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.

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.

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.

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

Here is an interesting case from Canada. A teacher is suing for $2.2million in damages because he was defamed and falsely accused of sexual harassment. Also, interesting are his discrimination claims based on students making anti-semitic remarks.

A veteran public school teacher has launched two defamation lawsuits against principals, teachers, parents and school board administrators, claiming over $2.2 million in damages.

One of Abrams’ legal actions claims he was told to adjust or otherwise falsify students’ marks at Bishop Pinkham, because parents had complained. When he did not do so, he says, he was subjected to harassment by superiors.

He said the school’s principal and vice-principal (later the principal) made statements to parents about his professional abilities and took action to undermine him at work.

Link to Story

Washington is a hotbed for religious discrimination cases.

Here and elsewhere across the country, complaints alleging religious discrimination are up dramatically, with confrontations arising over how people publicly observe their faith, when and where they pray, how they dress, what hours they work — and generally what they believe.

Between 2002 and 2006, the number of religious-discrimination complaints filed with the U.S. Equal Employment Opportunity Commission (EEOC) nationally rose more than 30 percent from the previous five years.

For Washington state, complaints rose 60 percent for the same period. In fact, religious complaints in the state for 2006 were the highest they’ve been in at least 15 years.

link

Making jokes and comments about a person’s religion can create a “humiliating and painful environment” and be a form of on-the-job discrimination, the state’s highest court ruled Thursday.

The New Jersey Supreme Court said remarks about someone’s faith — even as a form of ribbing or “breaking of chops” — cannot be tolerated in the workplace.

link

As the 15th anniversary of the Family Medical Leave Act (FMLA) approaches, the Bush administration is proposing significant changes.

The FMLA lets qualifying employees to take up to 12 weeks of unpaid leave to care for newborns, to tend family members who have serious medical issues, to tend to themselves when they have serious medical issues, etc.

Under proposals being considered by the Labor Department, workers would have to tell their bosses in advance when they take nonemergency leave, instead of being able to wait until two days after they left. They would have to undergo “fitness-for-duty” evaluations if they took intermittent leave for medical reasons and wanted to return to physically demanding jobs. To prove that they had a “serious health condition,” they would have to visit a health-care provider at least twice within a month of falling ill. What’s more, employers would have the right to contact health-care providers who authorized leave.”

Washington Post

FMLA is an important conerstone of employee rights and it should be watched closely to ensure that it retains its strength and vitality.

Often I hear from people that are seeking redress for being treated poorly, or unfairly, by their employer. Sometimes the circumstances are so frustrating and stressful that the maltreated employee is “forced” to quit a job that they enjoy, and/or need to maintain their health and sanity. However, having a mean boss, or jerks for co-workers is not an actionable offense. You have no right to a friendly work environment. Real-life often presents us with difficult people and circumstances to deal with, but rarely do such bad circumstances give rise to an actionable offense recognized by law.

But what if the bad treatment rises to actual “bullying” in the workplace. What about repetitive abusive conduct that interferes with an employee’s ability to perform their job, genuine abusive conduct, or an employer who allows an abusive environment directed towards one or more employees? Unfortunately, unless the employee is being harassed because of their gender, race, or other protected class membership, there is no legal remedy available to the victim of bullying at their place of employment.

That’s the bad news. The good news is that government agencies and legislatures have begun to recognize that workplace bullying is a problem that effects the well-being of many employees, subsequently diminishing the productivity of industry. The Washington State Department of Labor has provided document to help employees and employers alike, recognize, and fight workplace bullying. Here is a link to the document.

However, as stated in the document, there currently is no legal remedy to prevent, or compensate for, workplace bullying. But, help may soon be on the way. In the Washington legislature, House bill HB-2142 , and accompanying Senate bill, SB-6622, have been introduced. If passed into law, they would make workplace bullying unlawful. The House bill was amended to limit its effect only to State Agencies and Departments. Thus, it just protects state workers. The Senate bill still reads as applying to all employers and employees in the State.

We will have to wait and see to how far these bills get - will they make it the Governor’s desk?
Naturally, the employers are strongly lobbying against these bills for obvious reasons, so if you would like them to pass make sure you contact your State legislators. Let them know that you care about workplace bullying, and would like to see effective measures put in place to eliminate it.