5.5.11 Business Law

Guest Speakers from Attorney General's Office
Andrew -Torts/Employment Law
Gina -Labor Law

Andrew-
Title 7- Shouldn't have to trade your personal rights for a paycheck.

1. WHO- Employment Discrimination Law
Things you cannot change, gender, race, religion, (age, disability).
WA Law against discrimination/Fed. Title 7 -Disparate treatment/Disparate impact/Hostile work environment
a. Protected class
b. Adverse treatment- less favorably than non-protected class, or because of gender. Must be something other than an inconvenience. Must materially change terms and conditions or work.
c. Damages- Money or emotional distress.
Motion for Summary Judgment- Almost never direct evidence, usually circumstantial. Must prove prima facia case, inference of discrimination. Legitimate Non-Discriminatory Reason-Defense chance to show business related reason. Inference disappears unless employee can show pretext.
-"Our laws are not a workplace civility code."
-Must complain to EEOC, and receive right to sue

Age -40yrs+
Age discrimination and employment act- cannot sue state under.

Disability-
Am. with Disabilities Act- Accommodation process
Disability- Medically cognizable, exists as a matter of record, impacts one or more major life function & must be able to do job with or without accommodation.
Employer is NEVER required to give:
a. New boss
b. Displace existing employee
c. Remove essential function of position

2. WHAT- Employment Retaliation Law
Statutory Whistle Blower- state employees only
- Complains to State Auditors Office/Investigation/Employer takes action because of that/Adverse act/Damages
- Mistaken Identity - Employer believes you complained
- Providing information in investigation

1983 Claim
Employer/Individual, acting under state authority, violates federal rights, leading to damage.
1st Amend. Claims
Oppositional- Employee opposes employer practice
3rd Party Claims- Oppositional party's boyfriend fired, even though he did not participate.
Wrongful Discharge- Legislative or judicially protected activity/Adverse employment action

Cannot get:
-Job back

Can get:
-Wages (front or back wages)
-Special damages- Medical expenses, etc.
-Attorney's fees
-Nominal damages- $1, but if you get any award from jury you get attorney fees as matter of right.

3. OTHER- Workplace Related Violations
Statutory Wage loss claim-
Beach of Contract-
Outrage- Rare- Unwanted, horrible behavior, materially changes the nature of work.
Lilly Ledbetter Fair Pay Act- If your current pay is affected by previous discrimination; each paycheck is a new violation. Two year statute.



Gina-
Risk Management/Advice Giving - Personnel actions
Representing Employers in Grievance Arbitration

Unions
-Employment at Will vs. Termination for Cause
Forewarning, equal distribution of policy, investigation, and reasonable discipline.
-Improve wages, health benefits, working conditions.

Union Organization
-National Labor Relations Act
-Personnel System Reform Act RCW 41.80
-How are Unions formed and regulated?
Employees sign petition cards to join union. File, hold election (35% must vote), and certify. Employer has right to object to bargaining unit. May argue that signatures are forged, scope of unit does not share community of interest. Must also petition to de-certify.

Statutory Scheme
-RCW 41.56.100 and 41.56.030(4)
-Collective Bargaining- Limits direct dealing with employees.

Scope of items that must be bargained
-Permissive- Organizational structure, size of workforce, financial basis for layoff, direction and supervision.
-Mandatory- Wages, hours, terms and conditions of employment.

Decision vs. Effects of Decision
Even if decision is permissive, the effects of the decision must be bargained.

Duty to Bargain to Impasse
When neither party can come to agreement through continued discussion.

Elements of Good Faith
-Did employer comply with certain forms and procedures to avoid the impression of being perceived as acting in bad faith? Prompt meeting, work with bargaining team, direct dealing, counterproposals, negotiator's authority.
-What concessions were made?
-How accommodating was the employer?

Duty to supply info to Union- Request for Information
-To assist in coming to an agreement

Role of Strikes
-State employees not permitted to strike

Enforcement
-Grievance Resolution- Allegation of violation/misapplication/misinterpretation
Disciplinary vs. Contractual
Must exhaust grievance mediation before moving on to arbitration.
-Arbitration
Preparation- Meaning of contract provision, past practice, consistency, review negotiation history notes.
Research Arbitrators- similar issues heard and decision.

Unfair Labor Practice
-Refusal to bargain, unlawful discharge, discrimination for union activity, discouraging union involvement, etc.
-Must be timely- 6 months

Remedies
Reinstatement, wages, attorney fees.

NLRB National Labor Relations Board
-Can appeal to board
-Issue case decisions and advice memos
-PERC Public Employment Relations Commission relies on NLRB decisions
NLRB Arbitrators decisions published on website