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Avoid a Lawsuit When Making a Job Offer: 3 Pitfalls to Watch For

State: 
Pennsylvania

You’re ready to start the process of hiring a new employee. It’s an exciting prospect -- you’re welcoming someone new to your team who just might take a little bit of work off your plate.


What is the statute of limitations on wrongful termination in Utah, based on disability discrimination? ...

State: 
Utah
Question: 
What is the statute of limitations on wrongful termination in Utah, based on disability discrimination?
Answer: 

All employees in Utah are at will, which means that both employers and employees can end their employment relationship at any time for any reason. However, if a terminated employee feels that their termination was discriminatory in nature, Utah has state discrimination statutes that allow individuals to seek relief. To seek relief under state law, you must file a claim based upon discrimination with the state Anti-Discrimination and Labor Division of the Labor Commission. The statute of limitations for filing a claim with this agency is 180 days. If the state agency does not wish to pursue the claim on your behalf, you are then free to file a civil complaint against your employer. If you are successful, you may be able to receive reinstatement of your position and compensation for pain and suffering. However, you are not able to recover attorney’s fees if you win your civil action. For more information, visit the Utah Labor Commission, Anti-Discrimination Division, http://laborcommission.utah.gov/divisions/AntidiscriminationAndLabor/index.html.

To read more about wrongful termination in Utah, see
http://www.freelegalaid.com/nav/utah/employment-law/article/utah-wrongful-termination.

Attorney: 
elizabethcarlsen

Can an H1B person file bankrupcy?If a person on H1B is without a job for over a year,can his visa be cancelled? ...

State: 
Georgia
Question: 
Can an H1B person file bankrupcy?If a person on H1B is without a job for over a year,can his visa be cancelled?
Answer: 

A H1B visa is a visa category for individuals that perform services in a speciality occupation, services of exceptional merit and ability relating to a Department of Defense cooperative project, or services as a fashion model. Therefore, the granting of the visa is based upon the applicant being employed. The employer is responsible for paying for the individuals return trip home if the employment ends before the visa expires. Generally, the visa is granted for a three year period, but can be extended up to six years in special circumstances. For additional information about the H1B visa, see http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=73566811264a3210VgnVCM100000b92ca60aRCRD&vgnextchannel=73566811264a3210VgnVCM100000b92ca60aRCRD.

You do not need to be a United States citizen to file for bankruptcy. However, you do need to either own a business or property in the United states to be eligible for bankruptcy. The definition of what constitutes sufficient property varies by jurisdiction, and you should discuss your options with  a bankruptcy attorney to determine your bankruptcy eligibility. To learn more about the bankruptcy process, read http://www.freelegalaid.com/nav/georgia/personal-bankruptcy/article/filing-bankruptcy-georgia.

Attorney: 
elizabethcarlsen

If an employee has never had any disciplinary write ups and was suddenly fired due to what they say was "bad attitude", is this illegal in Missouri? ...

State: 
Missouri
Question: 
If an employee has never had any disciplinary write ups and was suddenly fired due to what they say was "bad attitude", is this illegal in Missouri?
Answer: 

Under Missouri law, either an employer or an employee can terminate the employment relationship without any reason as long as the two have not entered into an employment contract. This is called being an employee at will. However, an employer cannot fire an employee if the reason is based upon discrimination. Discrimination can be based upon age, religion, race or gender. If the fired employee feels as though they were discriminated against by being fired, they can file a complaint with the Missouri Commission on Human Rights. However, it is not illegal to fire someone just because the employer is unhappy with the employee’s performance.

 
For more information, visit the Missouri Department of Labor’s website,
http://labor.mo.gov/DLS/General/discharged.asp.

Attorney: 
elizabethcarlsen

Mt employer has filed charges against me that I accessed and made minor, non-damaging changes to schedules and a handful of customer accounts after I had been terminated. My access to the firms software had not been blocked after I was terminated. I ...

State: 
Virginia
Question: 
Mt employer has filed charges against me that I accessed and made minor, non-damaging changes to schedules and a handful of customer accounts after I had been terminated. My access to the firms software had not been blocked after I was terminated. I have cooperated fully with the police. My employer and I have reached a settlement and she has agreed to drop the charges. Will the police drop the charges if she asks them to? The case had not been prosecuted yet. The charge is unlawfully accessing the company software. The company did not lose any money and it was not done for personal gain. I was just angry that I was terminated
Answer: 

 


Your employer’s attitude will have an important bearing on the matter. The law, however, does not “represent” the victim. A prosecution acts on behalf of society. In your case, though, it’s not clear that you have been arrested, let alone charged. Usually, a prosecutor will decide pretty quickly (in less than a week) whether to prosecute. Unfortunately, Virginia is getting a reputation for pretty tough attitudes toward computer rimes. You can look at a list of possible Virginia state hacking crimes here… http://ellblog.com/wp-content/uploads/2012/04/Pinguelo-UVA%20JoLT%20Spring%202011.pdf (see page 68). And keep in mind, it’s just as likely you might be charged with something other than what the police described (“computer trespass” is a common prosecution tool in Virginia).


 


Having said all that, you appear to have more going for you, than against you, to avoid being prosecuted…


 


Two important facts are your current attitude and your apparent motive. You seem to have clearly satisfied your ex-employer that you weren’t trying to benefit financially. That’s become an important issue in pursuing hacking prosecutions. At the same time, you aren’t pretending to have been a White Hat, trying to show a security breach. This attitude not only impresses an ex-employer, who often wants to avoid extra publicity, but also can impress the police. Prosecutors who make the final decision will look at your settlement with the employer…and also weigh:


 


Five Factors In Prosecuting:


 


(a) any previous offenses alleged or charged against you; (b) the extent of the damage and your willingness to make restitution; (c) the amount of time the authorities had to invest in the case; (d) your perceived likelihood of repeating the offense (your age, demeanor, reputation, ex-employer’s statements); (e) the relative difficulty of proving the case in court if you should enter a “not guilty” plea.


 


The more these considerations work in your favor, the more likely you won’t be prosecuted.


 


One issue will be who the arresting authority was. Smaller cities often forego prosecutions. (http://www.lexisnexis.com/lawschool/study/understanding/pdf/WhiteCollarCh1.pdf @ p.6). We’ll cover the issue of who arrested you in a second. First, though…


 


If You Are Prosecuted…


 


You probably, at this point, have not gotten a lawyer yet. Because you were fired, you might be eligible for low-income legal aid. http://www.vlas.org/.This also raises a question, because up until now, I’ve been just assuming you were actually arrested and then charged. If you weren’t, then you may have rights to plead innocent, for several reasons unrelated to how you’ve been co-operating. Perhaps you weren’t read your rights or your own privacy rights were violated. You should get a lawyer regardless of whether they prosecute. One important factor may be the consequences of having an arrest on your record in what may be your chosen profession.


 


Police sometimes effectively withdraw an arrest by making an administrative decision. It can depend on whether and how they address white collar crime: if they have a white collar or business fraud investigations unit, it’s most likely your case has been sent to an assistant district attorney already for prosecution. They make the choice how to handle the case. If the DA still chooses not to prosecute, they might accomplish this in several ways. They may leave it as an open case. More likely, they will Nolle Prosse your case….meaning they make an administrative decision not to pursue it.


 


Other Concerns


 


No matter how your case may be discharged, you will have a record. Consider getting help to seal your record. Any later offense (true or not) will be looked at much more severely. There’s one last worry, but (from your question) it doesn’t seem likely.


 


Still, you need to know that not only does Virginia have laws against hacking, but federal laws (in the Computer Fraud and Access Act) could also have been triggered. To violate the CFAA, an individual must access a computer or information on a computer without permission. For example, there are ex-employee cases such as United States v. Nosal, 676 F.3d 854, 863 (9th Cir. 2012) (en banc); LVRC Holdings LLC v. Brekka, 581 F.3d 1127, 1134-35 (9th Cir. 2009). http://www.ca9.uscourts.gov/datastore/opinions/2009/09/15/07-17116.pdf.Any chance of federal prosecution is an entirely different set of possibilities when it comes to Nolle Prosse. If, for example, your ex-employer was a federal government contractor, she may be under an obligation to report your breach to a federal agency.


 

Attorney: 
DakotaLegal

"I just came from from my maternity leave and is breastfeeding. I need to pump at work and have no where to do it in private. My boss made me do it in the breakroom where i felt very uncomfortable. Can i sue? ...

State: 
California
Question: 
"I just came from from my maternity leave and is breastfeeding. I need to pump at work and have no where to do it in private. My boss made me do it in the breakroom where i felt very uncomfortable. Can i sue?
Answer: 

According to California Labor Code Section 1030, your employer must provide you with a break and provide a private place for you to pump. However, the law is unclear how private the room must be, and in some situations an empty break room with a lock on the door may be adequate. In addition, if several employees are breastfeeding at your work, you should be able to alternate schedules so that you will not have to pump in each other’s presence. If your employer is in violation of the statue, you should report the violation to the California Labor Commission. Your employer may then be subjected to a civil penalty of up to $100 for each violation.

Attorney: 
elizabethcarlsen

what is a memo of understanding and why is it used? ...

State: 
Rhode Island
Question: 
what is a memo of understanding and why is it used?
Answer: 

A memo of understanding is a document that describes an agreement between two or more parties. The purpose of such an agreement will depend on the situation in which it is used. Generally, a memo of understanding outlines the parties intended actions. A memo of understanding can be legally binding depending on the terms used in the contract. For example, a memo of understanding can be used as a contract between a union and a city regarding employment for the city’s employees. If you have questions regarding how a memo of understanding will impact your case, contact a Rhode Island attorney as soon as possible.

Attorney: 
elizabethcarlsen

Can my employer pay me two months salary in advance of a garnashee to give me time to file a bankruptsy? ...

State: 
Indiana
Question: 
Can my employer pay me two months salary in advance of a garnashee to give me time to file a bankruptsy?
Answer: 

 


The answer is yes, it can be done, but only “Maybe” can the money be kept completely out of the hands of garnishment over time. There are some risks involved, both to you and to your employer. There will also be a couple of interesting legal questions that might settle the matter: how does Indiana law define “salary” (is it property?) and is your type of job one that might normally involve receiving advances? Or is this more of a loan or advance to you? The point of these basic questions is to emphasize one general rule…a court will not usually act to protect any attempt to hide assets or income from a lawful order or statutory (under Indiana law) process.


 


The wildcard is the bankruptcy process itself. Let’s start with the general rules about garnishments in Indiana, then look at some affordable legal aid options, and end by a discussion about the effect of bankruptcy on other legal proceedings such as garnishment.


 


General Rules Of Garnishment


 


 


There are also types of garnishments that you need to especially wary of. A state garnishment for child support or to reimburse the state for costs of a child’s medical aid program raises special worries…in large part because the state has very little worry about extensive legal costs and may be able to perfect its garnishment almost immediately. The state also has more power to act quickly to declare a garnishment. This matter of “timing” is important to decide when the garnishment is valid or not… http://caselaw.findlaw .com/in-court-of-appeals/1171293.html.


 


If this is to be a garnishment order on real property (such as after a home foreclosure), then there are special rules protecting you from a premature garnishment order under Indian law: http://caselaw.findlaw.com/in-court-of-appeals/1309415.html. If you can, challenge the garnishment.


 


Try To Find Some Affordable Legal Advice


 


 


Don’t underestimate the power of self-help in this problem. You may have an advantage, by not having to justify some uncertainties such as what Indiana law says about salary, loans, and garnishment. On the other hand, a lawyer has important ethical considerations, and is very unlikely to want to help (even indirectly) in skirting the law of garnishments. To look into how to take legal matters into your own hands, consider these resources… http://www.in.gov/judiciary/selfservice/.


 


You can try Indiana legal aid, based on your income: http://www.indianalegalservices .org/. The Indiana bar association has some free assistance, too: http://www.inbar. org/ISBALinks/Committees/ProBono/tabid/149/Default.aspx. Some Indiana law schools also help the general public, such as the Mauer law school… http://www.law. indiana.edu/students/clinic/elmore.shtml.


 


The Role of Bankruptcy: The “90 Day” Rule


 


When you receive the garnishment and when you file for bankruptcy are going to be essential.


 


What you may have going for you is the power of a bankruptcy filing to stop all other state actions. From your question, it seems there is not yet a garnishment order. That helps. If you file for bankruptcy before any garnishment order is actually filed, this makes claims filed before the bankruptcy more likely to be paid (and by inference, a post-filing garnishment is weaker). Still, just because you file for bankruptcy does not mean all prior debts will be ignored…this is especially true of there’s an argument that any transfers were made in anticipation of hiding or sheltering money. You’ll be producing bank records, so if the “advance” you get form the employer is deposited into a bank account, or shows as regular income on wage statements you submit in your filing, then creditors will see it. Here’s a case describing this process, and where a garnishment was received 90 days before filing: http://caselaw.findlaw. com/us-7th-circuit/1118816.html.


 


But it’s a harder question in this case, since it’s not money that you gotten from selling something, but unearned money you have received. And as the case just mentioned emphasizes, federal law may decide about timing, but Indiana state law will settle whether the money you received “in advance” is personal property: “Under Indiana law a notice of garnishment not only prevents the debtor from withdrawing the funds in his bank account but also gives the judgment creditor who procured the notice a lien against the funds up to the amount of the judgment.”


 

Attorney: 
DakotaLegal

Hello. Thank you for this service. I was inquiring about Unemployment Insurance claims. I was wrongfully terminated and accused of something that never occured. I was eligable and then ineligable for UI benefits, yet never received cash assistance or ...

State: 
Arizona
Question: 
Hello. Thank you for this service. I was inquiring about Unemployment Insurance claims. I was wrongfully terminated and accused of something that never occured. I was eligable and then ineligable for UI benefits, yet never received cash assistance or UI of any type. Now I am billed from a different state for an amount with accrueing interest being added for an amount of money I never received. I have already let the offices know I never received this, and even met with a federal judge to clarify this matter. They continue to harass me with this bill. What can I do to stop this insanity and prevent them from continuing to harass me with this bill?
Answer: 

  


There's one thing I often suggest to people who are receiving a bill, for goods or benefits they never received, or never even asked for. Initially, treat the bill as though it’s justified. I’m in no way saying you simply accept the bill or make any compromising statements about “owing” anything. But you can get the agency to explain the details of the bill to see what proof they have of the debt. This includes getting: a written summary of the total sum (supposedly) owed, any interest or penalties, the date the account opened and closed, a statement of all payments supposedly received by you, and any addresses or prior communication sent from them to you.


 


There are two reasons for this approach. First, in an age of identity theft, you need to see if your social security numbers or personal identity has been compromised. Second, state agencies are under special obligations to report all relevant data to a (supposed) consumer. By forcing the state agency to review the details of the claim, they often, with a little prompting or challenge, catch their own mistake. Most states also have an “Ombudsman” program, to review state procedures: your own state might be able to help identify a counterpart n the other state: http://www.azgovernor.gov/ Administration/ Gov_Staff.asp.


 


Be certain to find out if the state has farmed out their ‘debt collection’ function. As we’ll discuss, this passing of debt collection to a third parity may give you more rights to sue for damages, if the collection was wrongfully conducted by a private (as opposed to a state agency) company.


 


I also wonder if you had been injured at work, but instead of receiving any state comp payments, you instead received payments from an insurer? This is one reason some claims are disputed for repayment, because the insurer may have asked for reimbursal from the state fund…and the state may in turn go after you. Here’s a case where that happened… http ://caselaw.findlaw.com/az-court-of-appeals/1489291.html.


 


From here, I’m going to assume you have made this demand on the state agency for all the records. There are also other things you can do to try and check this process. Because a false state benefits debt collection has serious implications for your credit, and could even be viewed as a criminal matter, your also have legal rights that are being violated.


 


Affordable Legal Help


 


If you cannot afford full legal fees, there are some good alternatives. You can contact Arizona legal aid…http://www.sazlegalaid.org/contact.html. If you are not eligible for legal aid, or you might be too far from their offices, try the Arizona Pro Bono program: http://www.azbar.org/professionaldevelopment/careerandpracticeresourcecenter/volunteeropportunities/probonocommunityvolunteeropportunities.


 


Contesting Unemployment “Debt” In Court


 


Again depending on who is trying to collect the debt, you might be able to contest the alleged debt in court. Depending on the size of the debt, you might be able to go into small claims court. In reality, however, most states have passed laws that limit taking a dispute against a state agency into court. It might be useful to take a look at Arizona overpayment rules, for a comparison with the other state: § 23-1068(B) (1995), Ariz.Rev.Stat. Ann. Here’s an Arizona case, talking about how aggressively a state can pursue unemployment benefits… http:// caselaw.findlaw.com/az-court-of-appeals/1419451.html. You can find the other state’s rules, (under the State and local Rules section) here… http://www. usa.gov/Topics/Reference-Shelf/Laws.shtml.

Attorney: 
DakotaLegal

a friend of mines supervisor persued a sexual relationship with my friend, after declining the advances eventually my friend entered into the relationship. the supervisor promised to leave their spouse, but after a year my friend broke off the affai ...

State: 
Arizona
Question: 
a friend of mines supervisor persued a sexual relationship with my friend, after declining the advances eventually my friend entered into the relationship. the supervisor promised to leave their spouse, but after a year my friend broke off the affair. Now they are facing daily harrassment from their supervisor including a threat of termination if they complain. What should my friend do?
Answer: 

 


There’s a range of things, all of which may help your friend, in ways that are often important, but in very different ways. The big question may turn out to be “What does your friend want to accomplish?” If your friend wants to keep the job, and simply stop the harassment, there’s a very direct way. A worker can seek an injunction under Arizona law: http://www.azleg.state.az.us /ars/12/01810.htm. Then, “good luck” to the harassing supervisor, in trying to fire the worker. If the worker believes the supervisor should be fired, or thinks the company owes a duty to not only stop the harassment, but also pay for it…then there are other options. In general, a worker can look at addressing harassment (and this case involves several possible types of harassment) through 1. confrontation, 2. mediation, 3. human rights claim, or 4. some form of litigation (lawsuit).


 


I’m not going to talk much about confronting the supervisor. This is something that should only be done once a worker has (preferably) looked over their three more legal options, or just decided they don’t care about keeping the job. Before discussing things such as evidence and rights, let’s look at some affordable legal options in Arizona.


 


Finding Affordable Legal Advice


 


Depending on the size, reputation, and status of the company, this worker may have an attractive harassment suit. But: there is a difference between suing for harassment at (for example) a small one-stop boutique florist’s and, for example, against a chain of tire stores with a thousand outlets. Choosing the “kind” of lawyer and lawyer fee will probably reflect the size of the company and the wealth of the supervisor.


 


Finding a lawyer who has special skill in Arizona harassment cases can do two good things: (1) help this worker make a decision whether to take any action and (2) get a free test of how good (or weak) a case they have. Using the Arizona bar referral system (under the “Find a Lawyer” section), http://www.azbar.org/, a worker can get a free consultation with a lawyer who might take the case on contingency. If no lawyer is at all interested in a contingency case, it does not mean it’s not a good case. It may only mean that a really expensive lawyer does not think it’s worth their time. Some new lawyers will take such a case, which a more established/expensive lawyer would not. There is also a list of possibly free legal aid lawyers, here: http://www.azbar .org/professionaldevelopment/careerandpracticeresourcecenter/volunteeropportunities/probonocommunityvolunteeropportunities.


 


Evidence of Harassment


 


When a worker enters into a romantic or intimate relationship with a supervisor, willingly, there will later be issues of pressure. Here’s just such a case in Arizona, where a prior office romance included a personal loan. After the relationship ended, the supervisor crossed the work/personal line in trying to reclaim the loan from the worker: http://caselaw.findlaw.com/az-court-of-appeals/1424750.html. This kind of workplace harassment or pressure seems to be part of what you are suggesting, by describing how the advances were “declined.” But the relationship also lasted a year, implying consent. The point is that there will be a need for strong evidence of illegal harassment, based on impermissible grounds…a soured past office romance does not mean, for example, that a worker is not a crummy employee, deserving to be fired.


 


Here’s an Arizona case, describing an allegedly illegal pattern of harassment: http:// caselaw.findlaw.com/az-supreme-court/1213845.html. In that case, other workers also complained of the supervisor’s prior actions, and the company itself had reason to know of the harassment. This meant a law suit (the court describes the grounds there, under what’s called tort theory) was against the supervisor, the company, and interestingly, even the supervisor’s wife.


 


Does the company have a written policy on workplace harassment? Here’s a case showing how important a written company policy can be to a court’s analysis … http://caselaw.findlaw .com/us-11th-circuit/1082332.html.


 


Arizona State Administrative Procedures


 


Some workers choose not to go into a court…perhaps because of the lack of evidence, or publicity. An alternative in these court cases is to contact Arizona’s worker’s rights commission. http://www.workplace fairness.org/agencies_AZ#1. All in all, the longer the worker waits, the weaker the case may become.

Attorney: 
DakotaLegal
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