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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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Signing a severance agreement

18 Nov Signing a severance agreement

Terminated employees often have questions about signing a severance agreement. Specifically, they want to know whether they should sign a severance agreement that their former employer offers them. Unfortunately, this is can be a complicated question. Before deciding to sign a severance agreement, you need to consider a number of factors, including the terms of the agreement, your situation, and your goals. You should also strongly considering consulting with an employment attorney to help you navigate this important decision. What is the effect of signing a severance agreement? A severance agreement is a contract which sets the terms of an employee's severance from an employer. Often, an employer will propose a severance agreement to an employee it has terminated. The specifics differ, but severance agreements usually center on two important terms. First, the employer will agree to pay the employee some chunk of money. Second, the employee will agree to waive any claims she might have against the employer. There are all sorts of other provisions that might be in a severance agreement, but those are the two most common and important. In essence, you're giving up your right to sue your former employer in exchange for money. For example, suppose your employer fired you for complaining about discrimination or harassment. That's unlawful retaliation and you could sue your employer for retaliating against you. But if you signed an agreement waiving your right to sue, that could prevent you from being able to pursue your case. Accordingly, you may want to think twice about signing such an agreement if you think you may have claims against your former employer. Other things to look out for in severance agreements While a waiver of claims is generally the most important part of a severance agreement, there are other potential terms to look out for. For example, many proposed agreements contain non-disclosure agreements or NDAs for short. Individual NDAs differ, but generally, they require parties to keep something secret. They can also prevent you from saying anything negative about your former employer. Another common term in severance agreements are arbitration clauses, in which you agree to submit any claims to arbitration and waive any right to sue in court. Arbitration is essentially a private court system. While an arbitration agreement is not a waiver of claims, arbitration is generally more friendly to employers than employees. As such, agreeing to arbitration is a big decision that you should not take lightly. Factors to consider when presented with a severance agreement Obviously, you should be skeptical of anything your former employer offers you. Chances are, they're not offering you severance pay out of the goodness of their heart. Instead, they're doing it because they believe they'll be better off with such an agreement in place. But that doesn't mean that you should never under any circumstances sign a severance agreement. There may be situations in which it makes sense to sign one. There's an endless number of a factors that might go in to that decision. For example, what are the terms? If your employer offers you a very large sum in severance pay, maybe it's worth it. How badly do you need the money? If you desperately need the money, the conditions of accepting the severance pay may be less severe than foregoing that severance pay. Are you aware of any potential claims you might have against the employer? If you believe you have a claim for harassment or discrimination, you probably don't want to give up those claims for a small amount of money. These are only a few of the factors to consider. The role of an attorney in a severance agreement If your employer has recently terminated you, the best thing you can do is contact an employment attorney. While you'll need to make the final decision regarding signing a severance agreement, an attorney can be helpful in a number of ways. First, an attorney can tell you what's in the agreement. Employers often draft agreements to be as complicated as possible. They hope that you'll sign without understanding what you're agreeing to. If you don't know what you're agreeing to, you can't make an informed decision. An attorney can help you understand exactly what's in there. Once you fully understand what's in the agreement, you can make the decision that is best for you and your family. Second, an attorney can identify any claims you might have. Because signing a severance agreement typically means waiving your claims, it's important to know what claims you have. If you've experienced severe sexual harassment, you probably know that you have a claim. But many claims are less obvious, some can be quite technical. If you're not an attorney, you may have potential claims of which you're not aware. An employment attorney can evaluate your situation and determine what, if any, claims you might have. Once you've identified potential claims, you can determine whether your former employer is offering fair value for the waiver of those claims. Finally, an attorney can help you negotiate a better severance agreement. Usually, the employer will send a proposed agreement and give you a sharp deadline to sign it. Obviously, the employer is going to draft an agreement that's advantageous to them. An attorney may be able negotiate a more fair agreement. Of course, you can try negotiating with the employer yourself. But an experienced employment attorney will likely get better results. So what should I do? Unfortunately, there's not a one size fits all answer. While consulting an attorney is an important part of the process, it's ultimately a decision you'll need to make for yourself. The most important thing is that you understand what you're agreeing to and what you're giving up by signing. Once you understand what's in the agreement, you can weigh the factors and do what's best for you and your family. If you need an employment attorney to review or help negotiate a severance agreement, contact the Khadder Law Firm today. For more, follow us on Twitter and Instagram.    ...

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FEHA protected activity retaliation

05 Nov FEHA Protected Activity Retaliation

Retaliation for Fair Employment and Housing Act, or FEHA, protected activity is a common form of unlawful retaliation. The FEHA prohibits employment discrimination and harassment. But it also makes it unlawful to retaliate against employees for engaging in protected activity. There are two central parts to a FEHA retaliation claim: protected activity and retaliation. FEHA protected activity that triggers retaliation provision The FEHA prohibits retaliation. But it only prohibits certain kinds of retaliation. Specifically, it prohibits retaliation against employees for engaging in conduct that qualifies as protected activity. Under the FEHA, protected activity means opposing employment practices that the FEHA makes unlawful. All sorts of things can count as opposition. But, most commonly, it's reporting or complaining to a manager or HR. For example, the FEHA makes sexual harassment unlawful. Reporting to HR is a form of opposition. Accordingly, an employer cannot retaliate against an employee for reporting sexual harassment to HR. Doing so would violate the FEHA. Conversely, the FEHA doesn't make it unlawful for your boss to criticize your work. So suppose your boss criticizes your work. You think her criticism is unfair and you complain to HR. While that complaint to HR might be opposition, it's still probably not protected activity. That's because the conduct about which you're complaining isn't prohibited by the FEHA. Of course, the law is not black and white. There is a fine line between conduct that is impolite and conduct that violates the FEHA. Fortunately, the underlying conduct need not actually violate the FEHA. Instead the employee just needs to show they had a good faith belief that it does. For example, if an employee complains about what they honestly think is unlawful harassment, then the FEHA protects that employee from retaliation. Of course, that honest belief typically has to be at least somewhat reasonable. FEHA protected activity retaliation requires an adverse employment action Technically under the law, retaliation refers to the overall act of retaliating against an employee for engaging in protected activity. The employer does the retaliating by taking what's called an adverse employment action. Many people assume this means firing, but it's actually much broader. In simple terms, an adverse employment action is anything that negatively affects the conditions of your employment. In addition to termination, this can be things like, demotions, failure to promote, or transfer to a less desirable role. This is not an exhaustive list. In fact, there isn't necessarily an exhaustive list. Whether something qualifies as an adverse employment action depends on the facts of the situation. Causation is an element of retaliation Critically, it is not enough to show merely protected activity and an adverse employment action. To establish a retaliation claim, an employee must show some causal connection between the protected activity and the adverse employment action. That is, they must show the adverse employment action was at least partly because of the protected activity. Obviously, the best evidence is direct evidence. But in most cases, an employer won't say they're firing an employee because of their protected activity. More often, an employer will offer some legitimate reason for the adverse employment action and the employee will need to use circumstantial evidence to establish causation. For example, close temporal proximity between the protected activity and the adverse action is evidence of causation (though usually not enough evidence on it's own). There are non-FEHA retaliation laws that apply in California It's important to note that there are other types of unlawful retaliation. For example, California Labor Code section 1102.5  prohibits retaliation against qualifying employees. There are also federal laws, such as the Sarbanes-Oxley Act, that prohibit retaliation in certain circumstances.Consequently, if you have experienced retaliation that doesn't fit within the FEHA retaliation discussed above, that doesn't mean you don't have a case. You should contact an employer lawyer to evaluate your case. They can determine what, if any, retaliation claims you may have. If you an employer has retaliated against you, contact the Khadder Law Firm today for a free consultation. For more, follow us on Twitter and Instagram....

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Paying defendant's expenses

30 Oct You’re Unlikely to Pay Defendant’s Expenses

You're unlikely to pay defendant's expenses, even if you lose your harassment, discrimination, or retaliation case. This is a concern many people have when they consider suing their employer. While it's not technically impossible, it's very unlikely in practice. In general, you're unlikely to pay defendant's expenses (at least their attorney's fees) in the United States Many non-lawyers assume that if you lose a lawsuit, you have to pay for the opposing party's expenses. But this is generally not the case in the United States. Under the American Rule, each party pays their own attorneys. This default rule applies unless a statute or contract says otherwise. Statutes that require a losing party to pay for the winning party's expenses are called shifting statutes. Shifting statutes: Exception to the American Rule Shifting statutes apply to certain types of legal claims. For example, you can get attorney's fees if you win a lawsuit under the Employee Retirement Income Security Act. That's because that law specifically says you can. If it didn't, both sides would pay their own attorneys, regardless of outcome. Conversely, if you're injured in a car accident and sue the other driver for negligence, you'll probably have to pay your own attorney, even if you win. Likewise, if you lose, the other driver will still pay her own attorneys. That's because no shifting statute applies to negligence lawsuits in California. Another exception to the American Rule is contracts. Some contracts say that if one party sues the other in connection with the contract, the loser pays the winner's expenses. But this more common in commercial settings. If you're suing your employer for discrimination, you're not suing to enforce a contract, so this less of a concern in a typical employment case. Lastly, as a practical matter, most cases settle before trial. Shifting statutes only apply once trial is over. But very few cases make it that far. So even when a shifting statute applies, the case usually settles before it comes into play. If a case settles before a verdict, each side typically pays their own attorneys. Asymmetrical fee and cost shifting in Title VII and FEHA Even if an exception to the American Rule applies, there is an exception to the exception for discrimination, harassment, and retaliation cases in California. If you're bringing a lawsuit in California for discrimination, harassment, or retaliation at work, you're likely bringing it under Title VII or the Fair Employment and Housing Act (the FEHA). Title VII is federal law and the FEHA is state law. They have some differences, but both prohibit discrimination, harassment, and retaliation at work. Title VII and FEHA both provide for asymmetrical fee and cost shifting (fees are what you pay your attorney, costs are other expenses). Asymmetrical shifting schemes make it easier for one side to recover fees and costs. Under both Title VII and FEHA, a victorious plaintiff can recover both fees and costs from the defendant. But a victorious defendant cannot recover fees or costs from a plaintiff unless the plaintiff's case is frivolous (courts very rarely find that a case is frivolous). This gets a bit tricky because California has a statute that allows prevailing parties to collect costs (but not attorney's fees) from the losing party. But Title VII and the FEHA are exceptions to this rule. Accordingly, while California's default rule entitles a prevailing defendant to costs, this is not the case with non-frivolous Title VII or FEHA claims. Talk to an employment attorney about your potential discrimination, harassment, or retaliation case In summary, Title VII or FEHA plaintiffs are unlikely to pay the defendant's expenses, even if they lose. As such, the risk of bearing the employer's expenses should not prevent you from pursuing a legitimate claim for discrimination, harassment, or retaliation. This is why the asymmetrical shifting scheme exists. The drafters of Title VII and the FEHA didn't want fear of having to pay defendant's expenses to scare plaintiffs away. Of course, this is only one of many things to consider before suing your employer. But don't let fear of losing and paying the defendant's expenses prevent you from having a lawyer evaluate your case. If you need an attorney for an employment matter, contact the Khadder Law Firm today for a free consultation. For more, follow us on Twitter and Instagram....

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