Law Offices of John P. Martin

In Washington, if you are non-exempt employee you are required to be paid overtime (time-and-half) for every hour over 40 you work in a week.

It is not an option. The employer must pay you overtime.

However, sometimes employers will fail to pay overtime when required. Often, they are not aware that they are required to pay. They may believe you are exempt; they may be unaware of how many hours you are working (especially if you are paid by salary); and, unfortunately, occasionally they know they should pay you overtime but they just don’t want to do it.

Sometime it is not clear whether you are owed overtime. It depends on your actual job duties. Note, I said job duties, not job title. Just because an employer gives you a “management” title and a salary doesn’t mean you are exempt from overtime. If your job has the characteristics of an hourly, non-leadership/management job then usually are due  overtime when working 40+ hours. There are other considerations that can apply, but I am not going to explain them all here. (See, Google.)

What if you ask your boss whether you are owed overtime — and she gets angry and fires you?  You may wonder why would an employee fire someone asking a simple question?

Well you never you know…Maybe they terminated you because they don’t want an ungrateful employee on board. Maybe they are afraid that you are a busy-body looking for trouble. Sometimes it is because they know or suspect that they should pay you, and often other employees, overtime, and by firing you they think they can continue the practice without interference?

The point is that it happens. People get fired for asking about overtime.

What to do? Should you never ask about overtime? If you are interested, ask away.

Washington law recognizes the tort, or claim, of Wrongful Termination in Violation of Public Policy. The public policy in question is the law RCW 49.46.130 which concerns overtime pay. You see firing you for asking about something the state thinks is an important worker right is unlawful.

If you get fired for asking about overtime your employer will liable for the overtime wages owed, plus back pay and front related to your being wrongfully terminated.

RCW49.60.030
Freedom from discrimination — Declaration of civil rights.

(1) The right to be free from discrimination because of race, creed, color, national origin, sex, honorably discharged veteran or military status, sexual orientation, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability is recognized as and declared to be a civil right. This right shall include, but not be limited to:

(a) The right to obtain and hold employment without discrimination;

(b) The right to the full enjoyment of any of the accommodations, advantages, facilities, or privileges of any place of public resort, accommodation, assemblage, or amusement;

(c) The right to engage in real estate transactions without discrimination, including discrimination against families with children;

(d) The right to engage in credit transactions without discrimination;

(e) The right to engage in insurance transactions or transactions with health maintenance organizations without discrimination: PROVIDED, That a practice which is not unlawful under RCW 48.30.300, 48.44.220, or 48.46.370 does not constitute an unfair practice for the purposes of this subparagraph;

(f) The right to engage in commerce free from any discriminatory boycotts or blacklists. Discriminatory boycotts or blacklists for purposes of this section shall be defined as the formation or execution of any express or implied agreement, understanding, policy or contractual arrangement for economic benefit between any persons which is not specifically authorized by the laws of the United States and which is required or imposed, either directly or indirectly, overtly or covertly, by a foreign government or foreign person in order to restrict, condition, prohibit, or interfere with or in order to exclude any person or persons from any business relationship on the basis of race, color, creed, religion, sex, honorably discharged veteran or military status, sexual orientation, the presence of any sensory, mental, or physical disability, or the use of a trained dog guide or service animal by a person with a disability, or national origin or lawful business relationship: PROVIDED HOWEVER, That nothing herein contained shall prohibit the use of boycotts as authorized by law pertaining to labor disputes and unfair labor practices; and

(g) The right of a mother to breastfeed her child in any place of public resort, accommodation, assemblage, or amusement.

(2) Any person deeming himself or herself injured by any act in violation of this chapter shall have a civil action in a court of competent jurisdiction to enjoin further violations, or to recover the actual damages sustained by the person, or both, together with the cost of suit including reasonable attorneys’ fees or any other appropriate remedy authorized by this chapter or the United States Civil Rights Act of 1964 as amended, or the Federal Fair Housing Amendments Act of 1988 (42 U.S.C. Sec. 3601 et seq.).

(3) Except for any unfair practice committed by an employer against an employee or a prospective employee, or any unfair practice in a real estate transaction which is the basis for relief specified in the amendments to RCW 49.60.225 contained in chapter 69, Laws of 1993, any unfair practice prohibited by this chapter which is committed in the course of trade or commerce as defined in the Consumer Protection Act, chapter 19.86 RCW, is, for the purpose of applying that chapter, a matter affecting the public interest, is not reasonable in relation to the development and preservation of business, and is an unfair or deceptive act in trade or commerce.

Being a victim of discrimination in the workplace is one of the most heartbreaking experiences one can confront. Whether the discrimination you face is based on national origin, disability, gender, or other unlawful reasons , it is always a shock.

This day and age, especially, in the Seattle area, we like to believe that discrimination is a thing of the past. Being discriminated against is always a shocking and distressing experience. And, it is even more harmful when it happens in the course of our employment. Being discriminated at work hurts because it is where we are the most are the most vulnerable – especially during these rough economic times.

However, you can turn the tables, Washington has some of the strongest anti-discrimination laws in the country. Use them.

If you feel you have been discriminated against please give me a call or drop me an email. I often take cases on contingency or partial contingency.

Two years ago Nicholas Francisco mysteriously vanished, leaving behind two children and a pregnant wife.

He called his daughter Zea, promising he was coming to their SeaTac home to make Valentine’s Day cookies, then left his job on lower Queen Anne.

His disappearance triggered a frantic missing person search, including search parties, and his wife making televised appeals for information as to his whereabouts. Friends and family setup a website to help find him: www.findnicholasfrancisco.com

Now, that website is both eerie and pathetic, given that on Nov. 9, 2009, the King County Sheriff announced that Nicholas Francisco was safe-and-sound and living in another state.

The Sheriff closed the case. Once the man had been found safe and sound they had nothing more to do with the case. However, KIRO 7 TV has tracked him down and interviewed him. According to the story, he has changed his name and is over $16,000 behind in child support.

I guess it goes to show that you can run but you can’t hide. Though, he has managed to make things far worse and more complicated than they would have been if he had just filed for dissolution. His actions may have slowed down the DSHS and his creditors (Student loans he has hung on his ex-wife) they will catch up to him eventually.

Sometimes it can be hard to face the difficultly of a dissolution and the child custody and child support issues, but trying to disappear like this guy did is not the way to go. He has unnecessarily made things much harder for his kids and his ex-wife.

Non-competes.

Often you casually sign them when starting a new job. However, someday you will probably need to change employers. And sometimes you are leaving your job to join a company that in some way competes with your old employer. Now, it comes back to you. What about that non-compete I signed years ago? You may think to yourself, “those things are not really enforceable — that’s what everyone says…”

You may think, “After all, how can I be prevented from practicing my livelihood or earning a living. I am a Widget Salesman, so I should be able to sell Widgets for Acme, just as sold them for my former employer, Blackwatch.”

Unfortunately, that is not the way of the world, at least, not the way in the State of Washington. If you enter into a contract that includes a lawful non-compete clause, courts in Washington will enforce it. This can cause serious problems for the employee, as well, as his or her new employer.

That’s the bad news. But there is good news. In practice many employers have non-compete clauses that are invalid because the agreement is not a lawful contract. Or the non-compete is unlawful because it is too broad.

First of all, if you enter into the non-compete agreement after you have started employment it is likely that it is not enforceable in Washington. Unless the employer exchanges something with you for your promise to abide by the non-compete, the agreement will not be enforceable. In legal terms, the agreement will not be a contract because it lacks of consideration. For a contract to be valid, both sides must exchange, or promise to exchange, something of value. If you sign the non-compete before you start working (before you are an employee) then the promise of future employment is considered valid consideration for your promise. If you sign the agreement after you have been employed for awhile then the employer has to give something in exchange for your promise not to compete. E.g., A promotion, bonus, etc. Continued employment is not enough. When non-competes are entered into during employment, the necessary consideration is rarely given to the employee. An agreement without consideration is not a contract. Therefore, there is no legal obligation to abide by it.

Second, the non-compete may be too broad to be unlawful because it is not reasonable. A reasonable non-compete must be limited to what is necessary to protect the interest of the employer. Determining if a non-compete is too broad depends on the specific circumstances of the employment and the language of the non-compete. Some hints that the non-compete is unlawful include: no time limit (e.g, many valid non-competes will have a duration of 1 year), geographic distance (e.g., limiting non-compete to within 100 miles of the employer), and banning the employee from working for competing employers in positions that would not threaten the employer. An over broad non-compete is considered void.

If the non-compete has one these defects, among others, the non-compete will be unenforceable. Of course, your specific circumstances will determine whether your non-complete is enforceable. Therefore, be sure to seek legal counsel to help you analyze your situation. If the non-compete is lawful it will be enforced by the courts against you and possibly against your new employer. Otherwise, you can ignore it.

Good luck.

Photograph taken during Parent’s Watch Night at oldest daughter’s dance studio.

These days many employers are trying to reduce costs by reducing staff headcount. But when employees are let go they may be eligible for unemployment benefits. The more former employees receiving unemployment the hirer and employers unemployment insurance premiums.

Employers may try to deny benefits by charging that the employer was terminated because they were incapable of performing the required work. In other words, the employee was incompetent. However, an employee who does not quit on their own volition cannot be denied unemployment benefits unless the reason for their termination was misconduct.

As long as, the employee does not intentionally do a bad job they are entitled to unemployment benefits.

These days you can find many low-cost options for getting a divorce. These include, online divorce services, form kits you can buy, paralegals, and even folks listed on craigslist that will “help you with the forms.” These options for divorce have three things in common: they are cheap, no lawyers are involved, and they are dangerous.

Usually, people think they will be fine using a non-lawyer solution because they have reached a settlement with their spouse. Then it is just a matter of filling out some paperwork, right?

Wrong. Many things can go wrong if a divorce (called dissolution in Washington) is prosecuted incorrectly. Once the Judge signs your papers you may be opening yourself up to some serious consequences down the line if things were not handled correctly. Just because both parties agree with the divorce settlement will not insulate you from the effects caused by a poorly prosecuted divorce.

For example, allocated marital debts are often a source of confusion. Just because you and your ex agree that he or she will keep the car and make the payments, does not get you off the hook if your ex fails to make payments. In other words, creditors who loaned money to you when you were married, will continue to hold both of you responsible for the debt, no matter what kind of agreement you have made with ex. So when your ex fails to make payments, the creditor will come after you. They won’t care about any agreement you and your ex have made among yourselves.

Similarly, if your ex files for bankruptcy, debts that were originally incurred while you were married will not be discharged. The creditors will just come after you for the money.

What about real property such as your house? If the documentation is poorly drafted and proper procedures are not followed you can lose your house long after your divorce. How could this happen?

Here is one example: Husband and wife have a home, they divorce, wife keeps the house. Twelve years later ex-husband files for bankruptcy. So far so good, the ex-wife probably has no worries, she doesn’t care if the ex is filing bankruptcy. It is none of her business, right? Wrong! (Again.)

It is very possible that the dissolution decree was poorly drafted, or as is often the case, recorded improperly. If so, then the Bankruptcy Trustee, for the benefit of the ex-husband’s creditors, will have no choice but to come after the once-marital home. Then before you know it, you will be in the middle of a serious legal fight to keep your house.

How could this happen? If the dissolution decree that awards you the marital home is not drafted correctly, and/or, the decree is not filed correctly, the trustee may have claim to all, or some of the home’s value. Basically, in these cases, the law allows the bankruptcy trustee to assume that your ex-spouse still has an ownership interest in the house. The next thing you know you could be facing a forced sale of your home to pay off debts of your ex-spouse. It is hard to imagine a worse situation.

Defending such an action in Federal Bankruptcy court will be expensive, much more expensive than hiring a attorney to help with the dissolution in the first place.

President Bush signed into law new amendments to the Americans with Disabilities Act.

Both houses of Congress passed the ADA Amendments Act with overwhelming bipartisan support. The measure was introduced to make legislative fixes for several federal court rulings and restore the original intent of Congress when the law was enacted.

The court decisions had limited worker protections offered under the existing statute and had “excluded individuals who should have been covered under the ADA,” according to a letter sent to Congress from a coalition of business-related and disability advocacy groups.

This looks like good news for employees.

These amendments were strongly favored by the American Association for People with Disabilities.

AAPD

Attorney Eric M. Albrittonhas filed a subpoena demanding that Google reveal information associated with blog postings, Internet searches, and financial data related to a libel lawsuit he filed last year against Cisco.

Article

More details including the case history and court documents can be found here:

Case History