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
Friday, May 6, 2011
5.4.11 Criminal & Family Law
Transition - Criminal to Family Law
Criminal
Collateral Consequences
Conviction for Domestic Violence Offense- Lose the ability to carry a firearm
Protection Order- Preponderance of the evidence, lose the ability to carry a firearm
- Disparity of power in relationship, can't have joint decisions making with regards to the kids.
State will press charges on victim's behalf if they choose not to press charges.
More domestic violence reported in low income areas- Immigration
If convicted they become deportable and will not be granted citizenship.
Possession of Marijuana- disqualifies you from any government funding (student loans, scholarships, etc.)
In warranted search where drugs, guns, etc. are found children will be put into foster care.
Dependency Action - Danger or neglect of children
(Civil action where state is a petitioner)
Parents often receive counseling, but these programs are usually the first cut due to budget issues.
State interest in children being raised well. Who decides what that means? and where does authority come from?
Rules of Family Law
Best interest of child
All property is fairly before the court for just and equitable distribution
Marriage
What gives government the right to determine who marries?
Early marriage- contract for property (woman)
Why does the government care?
-Taxes
-Health insurance
Loveless v. Virginia (1967)
State cannot prohibit African Americans from marrying someone of another race.
Commity- state to state respect, marriage in another state stands in this state.
WA No fault divorce state- Marriage must be "irretrievably broken"
Cooling off period- 90 days required after filing initial petition
Two method of dissolving a marriage
Legal Separation- debts incurred are separate, can be converted to dissolution after 6 months. Useful when religion does not allow divorce, and to maintain health insurance. (If kids go with Mom and Dad has the only insurance coverage, then the kids lose coverage too.)
Dissolution (Divorce)-
3 Ways to Get to Court on Family Law Matter
Dissolution (divorce)
Parentage Action - Paternity tests
Third-Party Action - Guardianship (Grandmother/Aunt/Etc. becomes legal guardian) Has become more difficult to have granted.
Prenuptials Agreement
Contract between two parties that shifts the law in this context
Legal in WA so long as they are fair, involve the full disclosure of resources, sufficient time for each individual to consider knowingly, and that everyone has opportunity to have counsel review.
As with all contracts- must be a meeting of the minds
If it seems to violate another law, the court would not uphold.
Annulment-
Void/Voidable- Distinction
Second Marriage (if already married) is VOID
If marriage is never consummated it is VOIDABLE
Nunc Pro Tunc- today it is deemed that at it's inception, this was the case. Order goes into effect on the day that the marriage took place.
Maritricious relationship (common law marriage)- looks so much like marriage that the state gives it validity
Petition for Parentage or Dissolution
Notice pleading - Temporary Orders - Prove service - Discovery (rogs, depos, formal docs-financials and income proof) - Motions - (ADR-Settlement Conference) - Discovery Cutoff - Trial - Discretionary Right to file an Appeal
Temporary Orders- Trial date may be 13month later, what happens in the meantime? Children must remain in state, insurance policies must be continued, bank accounts cannot be emptied, etc. ie. maintain the status quo
Enforcement of TO's
-Motion for Contempt usually only recourse RCW 721
If there is no remedial action that can be taken then there is no contempt.
Where curing the violation is impossible there can be no contempt.
For Contempt must find:
-They were aware the order existed
-Valid court order violated
-Compliance with court order is possible
If found the court has authority to issue compliance orders, sanctions, fines, and even jail time.
Order to Show Cause-
Preliminary showing sufficient for the Judge to issue an Order to Show Cause.
Summons to court to explain themselves and the violation before they may be found in contempt.
-Actual notice and actual service required (substantial not sufficient)
Emotional Component in Family Law Cases
Telling the Kids
Someone moves out
Coping with changes
Polarization of clients before trial
Personal life exposed
Ethical Questions
Decree of Dissolution
Custody Agreement/Child Support
Property Division
Spousal Maintenance - Read the Spousal Maintenance Debate for next class (in the class packet)
Do Over- bulk of family law is modification of orders (child support, parent plans, etc.)
Not allowed in all cases. Can become addictive to some people
Petition for Dissolution
-Marriage
-Location/Date
-Irreparable broken
Petition for Temporary Orders
-Custody
-Child support
Respond with:
-GAL Guardian ad Litem for child and also possibly Arnica
-Review hearing in 60 days with ability to hear issues de novo
-You can ask the court for anything as long as it is fair and equitable, and in best interest of child
-If temporary orders are allowed to stand until trial, it will be difficult to make changes at that time (custody of children, etc.).
Criminal
Collateral Consequences
Conviction for Domestic Violence Offense- Lose the ability to carry a firearm
Protection Order- Preponderance of the evidence, lose the ability to carry a firearm
- Disparity of power in relationship, can't have joint decisions making with regards to the kids.
State will press charges on victim's behalf if they choose not to press charges.
More domestic violence reported in low income areas- Immigration
If convicted they become deportable and will not be granted citizenship.
Possession of Marijuana- disqualifies you from any government funding (student loans, scholarships, etc.)
In warranted search where drugs, guns, etc. are found children will be put into foster care.
Dependency Action - Danger or neglect of children
(Civil action where state is a petitioner)
Parents often receive counseling, but these programs are usually the first cut due to budget issues.
State interest in children being raised well. Who decides what that means? and where does authority come from?
Rules of Family Law
Best interest of child
All property is fairly before the court for just and equitable distribution
Marriage
What gives government the right to determine who marries?
Early marriage- contract for property (woman)
Why does the government care?
-Taxes
-Health insurance
Loveless v. Virginia (1967)
State cannot prohibit African Americans from marrying someone of another race.
Commity- state to state respect, marriage in another state stands in this state.
WA No fault divorce state- Marriage must be "irretrievably broken"
Cooling off period- 90 days required after filing initial petition
Two method of dissolving a marriage
Legal Separation- debts incurred are separate, can be converted to dissolution after 6 months. Useful when religion does not allow divorce, and to maintain health insurance. (If kids go with Mom and Dad has the only insurance coverage, then the kids lose coverage too.)
Dissolution (Divorce)-
3 Ways to Get to Court on Family Law Matter
Dissolution (divorce)
Parentage Action - Paternity tests
Third-Party Action - Guardianship (Grandmother/Aunt/Etc. becomes legal guardian) Has become more difficult to have granted.
Prenuptials Agreement
Contract between two parties that shifts the law in this context
Legal in WA so long as they are fair, involve the full disclosure of resources, sufficient time for each individual to consider knowingly, and that everyone has opportunity to have counsel review.
As with all contracts- must be a meeting of the minds
If it seems to violate another law, the court would not uphold.
Annulment-
Void/Voidable- Distinction
Second Marriage (if already married) is VOID
If marriage is never consummated it is VOIDABLE
Nunc Pro Tunc- today it is deemed that at it's inception, this was the case. Order goes into effect on the day that the marriage took place.
Maritricious relationship (common law marriage)- looks so much like marriage that the state gives it validity
Petition for Parentage or Dissolution
Notice pleading - Temporary Orders - Prove service - Discovery (rogs, depos, formal docs-financials and income proof) - Motions - (ADR-Settlement Conference) - Discovery Cutoff - Trial - Discretionary Right to file an Appeal
Temporary Orders- Trial date may be 13month later, what happens in the meantime? Children must remain in state, insurance policies must be continued, bank accounts cannot be emptied, etc. ie. maintain the status quo
Enforcement of TO's
-Motion for Contempt usually only recourse RCW 721
If there is no remedial action that can be taken then there is no contempt.
Where curing the violation is impossible there can be no contempt.
For Contempt must find:
-They were aware the order existed
-Valid court order violated
-Compliance with court order is possible
If found the court has authority to issue compliance orders, sanctions, fines, and even jail time.
Order to Show Cause-
Preliminary showing sufficient for the Judge to issue an Order to Show Cause.
Summons to court to explain themselves and the violation before they may be found in contempt.
-Actual notice and actual service required (substantial not sufficient)
Emotional Component in Family Law Cases
Telling the Kids
Someone moves out
Coping with changes
Polarization of clients before trial
Personal life exposed
Ethical Questions
Decree of Dissolution
Custody Agreement/Child Support
Property Division
Spousal Maintenance - Read the Spousal Maintenance Debate for next class (in the class packet)
Do Over- bulk of family law is modification of orders (child support, parent plans, etc.)
Not allowed in all cases. Can become addictive to some people
Petition for Dissolution
-Marriage
-Location/Date
-Irreparable broken
Petition for Temporary Orders
-Custody
-Child support
Respond with:
-GAL Guardian ad Litem for child and also possibly Arnica
-Review hearing in 60 days with ability to hear issues de novo
-You can ask the court for anything as long as it is fair and equitable, and in best interest of child
-If temporary orders are allowed to stand until trial, it will be difficult to make changes at that time (custody of children, etc.).
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