are contracts which end on a specified date or when a specific task is completed.
The contract of employment will include some or all of the following elements (regardless of whether the employer and employee have specified them or not):

The terms that the courts say are in every contract of employment. Examples include the duty of every employer to provide a safe workplace and the duty of every employee to carry out the job to the best of his/her ability. This part of the contract is occasionally referred to as “common law”.

Terms that must be part of the contract as a result of laws passed. Examples include the right to take maternity leave. Such terms are part of the contract of employment even if the employer and employee do not specifically include them and replace any agreement between the employer and employee not to apply the particular law. So, the statutory right to take maternity leave overrides any agreement between the employer and employee that the employee will not take maternity leave.

Terms and conditions states must be in every contract, for example, the right of an employee to join a trade union.
Collective agreements

Joint Labor Committee Regulations

In addition, custom and practice in a particular workplace may form part of a contract. An example would be a particular level of overtime pay for employees.

In the case of these items instead of giving each employee the details in writing, the employer may refer an employee to other documents, for example, a pension scheme booklet or a collective agreement, provided that the employee has easy access to such documents.

The statement of terms must indicate the reference period being used by the employer for the purposes of the calculation of the employee’s entitlements under the Minimum Wage Act, 2000. (Under that Act the employer may calculate the employee’s minimum wage entitlement over a reference period that is no less than one week and no greater than one month).

The statement of terms must also inform the employee that he/she has the right to ask the employer for a written statement of his/her average hourly rate of pay for any reference period (except the current reference period) in the 12 months prior to the date of the employee’s request.

Note. Specific provisions in contract of employment
In recent times, some employers are adding in specific provisions in contract of employment that limit the ability of employees to work in a certain sector, with certain suppliers, clients, for a period following termination of employment. (For example, it may specifically state that the employee cannot work in a certain sector, with or for suppliers or clients of the former employer, etc.). There is nothing in employment law in that strictly forbids this, but there is no provision in employment law that allows this either.

Essentially, this is an issue of contract law – that is, the contract of employment signed and agreed between the employer and employee. If you have any concerns about this issue, you are strongly advised to seek legal advice from a competent legal professional in advance of signing this contract of employment. However, even if the contract of employment is signed, you are always free to seek such legal advice. Attorney fees can vary widely so shop around and obtain some quotes for legal advice before you proceed.

Note. Probationary period
The contract can include a probationary period and can allow for this period to be extended. The Unfair Dismissals Acts will not apply to the dismissal of an employee during a period at the beginning of employment when he/she is on probation or undergoing training provided that:

* the contract of employment is in writing
* the duration of probation or training is one year or less and is specified in the contract.

The above exclusion from the Acts will not apply if the dismissal results from trade union membership or activity, pregnancy related matters, or entitlements under the maternity protection, parental leave, adoptive leave and career’s leave legislation.

Changes to your contract of employment.

Changes to your contract of employment can occur due to a change in the law, but otherwise, changes must be agreed between your employer and yourself. The requirement for both the employer’s and the employee’s consent to changes in the terms of the contract is part of contract law.

From the above information you will see that the contract of employment is a very important document to have. Whenever you get hired, ensure that your new employer offers you this kind of security. Be cautious of employers who don’t give contract of employment.