Author: Cody Bolce

30 Mar New Coronavirus Safety Guidelines

There are new Coronavirus safety guidelines. Both the state of California and the federal government have certain workplace safety regulations. These regulations set minimum safety requirements that employers must meet. Employers that fail to take adequate steps to protect their employers can face legal consequences. New Coronavirus safety guidelines highlights responsibility to protect employees These safety regulations are still in effect in the midst of the global Coronavirus outbreak. This means that your employer still has an obligation to take particular steps to keep you safe. While there are no workplace safety regulations that were intended specifically for a global pandemic, there are some regulations which apply to the current situation. For example, hospitals, clinics, and other medical providers are required to take steps to protect workers from aerosol transmissible diseases. California has also issued new guidance to childcare providers regarding protecting their employers from the spread of the Coronavirus. While medical providers are subject to particularly strict guidelines regarding protecting workers from communicable diseases, all employers have a general duty to provide a safe workplace. Accordingly, the state of California has also published general guidance for employers not covered by more specific regulations. Safety regulations apply to Coronavirus outbreak The bottom line is that all employees have a right to a safe workplace. This does not change in moments of crisis. In fact, it’s more important than ever that employers abide by regulations that will protect their employees. Even a shortage of equipment, such as those experienced by some healthcare providers, does not necessarily excuse employers from fulfilling their obligation to provide a safe workplace. If you believe your employer has not taken appropriate steps to protect you or your workplace from Coronavirus, contact the Khadder Law Firm today for a free initial consultation. For updates on this and more, follow us on Twitter and Instagram. And like us on Facebook....

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Hearsay Evidence

10 Mar What is hearsay evidence?

You've probably heard the word hearsay, but what is hearsay evidence? Colloquially, people often use hearsay to mean something like "second hand information." But in the courtroom, hearsay is a term of art with a specific legal meaning. It's one of the most important rules of evidence. It's also one of the most complicated. Accordingly, to evaluate the admissibility of a piece of evidence (whether that evidence can be used in court), it's important to understand the hearsay rule . What is hearsay evidence? Hearsay evidence is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated. There's a few parts to this, so let's take it piece by piece. First, it's important to note that "statement" includes both oral and written statements.  The second part just means statements made outside of court. The final part, "offered to prove the truth of the matter stated," is more complicated. Suppose I want to prove that Jim was driving a red car at the time of the accident. Now say Juan said to Christine: "Jim was driving a red car at the time of the accident." Juan's statement to Christine would be evidence that Jim was driving a red car at the time of the accident. But it would be hearsay if Christine testified to that statement to prove Jim was driving a red car. That's because I'm using the statement "Jim was driving a red car," to prove Jim was driving a red car. Now suppose I want to prove that Christine believed that Jim was driving a red car at the time of the accident. In this case, Christine's testimony that Juan told her that Jim was driving a red car would not be hearsay. That's because I'm not offering that statement to prove that Jim was driving a red car. Instead, I'm using it to prove only that Christine believed Jim was driving a red car. Therefore, it is not offered to prove the truth of the matter stated (that Jim was driving a red car) and is not hearsay. What is the significance of evidence being hearsay? So that's hearsay. But what is the significance of the hearsay rule? In general, hearsay evidence is inadmissible in court. So, if one side tries to offer hearsay evidence, the other side can object and ask the judge not to allow the evidence. If the judge determines the evidence is hearsay, the judge will not allow that evidence to be admitted (unless there's an exception, which is discussed below). But remember, a statement is only hearsay if it's offered to prove the truth of the statement. So a statement might be inadmissible for one purpose (to prove that Jim was driving a red car), but admissible for another (to prove that Christine believed Jim was driving a red car). Specifically, lawyers often use out of court statements to show things like knowledge or intent. If there is no reason to offer the evidence other than the proving the truth of the matter stated, the party seeking to offer the evidence will need to find an exception to the hearsay rule. Also, note that when an out of court statement is offered to prove something other than the truth of the matter stated, the judge will typically give the jury a special instruction. For example, take the red car example above. There, I offered Christine's testimony about Juan telling her that Jim was driving a red car to prove she believed Jim was driving a red car. This is not hearsay, but I can't use it to prove Jim was driving a red car. So the judge might instruct the jury that it may not consider that evidence in deciding whether Jim was driving a red car. Of course, in practice, it's difficult for jurors to consider evidence for one issue and ignore it for another, but that's the rule. Exceptions to the hearsay rule Hearsay is subject to numerous exceptions. That is, in certain situations, a statement may be admissible even if it is technically hearsay. For example, probably the most common is the opposing party statement or party admission exception. Under this rule, one side can freely offer statements made by the opposing party, even if the opposing party made those statements out of court. For example, say Ann sues Casey for stealing Ann's purse. Ann could call Ali to testify that Casey told him that he stole Ann's purse to prove that Casey stole Ann's purse. Normally, this would be inadmissible hearsay, since it's an out of court statement and Ann is offering it to prove the truth of what's stated. But, because it's the statement of the opposing party, Ann can offer this statement. Keep in mind, however, that this only applies to statements made by an opposing party. You cannot bring in your own statements under this exception. Policy rationale for the hearsay rule and it's exceptions The hearsay rule has numerous other exceptions. There's too many to list here, but thinking about the purpose of the hearsay rule can be a shortcut to finding exceptions. The hearsay rule exists because statements made under oath, in court, where the witness is subject to cross-examination by attorneys, are more reliable than those made casually on the street. If somebody is making statements that are damaging to your case, you want to be able to cross-examine them to test the reliability of those statements and the trustworthiness of the person making them. You can't do this unless that person is in court under oath. A lie can be debunked under cross-examination, but even an egregious lie is difficult to rebut with no opportunity to confront the liar. But sometimes, this isn't as important. For example, the opposing party statement exception discussed above makes sense in light of the purpose of the hearsay rule. You can't cross-examine yourself so there's no need to ensure an opportunity to cross-examine. Additionally, there's another exception for statements against...

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New Independent Contractor Law

06 Jan New Independent Contractor Law

California's new independent contractor law went into effect on January 1, 2020. The law, commonly referred to as AB 5, would make it harder for employers to treat workers as independent contractors. It's too early to know exactly what effects the new law will have, but it will likely reshape the gig economy, which relies heavily on independent contractors. Effects of the new independent contractor law The practical effect of the new law is the reclassification of many independent contractors as employees. The new law changes the test used to determine whether someone is an employee or independent contractor. As of January 1, 2020, the law emphasizes the level of control that employers exert over the worker. And it focuses more on whether the worker's job is part of the employer's core business. In theory, this should require companies like Uber and Lyft to treat their drivers as employees. But it's unclear exactly what this will look like in practice. There is already legal controversy about the new law Even prior to it going into effect, Uber said it didn't intend to comply with AB 5. Uber and Postmates have already filed a lawsuit, claiming AB 5 is unconstitutional. More employers will likely file similar lawsuits. Furthermore, misclassified employees will likely start bringing lawsuits of their own. There are advantages to being an employee and misclassified employees can recover penalties from employers. So employers who refuse to comply with the new rules may find themselves defending lawsuits filed by misclassified independent contractors. If you believe your employer has misclassified you, contact the Khadder Law Firm today for a free initial consultation. For updates on this and more, follow us on Twitter and Instagram. And like us on Facebook....

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21 Nov Proving employment discrimination

Proving employment discrimination can be challenging. Most employers won't openly admit to discriminating against you. But that doesn't mean they haven't done so. Nor does it mean you can't prove that they did. You can still use circumstantial evidence to prove discrimination in court. Unfortunately, employers can sometimes convince a judge to throw out a lawsuit before it gets to a jury if there's not enough evidence. So how do you prove your case to the judge when you don't have any direct evidence of discrimination? And how do you convince a jury your employer discriminated against you when the employer can deny they did? Proving employment discrimination through direct evidence The first way of proving employment discrimination is through direct evidence of discriminatory animus. If your employer fired you and explicitly said it was because of your skin color, that's direct evidence of discrimination. In this instance, proving discrimination would simply mean proving what the employer said. If you have direct evidence of discrimination, that should be enough evidence to get you to the jury. If the jury believes that evidence, you're in a good position to win your case. But this is not typical. Usually, the employer offers some legitimate reason for taking the action it took. This can be anything, but it common examples are performance or trying to save money on labor. Even if the reason the employer gives is obviously untrue, you still don't have the same direct evidence of discrimination. In these cases, the employer will often file a motion asking the court to dismiss the case because there's no evidence of discrimination. So how do you prove discrimination in such cases? McDonald Douglas burden shifting Fortunately, the second way to prove employment discrimination, called the McDonald Douglas test, is made for these types of cases. This Supreme Court created this test in McDonald Douglas v. Green, hence the name. The Supreme Court created this test to help analyze cases lacking direct evidence of discrimination. Here's how it works. Initially, the plaintiff has the burden to establish a prima facie case of discrimination. To establish a prima facie case of discrimination, the plaintiff must show (1) that she was the member of a protected class, (2) that she suffered an adverse employment action (e.g. firing, demotions, etc.), (3) that she was qualified, and (4) that similarly situated employees not within her protected class were treated more favorably. For example, if you are an African-American who was terminated despite being qualified and performing adequately, while similarly situated non-African-Americans were not terminated, you would have a prima facie case of discrimination. This is a fairly easy standard to meet. You just need some evidence of each element. Once the employee has established a prima facie case, the employer has the burden to offer a legitimate non-discriminatory reason for the adverse employment action. Once, it does, the burdens flips back to the employee to show that the employer's offered reason was not actually what motivated it. If you can provide some evidence that the reason the employer offers wasn't the real reason, the judge should let your case go to the jury. Proving discrimination to a jury Once you get to the jury, the distinction between direct and circumstantial evidence goes away. You simply use whatever evidence you have to convince the jury that the employer took action against you for an unlawful reason. Of course, direct evidence is best. But you wont have that in most cases. At this stage, there's all sorts of ways to convince the jury. How you do so depends on the facts of your case. For example, say the employer insists they fired you because you were not performing well. In that case, you could use a recent positive performance review to show that's not a credible reason. Likewise, if your boss made derogatory comments about you, that's evidence that the employer's decisions was based on a discriminatory motive. If you believe your employer has discriminated against you, contact the Khadder Law Firm today for a free consultation. For more, follow us on Twitter and Instagram....

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She could be an employee or independent contractor

19 Nov Employee versus Independent Contractor

Many people are unsure what the different classifications of employee verus independent contractor mean. So what is an employee? What is an independent contractor? What's the difference between the two? And why does it matter? Employee versus independent contractor: what's the difference? People often use worker and employee to mean the same thing. But this isn't actually correct. Some workers are employees, others are independent contractors. So what's the difference? It's actually a fairly complicated legal question. Under both state and federal law, courts look at all kinds of factors to determine whether someone is an employee or an independent contractor. For simplicity's sake, someone is generally an employee when their employer exercises a lot of control over their work. For example, someone that goes to their company's place of business everyday, wears their company provided uniform, uses company equipment, and does what the company tells them to do all day is an employee. Employees work directly for the employer and the employer pays them and provides whatever benefits the employee might get. At least until recently, this has been the dominant working arrangement in developed economies. Conversely, an independent contractor is a worker that is not an employee. This traditionally meant someone who contracted to perform a certain task. For example, the plumber you hire to fix your leaky faucet is an independent contractor. You haven't hired her as employee. You've agreed to pay her to perform a specific task in exchange for a set fee. Once she's finished, you pay her and you both go your separate ways. Why the difference matters Employee versus independent contractor is not simply a legal distinction that exists only on paper. Whether someone is an employee or independent contractor has important real world consequences. First, employees are often entitled to certain benefits, such as health insurance or retirement plans. Independent contractors are not. Second, many labor and employment regulations apply only to employees. Most state and federal wage and hour laws don't apply to independent contractors. For example, you don't need to pay that plumber you hired minimum wage or overtime. Likewise, the state and federal laws prohibiting employment discrimination and workplace harassment generally do not apply to independent contractors. So if you're classified as independent contractor, you may not be to sue if you're discriminated against. Third, and finally, having employees requires employers to provide things like workers' compensation coverage. Conversely, a company does not need to provide workers' compensation coverage for its independent contractors. Likewise, for things like unemployment insurance and social security. The changing landscape Unsurprisingly, the use of independent contractors is on the rise. Companies see it as a way to cut costs without cutting vital labor. But this also leads to abuse. Companies often hire people as independent contractors even when they should technically be employees under the law. Of course, misclassifying employees as independent contractors is unlawful and companies can be subject to penalties for doing so. But, because most people wont sue, companies usually get away with it. Naturally, the increasing use of independent contractors has caused some push back. California recently passed a law cracking down on the use of independent contractors. Other states are also considering similar laws. These laws target workers in the gig economy, such as Uber or Lyft drivers, but will affect other workers as well. If you believe you are misclassified as independent contractor, contact the Khadder Law Firm today for a free consultation. For more follow us on Twitter and Instagram....

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