Federal Law

10 Mar What is hearsay evidence?

Posted at 17:00h in California Law, Federal Law, Uncategorized

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...

She could be an employee or independent contractor

19 Nov Employee versus Independent Contractor

Posted at 15:45h in California Labor Code, California Law, Employment Categories, Employment Classifications, Federal Law, Independent Contractor, Wages

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....

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

Posted at 17:53h in Attorney's Fees, California Law, Federal Law, FEHA

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....

21 Oct Different Sources of Employment Law

Posted at 14:25h in Attorney's Fees, California Law, Damages, Employment Discrimination, Federal Law, FEHA, Litigation - Suing Your Employer, Remedies, Title VII

There are different sources of employment law in California. You've probably heard about Title VII. This is federal law, which Congress enacted as part of the Civil Rights Act of 1964. Title VII prohibits harassment and discrimination in the workplace. But California also has its own version of Title VII: the Fair Employment and Housing Act, also known as the FEHA. Like Title VII, the FEHA prohibits workplace harassment and discrimination. Both Title VII and the FEHA apply in California. If you're considering suing your employer, you may be able to choose between the two. Different sources of employment law, similar rules and remedies After the federal government enacted Title VII, many states passed their own versions of the law. The FEHA is California's version of Title VII. Because the FEHA is based on Title VII, there are many similarities between the two laws. For example, both prohibit harassment and discrimination based on certain characteristics, such as race, gender, and religion. They both also prohibit employers from retaliating against employees who oppose harassment or discrimination. Moreover, they both set up a mandatory administrative process. Title VII created the Equal Employment Opportunity Commission. If you want to sue your employer under Title VII, you have to go to the EEOC first. Likewise, the FEHA has the Department of Fair Employment and Housing. Like under Title VII, you must go through the DFEH's administrative process before you sue your employer in court under the FEHA. Finally, Title VII and the FEHA both authorize punitive damages and allow victorious plaintiffs to collect attorney fees and costs. They both also have asymmetrical cost shifting. This means prevailing plaintiffs can recover fees and costs as a matter of right, but when defendants win, they can't recover fees and costs unless the plaintiff's lawsuit was frivolous. Though similar, there are important differences between Title VII and the FEHA While similar, there some key differences between Title VII and the FEHA. Perhaps the most important difference from a plaintiff's prospective is Title VII's damages cap. While the FEHA allows for unlimited compensatory and punitive damages, Title VII limits recoverable damages. Additionally, Title VII is federal law. This means that federal courts automatically have jurisdiction over Title VII cases. While California courts can hear cases involving federal law, a defendant being sued under federal law has the right to remove the case to federal court. While this doesn't affect the substantive law, federal courts use different procedural rules. For example, California courts do not require plaintiffs to win unanimous jury verdicts, while federal courts do require unanimous verdicts. Moreover, it's often more expensive to litigate in federal court and plaintiffs' attorney are generally less experienced there. Accordingly, plaintiffs often prefer state court. Because the FEHA is not federal law, defendants have a harder time removing FEHA cases to federal court. Finally, there are some differences in the substance of the two laws. For example, the FEHA prohibits discrimination based on sexual orientation and gender identity. It's unclear whether Title VII does so, though the Supreme Court is expected to conclusively resolve this issue in the spring of 2020. Different sources of employment law: which law should I use? Now you know there are different sources of employment law in California. If you're considering suing your employer, you might be wondering: which source of law should I use? The answer: it depends. Most plaintiffs' attorney probably prefer the FEHA. But that doesn't mean that every plaintiff in every situation should proceed under the FEHA. There are some instances in which Title VII is the way to go. First, in some situations, Title VII is your only option. For example, if you are an employee of the federal government, you generally can't use the FEHA to sue the federal government in state court. There are also some areas, called federal enclaves, where only federal law applies. If the offending conduct occurred in a federal enclave, Title VII may be the exclusive remedy. Additionally, you may be in an area where the juries are not favorable for plaintiffs. Because the applicable federal court may be in a different city or county, it's possible you could get a more favorable jury in federal court. Because you probably can't bring your FEHA claims in federal court, you may want to use Title VII if this is the case. These are only a few of the many factors involved in choosing whether to pursue claims under Title VII or the FEHA. Ultimately, this is a decision you'll need make in consultation with your attorney. It's also important to remember that there are other laws, both state and federal, that might apply in the employment context. If you believe you have a claim against your employer, contact the Khadder Law Firm today for a free consultation. To stay up to date on our blog posts and more, follow us on Twitter and Instagram....

03 Oct Court case on gay, transgender employment discrimination

Posted at 13:07h in California Law, Employment Discrimination, Federal Law, FEHA, LGBTQ, Protected Categories, Title VII

The Supreme Court will decide whether discrimination against gay and transgender employees is illegal under federal law. The Court has agreed to hear three cases on the issues in the fall term. The cases involve Title VII of the Civil Rights Act of 1964. Title VII prohibits employment discrimination based on protected classes such as race, gender, and national origin. In these cases, the Court will decide whether Title VII makes sexual orientation and gender identity protected classes. Lower courts are divided on whether employment discrimination against gay and transgender workers is unlawful under Title VII Courts are split on whether Title VII protects gay and transgender employees. Most courts have found Title VII does not protect sexual orientation and gender identity. Where this is the law, employers can discriminate against gay and transgender people. For example, an employer can fire an employee for being gay. Some courts, however, say Title VII does protect gay and transgender workers. This means that gay and transgender employees can sue their employers for employment discrimination under Title VII. Therefore, whether federal law protects gay and transgender workers from discrimination currently depends on location. In some places it does, in other places it does not. The Supreme Court's decision will set the law for the whole country. Many states do not have laws prohibiting employment discrimination against gay and transgender people Title VII is federal law so it applies across the entire country. Because many states do not have strong employment discrimination laws, Title VII is very important. If you live in a state that does not protect gay or transgender employees, Title VII is your only protection. Therefore, millions of gay and transgender Americans will be left with no protection if the Supreme Court decides Title VII does not protect them. The Court will hear arguments on gay and transgender employment discrimination on October 8 The court will hear oral arguments in these cases on October 8, 2019. Next, the Court will issue decisions. This will likely happen in the next several months. However, it's possible the Court could dodge the issue and resolve the cases on procedural grounds. Accordingly, the Court may not definitely resolve the issues raised in these cases at this time. The Supreme Court will decide whether employers can discriminate against gay and transgender workers under federal law only Fortunately, California law does protect gay and transgender people from employment discrimination. Therefore, whatever the Supreme Court decides, California law will still protect gay and transgender workers from employment discrimination. If you believe an employer has discriminated against you, contact the Khadder Law Firm today for a free consultation. For updates on these cases and more, follow us on Twitter and Instagram....