Answers To Legal Assistant Employment Application Questions

Businesses and law groups which provide legal services to their consumers hire paralegal associates and trainees who support them in their legal activity. Every company requirements a very good and knowledgeable worker for itself and it’s the exact same in case of legal groups, they require intelligent paralegals that have thorough knowledge about legal proceedings. Just before the official hiring and recruitment in the paralegals, the corporations or groups take a screening test and an interview to scan the candidates. This technique helps to identify the correct person from the group who has being selected. A general legal questionnaire is prepared by staff which includes questions from the respective field. Sometimes paralegal job interview questions are really tricky and simple fact oriented where a person has to give correct references for his answers. Paralegal interview isn’t as simple as the favorite task interviews are as it requires the base of details and their appropriate legal points in their support.

Generally, most on the legal corporations look for a great legal assistant so they don’t ask about legal procedures and related laws like “what is your knowledge about formal legal proceedings? This a weird type of question if asked from a legal assistant inside a paralegal interview. The main focus is for the candidate’s easy skill and search abilities, whether a candidate can probe out detailed analysis about a legal scenario. Some legal corporations ask for strengths and weaknesses of an individual who is searching for an employment in your paralegal assistant. These sorts of questions are irrelevant for the job but they supply an initiating factor for a formal session or sometime it may possibly start with asking a person’s name. Generally, candidates who have completed their paralegal training make it through simply because they have rich knowledge about a number of legal aspects. And after the paralegal job interview questions arrive to civil matters, they commonly ask queries related to intellectual home rights and real estate laws.

Paralegal interview questions like “why must we take you like a paralegal? This kind of questions are very confusing and put a candidate inside a quandary case because a single wrong word can make the case worse. In this respect a correct resolution based answer is required which can justify the question. Sometimes the paralegal job interview questions may be from employer employee relation; just the basic rules nothing in depth is required. If somebody has already got some experience like a paralegal then question could be asked about his work like his branch of working, documentation program is incredibly important. If any question is related to past jobs experience then the answer need to be said inside a professional way simply because this will help somebody in elevating his profile. There are lots of open shut questions which have been asked like “Describe 1 of your worst experiences”. Somebody has to react professionally and ought to respond having a precise answer rather than indulging in details. Inside a paralegal interview, they may possibly ask about a person’s confidence level or his motivation techniques. Mainly the questions asked are from professional background of a person for instance his past experiences.

Philosophy Of Pre-employment Document Verification – ‘trust, But Verify’

Document verification is the process of ensuring that documents presented by prospective employees are genuine and that the holder is the rightful owner. It is an integral part of the pre-employment screening process. Back Check’s philosophy for safe hiring is to ‘Trust, But Verify’. Unsavory candidates will often conceal their past criminal or employment histories, which can lead companies to make poor hiring decisions.

Why documents verification is so much important in a current scenario? Because hiring new employees is a costly as well as time consuming process in such fast pace business and corporate environment. As the recession in past five years have taken all the opportunities far away from the job seeking applicants, the inflation in document forgery and exaggeration has increased.

Every day we hear about companies employing staff who turn out NOT to be whom they say they are. A comprehensive research shows that around 1 in 5 job applicants falsify their resume or documents to some degree. Estimates show that the cost of a bad hire and replacement is around 150% of the salary. Percentage of forged academic documents has increased over the years creating a huge gap of trust between employers and the candidates.

Document Verification Is Effective

Documentation serves as a basis for pinpointing areas where employees are performing well and those that need improvement, communicating specific feedback to employees, reaching more accurate decisions, and defending actions if litigation or other challenges arise. There is an expectation by employees, other management, hearing officers, investigators, judges, and juries that the employer will have documentation in place to support employment decisions.

Primary source documents verification of the educational documents is very necessary as it will let you know that the documents are forged or not. It inquires about the dates of degree started and completion, attendance during the educational period, performance and character etc.

Checking criminal records is also important as part of the process of document verification. You’ll need to protect your business from liability by doing criminal background checks on applicants who will be your prospective employees in future to avoid employee fraud/theft.

It is important that pre-employment document verification processes are integrated within every employer’s wider pre-employment screening strategy. The fastest, reliable and yet economical source for document verification is independent background check companies. As they are well conversant with all the procedures regarding background screening procedures and they have all the strong links to make sure the investigation is true, targeted and accurate.

Due to security concerns and the high cost of recruiting, many companies are using pre-employment screeners to background prospective hires which minimize the huge risks of business/customer loss. In addition to checking for previous criminal activity, these firms also verify your educational and employment information. The majority of these screening companies use your job application, not your resume, to check your credentials.

The Advantages And Pitfalls Of Self Employment

Thousands make the plunge only a few can swim.
Every day, thousands of people across the United States decide to make the plunge into self-employment. There are as many reasons why people become convinced that going into business is right for them as there are occupations. Even though the failure rate is extremely high, self-employment continues to be sought after as an American dream.
The following is some reasons why you might be prompted to start your own business as well as some pitfalls to consider.

You Have Come Up With A Super Business Idea
Sometimes what seems like a good business idea to you may not be so sound when put into practice. Unless you have a revolutionary new invention or a new product or service, or an original idea or solution that deals with an everyday problem you probably will be repeating what thousands have done before you. Something to consider doing:

• Filling a gap in the market that big business can’t or won’t concentrate on
• Stay within a field of business you are already familiar with
• Follow a passion by turning an interest or hobby into a business

No matter what your great idea is, you need to be sure that it is not only a viable business venture but it is something you will also be comfortable with.

Before doing anything be honest and ask yourself these Questions
• Why would anyone want to do business with me?
• Do I have enough relevant experience and expertise?
• Is there a need for my product or service?
• How will I reach out or market to my customer base?
• Are there others in the same business and who will be my main competitors?
• What sets my product or service apart from similar offerings?
• Do I have or can I get enough funding?

Remember, what can go wrong probably will?

The tried and tested business
Some self-employed people choose to stay within tried and proven businesses such as buying a turn-key package an established business or licensing rights to a franchise – which may be higher cost at first but carry fewer risks than developing your own idea.

• More attractive for investors.
• A market for the product or service has a track record.
• A proven business plan and marketing plan is in place.
• Training and consulting are provided.
• Problems have already been discovered and ironed out.
• Financial support is included in some franchises.

• Some businesses for sale may be because they are experiencing difficulties. Look into the background of the business and make sure you fully understand the reasons for selling. You don’t want to purchase a white elephant that will need more investment than it’s worth. You also don’t want to have to overcome a negative management reputation.
• Buying the rights to a franchise or a license to sell a particular product or service not only ties you to the product or service but may be expensive also. With a franchise, there is a franchise conduct that depicts a particular way to run the business that you have to stick with.

A business opportunity
Sometimes the opportunity of owning your own business comes with or without warning. You may be offered the opportunity to buy out your employer, or take over a family business.

Opportunities like these may require lots of personal commitment and you may need to put your own money on the line. Just because you are familiar with the business, you still need to carefully examine the business to make sure it is worth becoming involved in.

• All aspects of the business including a marketing plan should already be active.
• An established customers base , reliable revenue, an established name to capitalize and build on, and a list of useful contacts.
• You probably already know a lot about the product or service and have a good understanding of the business.


• You may be taking on a failing business. Ask if there are any problems with the business, and if so, how can you best solve them?
• Stepping into your employer’s shoes does not mean you automatically retain his/her support services. Remember, you are the responsible party. It’s up to you to provide everything such as accounting, staff management, suppliers, business location and payroll.

This has only been a sampling of business ideas and their possibilities. Stay focused, be diligent and most of all proceed with caution.

The Significance Of Hiring A Veteran Employment Lawyer

Determined and knowledgeable people can attain great success in the busy place such as New York City if they definitely work hard. To be in this city means needing to confront a tough competition; but for nearly all people, it only drives them to work much harder. On the other hand, day by day, legal battles are occurring in the Big Apple. One of these lawsuits incorporate employment matters. In scenarios like this, it is actually necessary to employ an employment lawyer with a good reputation.

Most companies are backed up by a group of lawyers who are eager to battle staff with employment-related issues at court. Under the law, nevertheless, it is also the right of workers to defend themselves. Don’t be afraid to approach employment attorneys NYC if you feel your right are stepped on by your employers. When disputes occur, legal actions must be taken instantly to be able to increase winning potential in your legal case.

Many people think that you will simply require employment attorneys when legal action has been submitted, but this isn’t true at all. Remember that submitting a lawsuit won’t just get you spend a lot of money but also consume your time and it is emotionally-draining as well. Therefore, it is greater to negotiate with your employer in the court first before both parties really file for a lawsuit. The NYC employment lawyer will assist you throughout the entire ordeal, to ensure that the outcome of the negotiation would benefit you.

If litigation is already unavoidable, then ready yourself and make sure that an employment attorney is there to assist you. It is a truth that employment laws are complicated and they change at all times. If you make a mistake with your moves, then you’ll truly obtain more problems as there are lots of legal loopholes and also traps you will encounter. Because of this, just hire an attorney who has specializations in employment and civil litigation law. It is best to choose a skilled New York employment lawyer with a reputation of assisting clients acquire favorable results.

Small businesses and non-profit organizations generally employ the services of NYC employment attorneys due to their extensive expertise on employment laws. With the assistance of these professionals, business people can follow properly in all New YorkÂ’s policies for employment. Regardless of whether if it is a large or small firm, security standards and duties should be maintained accordingly by employers. Firms can also get employment attorneys to draft company policies. By doing this, it will coincide with the employment laws and regulations.

Perhaps, you don’t know where to get started. The very good news is, you can call employment lawyers NYC for appointment. Just inform them what your own situation is, and they are going to assist you sort out your legal problems. An employment attorney will definitely help check out the details of your case. Aside from that, he will determine the ultimate way to deal with the case in order to meet your standards.

The Characteristics Of A Trusted Employment Attorney

It is of utmost importance to get the services of an employment attorney when one is caught in an employment-related litigations since dealing this alone is a nightmare. With regards to this matter, not all lawyers can help you out. Thus, one must be meticulous in choosing a NYC employment attorney or else, things will just come to worse.

If it’s your very first time to find employment attorneys, make sure you take a good look at their years of experience and knowledge in taking care of employment-related cases. Additionally, ask them if they have experience dealing with similar cases like yours. With these qualities, one can make certain that probabilities in losing the case is lesser because they have experienced downfalls before and formulated solutions to stop those overviewed mistakes from happening again.

It’s just common that state and federal laws will face modifications. Due to this, individuals must opt for employment lawyers NYC who kept themselves updated with the most recent amendments in employment laws. Since litigations and disputes about employment problems work on the technical side, it will be a drawback to the lawyer if they don’t know the recent changes applied in the law.

Attitude is yet another thing that a complainant should consider in selecting an employment lawyer. During the initial meeting, lawyers usually offer cost-free consultation. This is a big thing because it simply implies that the lawyer is concerned about their clients. You can easily tell that the employment attorney NYC you’ve hired is uninterested because of the lack of passion and professionalism. It is crucial for a lawyer to be both skillful and have a creative mind. With these characteristics combined, there is a greater possibility that they’ll be more proficient in taking care of your case.

Go ahead and make inquiries concerning your case whenever you meet up with the employment lawyers. Well, it’s best to hear the legal explanations from a legal expert for you to comprehend it better. Placing their legal advices in writing has long been part of the practices of seasoned NYC employment lawyers. This written legal advice pinpoints the strengths and weaknesses of your case. This way, an employee will come ready in case his attention is called for a disciplinary meeting.

Most of the time, the more complicated you case is, the longer it will take for it to be resolved, and at the same time you’ll get to spend more. It is very important to make certain that the employment lawyer is transparent with his or her fee structure. You can opt for an hourly payment or through a contingency arrangement. Trial proceedings usually take too much time to complete, so it would be best to select a combination of contingency and hourly payment. Through this, you can keep up with the rates of the finest New York employment lawyer.

As such, when you employ employment attorneys, ensure that the firm has a Lexcel or ISO 9001 accreditation. The accreditation is only provided to companies that have met the highest standards in offering the perfect legal services.

Employment And Severance Scenarios

In prior articles I have alluded to the fact that many people think being an entertainment lawyer is a romantic existence. Yet the brass-tacks principles of employment law and the harshness of employee severance and termination scenarios often overtake that romanticism. Being an entertainment lawyer entails a lot more than hanging-out with talent backstage or on the tour bus. In prior articles I have also alluded to the fact that artists often have “day jobs” providing their paying employment to subsidize their artistic ventures. As a New York entertainment attorney who grew up in a show business family in the midst of performers, I’m used to this. Most of these artists intend to abandon these day jobs, with or without an employment severance package, once they get signed to a development deal, record contract, or otherwise “make it”. But what happens in the meantime? What if an artist works for a company that intends to jettison him or her as an employee, rather than the other way around? What if the company counts on using an employment severance package as a hedge against risk of an after-occurring wrongful-termination lawsuit?

These past few years have comprised a particularly bad time in terms of employee and contractor lay-offs and firings. As a working entertainment lawyer in New York I have seen many artists and others downscale and change jobs in recent years. Many situations which used to prompt a severance package to materialize in the prior decade, do not do so any longer. The fact of the matter is, a large proportion of employees and other workers misplay the handling of their job exit, if and when it occurs in the employment law context. In the interests of employee and worker empowerment before the blue-ink dries on the release and settlement agreement or other severance documents, this article follows. Though written by me as a media and entertainment attorney working with entertainers, the same principles apply to employment work in other industries and sectors.

I suppose that the first rule of employee empowerment is fairly pedestrian-sounding, but vitally important. An employee must read and review every employment document pertaining to his or her job and career, carefully – including the following disclaimer. The employee should secure counsel promptly, if he or she sees any legal issue looming on the horizon which may affect the employee’s career or rights – including legal issues relating to employment and severance packages. As an entertainment lawyer friend and entertainment law professor of mine used to say, “every deal is different”. What applies in one employment context may not apply to the next one. The employee must make sure that he or she seeks individualized legal advice as to any important matter pertaining to the employee’s career or rights generally. It is not uncommon that a soon-to-be-terminated worker starts calling attorneys as soon as offered an employment severance package.

There are attorneys, entertainment attorneys and otherwise, who routinely handle “employee-side” legal matters. A number of attorneys may be able to do so affordably for even a modestly-compensated employee, in the context of a severance proposal or otherwise. An employee-side lawyer should be accustomed to representing people who have limited financial resources, and this is a particularly-familiar fact-pattern for an entertainment lawyer handling artist-side work. There are parallels. And, assuming that one is not a lawyer, one should no sooner handle one’s own legal work than handle one’s own dental or medical needs oneself. The severance and employee-exit scenario most often entails some analysis of employment legal issues governing the exit. Given the economic realities faced by those in the artistic world, all entertainment lawyers need to be familiar with these employment legal issues.

The employee should remember that most employers themselves have in-house or outside attorneys. Indeed, the employment, severance, settlement, release, and exit documents are most often drafted by these attorneys. They may be entertainment attorneys, employment attorneys, litigators, or generalists. However monikered, often an employee’s securing of his or her own counsel is the only way to equilibrate the proverbial scales of justice in a severance or other job-related scenario. Exploitative and even abusive treatment of employees is unfortunately rampant in the employment law context, including at the time of worker exit – particularly in highly-competitive cities like New York and Los Angeles, and in highly-competitive industries like entertainment and media as any entertainment attorney will tell you. The good works and lessons taught by historical pro-labor figures like Samuel Gompers should not go for naught. The employee should not look to the employer, or the vicissitudes of chance, to protect the employee and the employee’s own legal rights in the workplace or in the context of a severance or other exit from employment. Rather, the employee should empower himself or herself, and should not be inhibited in seeking out the advice and opinions of those professionals who handle employee-side legal work for a living.

On to the substance and detail.

The lead singer of a rock band about to step onto a live television set is furnished a “release” for signature five minutes before scheduled air time. The entertainment lawyer representing the singer might cry, “No!”. While this could sound like an entertainment attorney observation meant only for the golden days of the Ed Sullivan Show, the rule of not signing on-the-spot is true in the employment context and across all other subject-matter areas and sectors as well. Like the artist, the employee, too, should never sign any document, employment document, severance document, or otherwise, on-the-spot. The employee should not be bullied into signing on the spot, as a product of fear, or the purposeful manipulation of same by oppressive employers or ex-employers. There are very few situations in life where one truly must sign a document on-the-spot, and an employment-related signature is usually not one of them. One of the only valid such situations that I can recall from my own experience is when an attorney must sign a stipulation on-the-spot before a judge, as the only way to preserve the attorney’s client’s rights. This will not likely be a situation that one will ever have to encounter as an employee or terminated employee in an employment severance context or otherwise. Employers typically offer severance to terminated workers out of fear of being sued by them, meaning that the worker often has more leverage in the employment context than he or she initially thinks.

It is astounding, though, as to how many people make this mistake of “on-the-spot” signing, time and time again, in the entertainment law context, and in the employment severance context and in the workplace and business-world generally – even if these signatories know better. The employee should trust his or her own instincts. If it smells bad, it is bad. If anyone, be it a car salesman, a manager or talent agent you’ve never heard of before, or, yes, an employer offering an employment severance package while terminating your employee services, waves a document at you as panaceatic – you should be suspect. The entertainment attorney’s first instinct is that a document waved at you for on-the-spot signing is not worth to you the paper it is printed on. In the employment context, if the employer presents the employee with a severance document or other document and tries to pressure the employee to sign that document on-the-spot, the instinctual reaction should be similar. The odds are better than 99% that the employer is trying to take advantage of the employee in that latter case – and trying to force the employee to thoughtlessly relinquish in haste valid and enforceable legal rights that the employee already and otherwise possesses.

By comparison, what does an entertainment attorney do, when given or forwarded a document intended for signature in the context of a rights deal, for example? The entertainment lawyer will typically indicate to the party who proffers the document for signature: “Thank you – my client and I will review and respond to this document”. Period. If the “proffering” party then says: “Hey entertainment lawyer, aren’t you or your client going to sign it now?”, the entertainment attorney answers with a flat “No”. Although it is possible that the proffering party will thereafter withdraw whatever offer the document contains and take it permanently off-the-table, they typically won’t. And if they do, it probably was not an offer worth taking anyway. This analysis also applies to written employment severance packages, releases, and settlement agreements, just as it does to talent agreements, agent and manager agreements, car purchase agreements, and just about any other form of proposed contract that one might ever be offered. Again, this rule is by no means entertainment attorney-specific, but instead is generalizable to the employment context and across all sectors and industries.

The protocols of professionalism create an expectation that all parties should be given a reasonable opportunity to review a document, including a proposed employment severance document, prior to either: (1) signing it as written (an extremely unlikely occurrence, by the way, if a good attorney reviews it for the employee); or else (2) responding to the proposed document with a fax, letter, red-line comparison draft, or mark-up indicating the receiving party’s proposed changes. This would normally be the way entertainment attorneys would interact with and between each other on a proposed license agreement, for example. The two entertainment lawyers would expect careful reading and deliberation on either end. If a proffering employer-party in the severance context, however, instead threatens to withdraw the document “since it wasn’t signed on-the-spot”, then they are just being ridiculous and overbearing. The odds are, again, better than 99% that their “non-negotiable” document would have been a legal disaster for the employee to sign as initially proposed. Again, this observation applies to employment severance packages, and most all other forms of proposed draft agreements in most all contexts other than employment, too.

Some employers in the media and entertainment industry context and otherwise even have the unmitigated gall these days to ask employees to prospectively waive their right to a jury trial in the context of so-called “non-negotiable” employment agreements including severance or other exit agreements, as but one type of egregious example of the foregoing. It is jungle out there. If one is asked to sign an employment severance agreement with jury trial waiver or other exit document on-the-spot, it is entirely fair and within one’s rights to say that “I will need to review this document with my attorney”, or “I don’t sign documents of a legal nature without attorney review”. And, if the proffering party disputes the employee’s right to legal representation, perhaps this is someone that the employee doesn’t want to accommodate anyway, on principle. This country’s entire legal history was predicated, in substantial part, on the rights of the individual, and the individual’s right to counsel. The framers of the Constitution worked hard. It would be a mistake to let them down now.

The next rule is a corollary to the prohibition on “on-the-spot” signing: The employee should never believe the employer, when the employer offers a “standard” form of employment severance agreement or otherwise. An entertainment attorney will tell you that “standard” is the biggest lie in the entertainment industry. It should be considered comparably fallacious in the employment context. If the employee wants to empower himself or herself in the workplace and in the commercial world, what the employee needs to do is repeat the following phrase repeatedly, like a mantra: “There is no such thing as a ‘standard form’. There is no such thing as a ‘standard form'”. Because, there isn’t, as any entertainment lawyer should tell you.

Rather, “standard form”, after an entertainment attorney on the receiving end translates it, just means “get over on you”. Similarly, a “standard form” employment severance document is synonymous for “oppressive and one-sided form that takes advantage of the employee”. The employee should remember that the draftsperson of a so-called “standard form” is probably a fairly predatory-minded employer-side lawyer handling the company’s employment severance protocols en masse who is under absolutely no obligation to protect – or indeed even acknowledge or accommodate – the employee’s interests. Indeed, the opposite is true. The employer-counsel’s professional obligation as a member of the Bar handling the employer-side severance work is to be a zealous advocate of only his or her own client’s interests – that is, the employer’s interests only. If the employee signs an employment severance document because the other side tells the employee it is a “standard” or “non-negotiable” form, then the employee might as well be walking off the roof of the proverbial building just because the employee was told to do it. The employee should not trust “standard forms” in the employment severance context or otherwise, or those employers who purport to furnish them. Again, this may be an entertainment attorney observation, but it applies to all workplaces and other contracting situations as well.

The employee should make sure to have retained copies of every single scrap of paper pertaining to his or her employment relationship with any company, up to and including the time of the severance communications. The employee should not trust or rely upon the employer to give the employee copies of – or even access to – those employment documents and the employee’s human resources file, if and when the employee’s work honeymoon period with the employer ends, or if and when the employee’s services are, or are about to be, terminated in a severance or other context. Remember that the Japanese model of “employment for life”, and the antiquarian U.S. model of the gold watch after 40 years of service, just simply do not apply anymore. Severance and parachutes – and these days the absence of them too – often replace the old model of dutiful loyalty.

Our United States work-force is more mobile and transient than it ever has been. The workforce I see as an entertainment attorney practicing in New York, is most decidedly such a miasma. People change jobs all the time, with or without accompanying employment severance packages and exit agreements. The motility of the workforce, by the way, greatly empowers employees to seek out their market-value salary and non-abusive working conditions – so it is not necessarily a bad thing. As a practical matter, in New York or elsewhere, entertainment industry or otherwise, the employee should work with the assumption that the employee will one day have to depart every job ever taken with or without severance, no matter how rosy the employment picture of any job looks initially. If the employee stays at that job until retirement, more power to the employee. But the employee should realize that the statistics indicate this would be an extremely unlikely occurrence in this day and age given current job-market employment conditions.

The employee should make sure that, prior to any severance scenario, his or her exhaustive, fully-complete “job file” is kept at the employee’s home – not in an office desk drawer, not in the company’s file cabinet – not anywhere near the employment workplace. It is astonishing as to how many employees fail to do this simple thing. The employee should remember that the old-fashioned paradigm of “two weeks advance notice and severance” is rapidly becoming a vestige of the past, particularly in the media employment context as I see it from my vantage-point as an entertainment attorney. Many media, software, and other types of employers will now think nothing of having an employee escorted out of the workplace by a human resources rep, or even by security personnel, the day and even moment the employee is terminated. Usually when this happens, the employee is not smiling and holding a severance check when led out of the building towards the parking lot or subway.

Why is this happening? Because employers are becoming increasingly afraid of disgruntled employee (or ex-employee) theft of company material, misappropriation of software, and even sabotage and violence in rarer cases. The employment misappropriation threat is felt particularly by media and entertainment companies, and unfortunately workplace violence incidents are on the rise everywhere. Some employers see the promise of severance – carrot-on-a-stick illusory, or not, as finally offered – to be a hedge against these risks as well. The moral of the story – the employee should keep perfect and thorough contemporaneous documentation of his or her employment file, at home, well prior to any severance scenario.

The employee should save copies of everything – offer letters, acceptance letters, employment contracts, “non-compete” documents, non-disclosure or confidentiality agreements, employee handbooks, time cards or time sheets, performance reviews, expense and reimbursement forms and receipts, insurance and COBRA documents, inter-office memos relating to work and performance, and anything else relating to the employment relationship with the company. The only exception would be, the employee should not remove any material from the workplace which is the employer’s or someone else’s property, or which the employee is contractually or otherwise obligated not to remove from the place of work. As an entertainment attorney handling production matters, I expect this issue to arise often, since an employee will usually depart while at least some non-fungible projects are still in development or production at the employer’s premises. This question of property ownership, intellectual property and otherwise, is sometimes a more difficult judgment to make than it sounds. If ever in doubt – you guessed it – the employee should seek an attorney’s advice prior to any such removal and prior to the closure of the employment severance or other exit documents.

Prior to the severance scenario materializing, the employee should be making thoughtful dated written notes to the employee’s own files and keep them at home, anytime any legally-relevant event happens during employ – such as a supervisor expressing either approval or disapproval with one’s work, or a fellow employee making suggestive or harassing comments in one’s presence. These written notes should be reduced to writing privately, immediately after the event occurs, as opposed to a day or more later. These written notes should quote what was said verbatim (yes, using actual quotation marks, and accurately). The employee should not let these notes merely rely on paraphrases, if possible.

These written notes should be taken home to the extent allowed and feasible, by the employee, on the date of the event so recorded, and should be stored securely in the employee’s employment file at home until ever needed. One would be surprised to learn just how many otherwise-valid employee-side severance-related and other legal causes must be wholly abandoned, simply for the employee’s idle failure to make a written verbatim record of important workplace conversations. This overall issue arises in the context of employment attorney and entertainment attorney work, though familiar to most all other legal practitioners as well. For legal purposes, the employee must assume that a re-constructive written record made in retrospect the following week instead, or a non-verbatim note, is near-worthless relative to one taken at the moment. What the employee wants is what is known as a “contemporaneous written record” – that means, “at the same time as the occurrence of the event itself”. And yes, for most forensic purposes in the employment context, that also could include a careful verbatim written record made by the employee five minutes after the event ends. The employment severance dialogues themselves, if and when verbal alone, should be reduced to writing by the employee in this fashion, too.

Finally, the last rule is a corollary to some of the others mentioned immediately above: The employee should bring or forward a complete photocopy (not originals) of the employment file which the employee kept at home, to the attorney or attorneys – entertainment attorney or otherwise – that the employee is considering to represent the employee in the negotiation of any employment exit and severance agreement, or any litigation or proceeding for wrongful termination of the employment or otherwise.

The employee should remember that what he or she discloses to an entertainment lawyer or any other attorney is strictly confidential, even if the employee never ends up retaining that lawyer to handle the employment severance or exit agreement or any other work. This rule of confidentiality is a serious and inviolate rule. That lawyer could lose his or her license to practice law, if he or she ever betrays the employee’s confidences. Accordingly, after first making sure that the lawyer doesn’t also represent the employer on the employment severance matter (or even otherwise), the employee should be totally candid and thorough in terms of the facts brought to that lawyer’s attention. The employee should not “screen out” facts that the employee thinks are irrelevant or that the entertainment or employment attorney “would never be interested in”. After all, if the employee is not an attorney himself or herself, he or she could be well wrong about this type of conclusion. It is the attorney’s job, not the employee’s, to filter out the irrelevant from the relevant. The employee should give the lawyer all the raw data. The matter may be the first employment severance deal which the employee has ever lived through, but probably not the lawyer’s.

The employee should cover any packet furnished to his or her actual or intended lawyer with a transmittal letter bearing the legend “Strictly Confidential”, or words to similar effect. That cover letter should include a typewritten or word-processed narrative in the employee’s own words, of all the facts and chronology of the severance or other employment matter about which the attorney is being contacted. The employee should not rely upon an oral soliloquy to make his or her point. Rather, the employee should write it all down, in legible font or typeface, before contacting the lawyer. Again, the employee should ensure, prior to divulging these facts to any such attorney, that the attorney does not already represent the employer or any other party closely affiliated with the employer on the employment severance matter (or even otherwise). It is a small world, and the entertainment and employment law bar in the employee’s locale may be even smaller.


This article is not intended to, and does not constitute, legal advice with respect to your particular situation and fact pattern. Do secure counsel promptly, if you see any legal issue looming on the horizon which may affect your career or your rights. What applies in one context, may not apply to the next one. Make sure that you seek individualized legal advice as to any important matter pertaining to your career or your rights generally.

Employment And Severance Scenarios
© John J. Tormey III, PLLC. All Rights Reserved.

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My law practice as an entertainment attorney includes state and federal employment law matters, including terminations, severance packages, executive compensation, settlements, releases, and other human resource matters including those that may arise in the fields of film, music, television, publishing, Internet, and other media and industries. If you have questions about legal issues which affect your career, and require representation, please contact me:

Law Office of John J. Tormey III, Esq.
John J. Tormey III, PLLC
217 East 86th Street, PMB 221
New York, NY 10028
(212) 410-4142 (phone)
(212) 410-2380 (fax)
e-mail: [email protected]

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Rescinding Of A Determined Employment Contract

With the right to employment comes another essential related right which is the right to choice of one’s employment. The right to choice of one’s employment gives the freedom to people to undertake work of their own choice and not toil in the field in which they do not wish to put their labor. Laboring against the will of one’s self can be considered to be forced labor which is illegal in UAE and most of the other countries in the world. Employment contract is an agreement between the employer and the employee where the employee agrees to work for the employer for a fixed period of time and for a specific job – role. Employment contracts sometimes do not fix the duration of employment in which case the contract is known as an undetermined contract whereas determined employment contracts are contracts that bind the employee to the employer for a fixed period of time. Employment contracts are not considered as forms of forced labor as both the employee and employer willingly enter into it but in the long run it may be considered as forced labor as the main aim to fix a duration is to ensure that the employee does not leave the employment before that duration even if he wishes to and therefore once the employee signs an employment contract he has to work for the employer for the number of years fixed by the employment contract and the employee loses his right to leave quit the employment before that period. Though this is not considered forced labor it is in reality a different form of forced labor behind the veil of an enforceable contract.

In the United Arab Emirates the right to employment and all related rights enumerated in its rich constitution is only limited to the nationals of the United Arab Emirates whereas the rest of the people who live here as expatriates have to solely depend on employment contracts and therefore become the victims of the veiled forced labor. The present article discusses the regulations enumerated in the labor law1 for ending the employment and the consequences of breach of employment contracts of fixed duration.

According to the labor of the UAE the employer may on grounds enumerated in article 120 of the federal law no.8 of 1980, rescind the employment contract without giving notice. The grounds enumerated for rescinding of the employment without notice are as under:

1. In case the worker assumes a false identity or nationality, or submits false certificates or documents.

2. In case the worker had been appointed under probation, and the dismissal had taken place during or at the end of the probation period.

3. In case the worker commits an error resulting in colossal material losses to the employer. In such cases the Labor Department should be notified of the incident within 48 hours of the knowledge of the occurrence thereof.

4. In case the worker violates the instructions related to the safety at work or in the work place, provided that such instructions were written and posted in a prominent location, and that the said worker is notified thereof if he be an illiterate.

5. In case the worker fails to perform his main duties in accordance with the employment contract, and thereafter fails to remedy such failure despite a written investigation on the matter and a warning that he would be dismissed in case of recidivism.

6. In case the worker divulges any of the secret of the establishment where he works.

7. In case the worker convicted in a final manner by the competent court in a crime relating to honor, honesty or public ethics.

8. In case the worker is found in a state of drunkenness or under the influence of a narcotic during work hours.

9. In case the worker assaults the employer, responsible manager or co – worker during the work hours.

10. In case the worker remains absent without valid cause for more than twenty non – consecutive days in one year, or for more than seven consecutive days.

In case none of the above circumstances described applies to a case yet the employer terminates the employment of the worker without notice before the expiration of the determined employment contract, the employer has to provide compensation to the employee for the same. The compensation amount that is provided to the worker by the employer is in lieu of the damages suffered by the worker due to the premature termination of the employment. The law provides for a limitation to the amount of compensation which is limited to the total wage due for the period of three months or for the remaining period of the contract, whichever is shorter, unless otherwise stipulated in the contract. Therefore this provision is subject to the terms of the contract. Many times the contract has liquidated damages fixed for specific breaches; in such cases the damages awarded do not exceed nor are less than the liquidated amount.

Similar provisions are also provided in case the worker decides to leave the employment before the expiration of the employment contract. The worker may leave the employment before the expiration of the contract without notice if the following circumstances prevail:

1. In case the employer breaches his obligations towards the worker, as set forth in the contract or the law.

2. In case the employer or the legal representative thereof assaults the worker.

In case the two circumstances mentioned above do not prevail and yet the worker leave the employment prior to the expiry of the employment contract, the worker is be bound to compensate the employer for the loss incurred by him due to the rescission of the contract. The compensation amount is limited by the law to not exceed the wage of half a month for the period of three months, or for the remaining period of the contract, whichever is shorter, unless otherwise stipulated in the contract. Thus here too the terms of the contract if any regarding this matter shall be made applicable in a manner similar as it is explained above regarding termination of employment contract by employer.

These provisions mentioned above hold good only to the citizens of UAE, for the rest of 88% of the population the provision stipulated in article 128 of the law2 applies. Article 128 provides that in the event of a non – national worker to leave his work without a valid cause prior to the end of the contract with definite term, he may not get another employment even with the permission of the employer for a year from the date of abandonment of the work. It further provides for a warning for the employers that they may never knowingly recruit the worker or retain in his service during such period. The Non – national workers may be exempt from such penalties if they can secure an authorization of the original employer and after submitting such authorization in the ministry of labor and social affairs, attain the consent of the ministry for the new employment.

1Federal Law no. 8 of 1980
2Federal law no. 8 of 1980

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Five Things an Employer Needs to Know About Employment Law

It is an unavoidable demand of running any business that an employer must have a good knowledge of employment law whether they are self employed and/or employ other staff. They should have an awareness of the rights of the employee, the employer themselves and where each party stands in the unfortunate event that the normal working relationship breaks down. This article addresses the five key areas that employers and HR departments need to consider when dealing with employment law in the UK.

1. How You Define Employees and Employers
It is important, before delving into the intricacies of employment law to have a clear idea of the parties that are involved and how their roles should be defined.

Employed vs Self Employed: This distinction can be less apparent than you may think. If a worker has agreed to provide a service/work under contract for an organisation then they will be a worker employed by that organisation unless the organisation is actually employing the services of that individual’s business, in which case the worker is self-employed and thus not a direct employee of the organisation. An example of such a scenario would be a contractor who offers his services to an employer via his own business rather than agree a direct contract of employment himself.

Part Time vs Full time: This is a heavily contextualised concept as the hours a full time employee works in one organisation could be the same as the hours worked by a part time employee in another. Once an organisation has set the hours that a full time employee is expected to work, a part time employee is defined as a worker employed on the same contractual basis but for reduced hours. The key thing to remember here is that part time employees should not be treated any less favourably in comparison to their full time counterparts purely because of the difference in hours that they work, unless their hours are a justifiable factor in the decision process. For example, pay should always be awarded on a pro-rata basis for part time workers in comparison to an equivalent full time role. Employees have the right to challenge and demand written explanations if they think that they are being treated differently on this basis alone.

Temporary vs Permanent: This distinction depends upon the contract of employment which we will discuss later on. The temporary or fixed term worker will have a contract which agrees their employment for a fixed period of time as opposed to an ongoing permanent relationship. As with part time workers, temporary workers must not be treated any differently to their permanent counterparts purely on the basis that they are on fixed term contracts.

2. Statutory Rights
These are the rules that govern and provide the framework for how you will need to deal with your staff from the start of the recruitment process to the cessation of the contract of employment. They cover not only the definitions of employment types mentioned above but every other area of individuals’ rights in the work place. They are too broad and detailed to discuss in their entirety here but, in summary, include:


Minimum Pay – Rates for over 16s, varying for different age groups
Equal Pay – Contracts for women employees must include the same pay and benefits as that of a man in an equivalent role
Pay Slips – To be itemised and provided before or on the date of pay
Discrimination – Employees must not be discriminated against based upon “protected characteristics” such as age and sex. Provisions must be in place for disabled workers
Equality Act 2010 – Employers do have the right to choose between two candidates of equal ability on such a characteristic if it is under-represented amongst their staff

Working Hours

Maximum Working Week – 48 hours, regular breaks etc. Opt outs can be agreed but not demanded
Flexible Working – Parents of children up to 18 years old have a right to apply to changes to their hours and work location which an employer can only refuse if specific circumstances are met
Parental Leave
Maternity Leave – 26 weeks ordinary and 26 weeks additional entitlement
Paternity Leave – 2 weeks entitlement with additional 26 weeks when mothers return to work


Sickness – Statutory sick pay entitlement etc
Compassionate Leave – Employees have a right to time off (but not pay) if they have illness or death in the immediate family

Whistleblowing – Protection for some disclosures in specific circumstances which would otherwise breach the employee’s contract.

Workplace Health & Safety (see below)

Redundancy – When an employee’s role is no longer required.

Statutory Pay
Notice Period
Relocation Opportunities

TUPE – Conditions of employment must be transferred in the event of a take over.

Pensions – Most employers must offer employees a stakeholder pension provision.

Dismissal & Disciplinary

Unfair Dismissal – The employer must have a fair reason (e.g., employee conduct) to dismiss an employee with 1 years employment and must follow a fair dismissal procedure. Some reasons for dismissal will qualify to be considered as automatic unfair dismissals such as union action, time off for parenting etc

Wrongful Dismissal – Notice must be given by all parties (unless a fixed term contract is lapsing) as set out in common law

Constructive Dismissal – If an employer breaks the terms of a contract and consequently forces an employee’s dismissal

Retirement – The Default Retirement Age is ultimately due to be scrapped by Oct 2011 although there are certain measures already in place to reach this end (Retirement is therefore no longer a fair reason for dismissal).

One of the most essential things to remember with statutory rights is that they are regularly changing. As an employer or HR worker you must remain familiar with the latest developments.

3. The Contract
Perhaps the most important element of any employer-employee relationship is the contract of employment. All parties will have certain statutory rights as mentioned above but the finer details and practicalities of the relationship will be contained in the employment contract. The contract will determine the procedures to follow in the event of staff under-performance or disciplinary proceedings, any employee benefits and concessions above and beyond their statutory entitlements (e.g., maternity leave, compassionate leave) and ultimately the conditions and processes of releasing staff either through dismissal, redundancy or resignation.

4. Trade Unions
If you are an employer of more than 21 individuals you may be approached by a trade union seeking recognition from your organisation. The Trade Union needs to show that it has a 10% representation in your workforce and that those members wish your organisation to acknowledge it. You will have 10 days to respond to the request otherwise you will have effectively rejected the approach. In the event of rejection the Trade Union can apply to Central Arbitration Committee to force you to accept their approach for recognition. Once a Trade Union has been recognised, an employee is entitled to take part in industrial action organised by the union (for a period of up to eight weeks) if the industrial action was called for by an official Trade Union ballot. Any dismissals resulting from this action would automatically qualify for unfair dismissal.

5. Health And Safety
An employer is obliged by common law to provide a safe working environment and to ensure that their workers are fully competent in the roles they are filling. However employers are also bound by statutory requirements which reinforce these obligations and the fact that all employees must, at all times, be fully capable, be trained in the safety procedures that they must follow and be aware of the Health & Safety Act 1974.

To this end employers are also required to perform regular assessments of the risk in the workplace, not only to their own employees but any other individuals who may be affected. Employers of at least five members of staff must document these assessments and are in addition required to produce a documented health and safety policy which is communicated to all members of staff.

There are many more requirements that an employer must be aware of to fulfill these objectives and specific additional regulations which apply to particular industries and workplaces.

As you can see employment law is a very broad and nuanced topic and it takes a fair amount of effort and time to become familiar with it. Therefore, if you are in doubt, or you need guidance on a specific circumstance you should seek advice from a qualified employment law specialist, such as Employment Solicitors Basingstoke to make sure you take the easiest and most economical path to a resolution.

© Stuart Mitchell 2011
I’m a small business owner. If you are interested in looking for employment law advice in the Basingstoke area then visit Employment Solicitors Basingstoke or Basingstoke Employment Lawyers

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Are You Really Self Employed?

Benefits of self employment
There are benefits to the employer. The ease of sacking and the financial benefits of no employer’s national insurance, no pension contributions, no sickness and holiday pay etc.

The main advantage to the worker is the reduction in national insurance and the ability to claim expenses such as, wages to family members, use of home, travel costs etc.

This is from the different wording of the act. Allowable expenses for the self employed need to be “wholly and exclusively for the purposes of earning the profits of the trade”.

For employees they must be “incurred wholly, exclusively and necessarily in the performance of the duties of the employment”.

There is also the cash flow advantage. The self-employed do not suffer deduction of tax at source. As with all planning it is necessary to commit all the figures to paper to completely understand the financial implications and result.

The statutory position
Neither employee nor employer is defined in the Taxes Acts.

Common law differentiates on the basis that an employee has a contract of employment whereas a self employed person works to a contract for service.

The difference can be explained by the example of your house being painted. Who does the work? Is it the person who quoted or someone on his behalf?

The person who quoted is clearly self-employed but is his worker an employee? Is he under the control of the man who quoted or has he sub contracted his services?

To resolve this question you must review many aspects of how that person carries out his duties. You cannot just run through the check list on the HMR&C web site but you must paint a picture from the information gathered from that review. Then review the picture and make a decision.

The indicia
Opportunity to profit
An employee is paid a set sum under his contract whereas a self-employed person can profit from his actions. He may also lose money; an employee cannot.

Employees are remunerated for the hours they work whereas a self-employed person is usually paid for the job or task he has performed so the profit is in his own hands. He can adjust overheads and time; also he can take on help to complete the contract.

Employees cannot and cannot influence their return and they take no risk.

Mutuality of obligations
The length of a contract is not conclusive one way or the other. Employees often enter short term employment contracts.

What is important is that the self-employed can decline work and in effect select the work they want to do. Employees would be sacked if they declined work. Make sure the contract is per job or for a fixed term.

This assumed importance in the case (Sp C 599 Parade Park Hotel) which is useful in determining the meaning of mutual obligations.

It means that so long as the contractor is not obliged to offer a new contract and as long as you can decline work, then mutuality of obligation does not exist.

This was confirmed in the case of Bridges and others v Industrial Rubber plc where the contractual absence of a promise to provide work and the counter promise to do it was inconsistent with a contract of employment regardless of the other conditions of the working relationship.

Make it clear in the contract that the sub contractor is responsible for his own tax and national insurance and receives no benefits e g. no sick pay; no holiday pay and no pension contributions are paid on his behalf. It would be wise for the sub-contractor to register for VAT.

A self-employed worker usually provides the tools necessary to do the job.

Employees such as tradesmen usually supply the necessary hand tools. Larger items of equipment would be provided by the employer, the self-employed sub-contractor would provide them himself even if leased.

Work standard
For any engager the standard of work performed is important. An employer will require the employee to correct any unsatisfactory work but it is done in the employer’s time.

A self-employed person must perform the contract to an acceptable standard according to the terms of the contract. Any unsatisfactory work is put right in his own time and at his own expense.

It is important as to how workers are viewed by the neutral. An explanation of this item is outlined by the following example taken from the HMR&C web site.

“Someone taken on to manage a client’s staff will normally be seen as an integral part of the client’s organisation and this may be seen as a strong indicator of employment.”

One “employer”
Most people explain that if you work for only one engager or contractor you cannot be self-employed.

I agree that the more firms worked for the more likely a person is to be self-employed. Only one engager is not conclusive of employment.

You could have three concurrent employments. A good example of one engager not preventing self-employment would be lorry drivers. If you look at the driver’s door of a lorry you will see an indication of what I mean.

It is clear that if you supply the major equipment you are more likely to be self-employed.

Nothing can be deduced from part time work as both an employee and a self-employed person can work part time. A person can work for more than one engager.

He can have more than one employment; more than one engager but within the self-employed status. An employee under a contract of employment can also be self-employed at the same time.

If a subcontractor does not want to meet the cost of materials get the contractor to allow the sub-contractor to use his suppliers’ accounts and enjoy the same discounts. He will, of course, meet the cost from the recharge in the contract price.

Employment contract
If a contract requires a worker to provide personal services and requires the person who engages that person to remunerate him for those services that is likely to be a contract of service and thus an “employment” contract.

Such a contract will go on to specify all the other conditions and requirements of the engager i.e. working hours, holidays, sickness, discipline, grievances etc. So avoid reference to specific days or hours to be worked.

A clause that specifies that a worker can send a substitute in his place or engage other workers to help him fulfill his obligations under the contract is very important in considering the overall balance of the factors and must be in every self-employed contract.

This is one of the strongest single indicia of self-employment. Dr Avery Jones in the case Talentcore Ltd v Commissioners for HMR&C found that the substitution issue was more important than the control factor.

Again I must stress that the actions of the parties must mirror the contract so it would be wise to ensure that substitution takes place during the life of the contract or that help is engaged. The point is that under a contract of employment it is the worker that is employed and it is his labour that is pledged. The labour of someone else must mean a contract for rather than of service.

HMR&C acknowledges that it is the right of substitution that is important. The fact that the substitution has not occurred during a contract is not necessarily relevant. However, a contractual right will be ignored if in reality the worker must undertake the work personally. Dragonfly Consultancy Limited v HMRC (2008)

Most employees are paid by the hour, week, month or are on an annual salary.

The self-employed are usually paid by the job.

I find no difficulty in turning a day rate to payment per job. Take a bricklayer; he knows from the plans how long the job will take. Let us say four days and assume his rate two hundred pounds per day. He simply quotes eight hundred pounds for the contract.

Like all the indicia no one item is crucial. It is the balance between them all. HMR&C place considerable reliance on the method of payment but as I have said it is only one item.

Make sure, for example, that he hires the necessary scaffolding!!

Financial risk
There is virtually no financial risk to an employee. The self-employed risk their money. HMR&C indicate that “The risk of making a loss is a very strong indicator of self-employment and can be decisive on its own”.

Make sure you take out all the necessary insurances to include public liability and professional indemnity.

If you undertake work at home make sure with your broker that your home insurance covers any risk.

An employee is usually subject to a large degree of control although not always exercised in practice. He is also told how to do the job, although an expert such as a brain surgeon would be free of that control.

Also an employee’s hours of work, the place where he carries out the contracted work and other practical items are controlled by the employer.

In the case of Market Investigations Ltd. v The Minister of Social Security the Judge said “The most that can be said is that control will no doubt always have to be considered, although it can no longer be regarded as the sole determining factor”

The self employed are free of this control. See J and C Littlewood (T/a J L Window and Door Services) and Anor v R & C Commrs. January 2009 for the importance of this subject.

The more people that know you are self-employed the better your case will be on any challenge.

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Employment Law – As It Applies to Confidentiality

With all the new information concerning HIPAA, which is scheduled to be fully implemented by April of 2005. you need to be aware of the confidentiality laws that govern your practice. One aspect of confidentiality concerns employment law. There are federal and state guidelines that address employment and discrimination laws.

The common law governs the relationship between employer and employees in terms of tort and contract duties. These rules are a part of agency law and the relationship between Principle (employer) and Agent (employee). In some instances, but not all, this law has been replaced by statutory enactments, principally on the Federal level. The balance and working relationship between employer and employee is greatly affected by government regulations. The terms of employment between management and the employee is regulated by federal statute designed to promote employer management and welfare of the employee. Federal law also controls and prohibits discrimination in employment based upon race, sex, religion, age, handicap or national origin. In addition, Congress has also mandated that employers provide their employees a safe and healthy environment to work in. All states have adopted Worker’s Compensation Acts that provide compensation to employees that have been injured during the course of their duties for the employer.

As I mentioned above, a relationship that is closely related to agency is the employee. and principle-independent contractor. In the employer-employee relationship, also called the (master-servant relationship), the employer has the right to control the physical conduct of the employee. A person who engages an independent contractor to do a specific job does not have the right to control the conduct of the independent contractor in the performance of his or her contract. The contract time to complete the job depends upon the employer’s time frame to complete the desired task(s), or job. Keep in mind that the employer may still be held liable for the torts committed by an employee within the scope of his or her employment. In contrast an employer ordinarily is not liable for torts committed by an independent contractor, but there are instances when the employer can be held liable for the acts of the independent contractor. Know your laws governing hiring a person as an independent contractor.

Labor law is not really applicable to your practice of Chiropractic in a practice setting. We will concentrate on employment and discrimination law. There are a number of Federal Statutes that prohibit discrimination in employment based upon race, sex, religion, national origin, age and handicap. The main framework of Federal employment discrimination law is Title VII of the 1964 Civil Rights Act, but also the Equal Pay Act, Discrimination in Employment Act of 1973, the Rehabilitation Act of 1973, and many Executive Orders. In all cases each state has enacted laws prohibiting the same discriminations as Federal Statutes.

Equal Pay Act: This act prohibits an employer from discriminating between employees on the basis of sex by paying unequal wages for the same work. The act also forbids the employer from paying wages at a rate less than the rate at which he pays for equal work at the same establishment. Once the employee has demonstrated that the employer pays unequal wages for equal work to members of the opposite sex, the burden of proof shifts to the employer to prove that the pay difference is based upon the following:

1. Seniority system
2. Merit system
3. A system that measures earnings by quantity or quality of production
4. Or any factor except sex.

Remedies may include recovery of back pay and enjoining the employer from further unlawful conduct and or sizeable fines.
Civil Rights Act of 1964: Title VII of the Civil Rights Act prohibits discrimination on the basis of race, color, sex, religion, or national origin in hiring, firing, compensating, promoting, training or employees. Each of the following could constitute a violation prohibited by the Act:

1. Employer utilizing a proscribed criteria in making an employment decision. Prima Facie evidence would show, if the employee was within a protected class, applied for an open position and was qualified for the position, was denied the job and the employed continued to try to fill the position. Once these criteria’s are established, the burden of proof shifts to the employer to justify a nondiscriminatory reason for the person’s rejection for the job.

2. An employer engages in conduct which appears to be neutral or non-discriminatory, but continues to continue past discriminatory practices.

3. The employer adopts rules, which are adverse to protected classes, which are not justified as being necessary to the practice business. The enforcement agency is the Equal Employment Opportunity Commission (EEOC). It has the right to file legal actions, resolve action through mediation, or other means prior to filing suit. Investigate all charges of discrimination and issue guidelines and regulations concerning the enforcement policy of discrimination law.

The Act provides three defenses: A bona fide seniority or merit system, an occupational qualification or a professionally developed ability test. Violations of this act include: enjoining the employer from engaging in unlawful conduct, or behavior. Affirmative action and reinstatement of employees and back wages from a date not more than two years prior to the filing of the charge with the EEOC.

Age Discrimination in Employment Act of 1976: This Act prohibits discrimination in hiring, firing, salaries, on the basis of age. Under Title VII it address all these areas and ages, but it is especially benefits individuals between the ages of 40-70 years. The language in this act is substantive for individuals between 40-70 years of age. The defenses and remedies are the same as the Civil Rights Act of 1964.

Employee Safety: In 1970 Congress enacted the Occupational Safety and Health Act. This Act ensured that every worker have a safe and healthful working environment. This Act established that OSHA develop standard, conduct inspections, monitor compliance and institute and enforce actions against non-compliance.

The Act makes each employer to provide a work environment that is free from recognized hazards that can cause or likely to cause death or serious physical harm to the employees. In addition, employers are required to comply with specific safety risks outlined by OSHA in their rules and regulations.

The Act also prohibits any employer from discharging or discriminating against an employee who exercises his rights under this Act.
The enforcement of this Act involves inspections and citations for the following:

1. Breach of general duty obligations
2. Breach of specific safety and health standards
3. Failure to keep proper records, make reports or post notices required under this Act

When a violation is discovered, a written citation, proposed penalty, and corrective date are given to the employer. Citations may be contested and heard by an administrative judge at a hearing. The Occupational Safety and Health Review Commission can grant a review of an administrative law judge’s decision. If not, than the decision of the judge becomes final. The affected party may appeal the decision to the US Circuit Court of Appeals.

Penalties for violations are both civil and criminal and may be as high as $1000.00 per violation per day, while criminal penalty be imposed as well for unlawful violations. OSHA may shut down a business for violations that create dangers of death or serious injury.

Worker’s Compensation: Most actions by injured employees against an employer are due to failure of the employer to use reasonable care under the circumstances for the safety of the employee. In such actions the employer has several well-established defenses available to him. They include defenses of the fellow servant rule. This rule does not make an employer liable for injuries sustained by an employee caused by the negligence of a fellow employee. If an employer establishes that the negligence of an employee contributed to the injury he sustained in the course of his employment, in many jurisdictions the employee cannot recover damages from the employer. Voluntary assumption of risk is the third defense. An employer in most jurisdictions is not liable to the employee for harm or injury caused by unsafe conditions of the premises if the employee, with knowledge of the facts and understanding the risks involved, voluntary inters into or continues in the employment of the employer.

Keep in mind that all states have enacted Worker’s Compensation Acts. These statutes create commissions or boards to determine whether an injured worker is entitled to receive compensation. Defenses above are not available in most jurisdictions to employers in proceeding under these statutes. The only requirement is that the employee be injured in the course of his employment.

Fair Labor and Standards Act: This act regulates the employment of child labor outside of agriculture. This act prohibits the employment of anyone less than 14 years of age in non-farm work. Fourteen and Fifteen years old may be employed for a limited number for hours outside of school hours, under specific conditions of non-hazardous occupations. Sixteen and seventeen year olds may work any non-hazardous jobs. Eighteen and older person may work in any job. This Act imposes wage and hour requirements upon covered employers. This act provides for a minimum hourly wage and overtime pay.

Keep in mind HIPAA laws are involved in confidentiality and proper record keeping and address many of the areas discussed in this article.

Dr. Kenneth S. Ross DC, JD
Altamonte Springs Chiropractor

Altamonte Health & Wellness
100 Marcia Drive
Altamonte Springs, FL 32724

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