Monday, March 31, 2008

The fight against age discrimination has just begun

Age discrimination has its standing in the wide list of discrimination cases in the workplace.

Both federal and state laws have provided provisions defining the coverage and parameters of age discrimination in the employment context.

Specifically, the federal governing law that admonishes age discrimination is the Age Discrimination in Employment Act (ADEA). This law protects individuals 40 years of age or older from employment discrimination based on age.

On the other hand, in the state of California, the relevant law that protects unlawful age discrimination is the California Fair Employment and Housing Act (FEHA).

The said law among others makes it illegal for an employer to discriminate anybody on the basis of age. To be specific, workplace discrimination against employee or prospective employee based on age is proscribed.

There are diverse scenarios of age discrimination in the workplaces. The bottom line really is that irrespective of the circumstances, the same should be condemned as against public policy.

Having those stringent laws that protects individual against all sorts of discriminatory practices in the workplaces, a good question was framed, have we successfully addressed the pressing issue of age discrimination?

This question has kept haunting me, when I heard sad stories of age discrimination in workplaces.
To answer this query is almost impossible, more so impracticable.

In this competitive world, no one is really secured in their person, rights or property as well as on their living or employment.

The ever changing company policies, evolution of machines and fast-turn out of technology lead to severe discrimination in the workplace.

Most workers have lost their hard earned job thru different mechanisms employed by their employers at the guise of legal means.

Many aged workers who are still capable, mechanically and mentally to do the job, were laid-off and terminated from the job by their scrupulous employer due to reasons unknown.

Some employer’s request’s for an untimely retirement of workers in exchange for some unequal benefits.

These dismal events are hurting not only our society but also the future of our workforce. What can we do about this concern? Well, that is a question that cannot be answered overnight, much more certainly.

To cap things, the fight against age discrimination in the employment world is far from over.

Even with those laws, the fight against age discrimination has not yet begun.

Wednesday, March 19, 2008

Understand the Law to Understand Your Rights

Discrimination is a universal issue. No place on earth is free from the prejudice of other people who look down on others and treat them differently because of their certain characteristic.
Some might think that discrimination no longer exists in a more neutral and fair society we live in today. Some might think that discrimination belongs to history – before the time laws on prejudice and bias are promulgated and recognized by humanity. Unfortunately, there are things that do not remain in the past; lives on in the present and could likely continue on into the future.
Even in the parts of the world where we expect that discrimination would be less rampant due to its commonality, we might find ourselves disappointed when we discover that even people in these areas continue to discriminate individuals of a different color, race, religion, age, gender, or sexual orientation, or individuals who are disabled or pregnant.
One of the most common discrimination that is evident in our society is employment discrimination. In fact, the office of Equal Employment Opportunity Commission is often hurled with a multitude of discrimination cases filed by workers from the county of Los Angeles.
Discrimination in the workplace arises too often because many workers are not familiar with their rights. There are numerous employees who do not understand, or are not even aware of the employment laws which protect them from unfair and unlawful treatment in their workplace.
It would be beneficial for workers to learn and recognize their rights. Perhaps reading more on matters of employment laws will help them. One material I read entitled, “Understanding Employment Discrimination Law” provides an overview on such issue.
Understanding these laws will help you recognize when and how your employer is in violation of these policies and your rights as well. Such instances where you find yourself being discriminated by your employer, you can turn to lawyers for their legal services. They can certainly help you figure out the best way to proceed and how you can obtain justice from such unaccepted and inexcusable conduct.

Thursday, March 13, 2008

Another Look at Motorcycle Accidents

Is it so hard for drivers to remain vigilant on the roads? It seems that traffic regulations, traffic safety programs, and all kinds of safety warning signs on the road will never be enough to keep the roads of California accident-free. Even safety devices, like the seat belts or helmets, are taken for granted by drivers.
No wonder fatality rates among these motorists are still on the rise, despite all attempts of the government to reduce vehicle accidents. Amid these vehicle accidents, one of the most severe casualties are from motorcycle accidents.
Day after day, we hear of motor accidents on the news. Poor individuals suffer severe injuries because of being hit by other motorists. Let’s take the example of a motorcycle driver who was riding along Wilshire Blvd. when a car heading the opposite direction made a sudden and unsignaled left turn within a few feet away.
He was taken by surprise thus disabling him to avoid the incoming crash. In split seconds, he flew away from his motorcycle and plummeted onto the side of the road. He suffered second degree burns from brushing onto the pavement. He also sustained multiple cuts and bruises, along with broken bones on his arms and legs, and a dislocated shoulder.
Vehicle drivers need to be on guard at all times. They need to understand they may put other people’s lives in danger if they are not careful with their driving.
It is sad enough that many people lose their lives to these accidents. It is a much depressing thought that people who are responsible for these accidents seem apathetic about the pain and suffering they cause to the families of the individuals they have committed wrong to.
In such cases where surviving family members lose their loved one to a wrongful death in a motorcycle accident, it is vital for them to know that they can turn to personal injury lawyers who know a great deal about accident claims.

Disadvantages of Mandatory Arbitration

Mandatory arbitration has its purposes and advantages. But in an employment dispute? I don’t think so. It has more disadvantages than it does good on the part of the employee.
First, since arbitration requires confidentiality, the public will have no access to the records. How can we know of the irregularities conducted by an employer? Isn’t this important on the part of other employees or to aspiring job applicants?
I strongly believe that unlawful employment conducts should not be kept restricted from the public. They have the right to know which employers they can trust and which ones they can’t.
Another drawback of arbitration in employment dispute is that it often always mean lower compensation for the poor employees who could have had received a higher amount in case they proceeded to litigation. Most of the time, it is the employer who gets a favorable result in arbitration.
Confidential binding arbitration prevents employees in going to court and waives their right to a trial by jury. This means that if an employee got into any dispute or controversy along with a co-employee, officer, agent, or any member of the company, they will have to resolve the dispute with an arbitrator who will decide for them.
If mandatory, any dispute associated with unlawful discharge, compensation, benefits, discrimination, wage and hour claims, harassment, any employment actions, and others should be settled through arbitration. This policy can be stated as part of an employment handbook, as part of an agreement between the employer and employee, as a separate policy or in a letter.
The enforcement to arbitrate employee rights is a highly contested issue. To assure fair arbitration agreements, there are basic requirements set forth by court.
  • Agreement should provide the plaintiff every substantive rights and remedies presented by the statute in question and the arbitral procedures have to be just.
    • Clear notice to the employee that he or she is relinquishing the right to deliver judgment discrimination claims in a court discussion and choosing instead to arbitrate these claims.
    • A neutral arbitrator.
    • A fair arbitral hearing.
  • The right to representation by a lawyer
  • Reasonable discovery
If employees are subject to mandatory arbitration when facing a dispute, they should see to it that their rights are preserved and protected through the help of a lawyer.

Wednesday, March 12, 2008

Disputing the Fallacies against NDAs

Why are nondisclosure agreements or NDAs necessary? Primarily, to protect one’s business. In the highly competitive business world, a nondisclosure agreement is a safeguard against information theft.
Any employer or business entrepreneur knowledgeable enough in his business will understand that an NDA is a great deterrent against people who will try to rob you of ideas and eventually, of prospected clients.
Reading the article, “Startup Reality Distortion No. 3 – The Fallacy of the Nondisclosure Agreement”, posted in April 18, 2006, however, will give you a different, opposite idea of an NDA is really all about. Written by an entrepreneur, the article discusses some of the notions we have of the NDA which the writer tried to refute as false.
The article claimed the following fallacies against the NDA:
  1. That investing time, effort, and money to protect an idea is not good for a startup business.
  2. That revealing your ‘secrets’ to others will drive them to pursue your idea for their own end.
  3. That the NDA is irrelevant and cannot give you the protection you need.
  4. That the chances to get people to agree and sign an NDA are low
In a way, the writer may have his reasons for saying those things. But I would disagree with his claims that an NDA cannot provide protection for one’s business. On the contrary, it really does.
Maybe it would help if one can formulate a strong nondisclosure agreement to ensure better protection for business.
Maybe adding the following provisions to a NDA can help make it stronger and much easier to be enforced. Here are the provisions:
  • A definition of proprietary information
  • An agreement to return all company materials, including notes and computer files, upon termination
  • An agreement that in its work with the employer, the employee will not use or reveal proprietary information of third parties such as former employers or business partners
  • no “moonlighting" clause, prohibiting the employee from engaging in other business ventures while employed with the company
  • The ever-popular at-will disclaimer.
I hope this information would help people, especially businessmen, in making every available means to protect their interests.

Monday, March 10, 2008

Business Torts and Troubles

Having a good business structure does not always guarantee you immunity from other troubles and problems. In the course of your business life, you may encounter problems or threats to your economic interest or business relationship. This may be in the form of intentional torts meant to harm your business.
Here are some of the common problems besetting a business:
  • Fraudulent misrepresentation - Known also as fraud or deceit. For a fraud claim, a plaintiff must establish that the defendant intentionally misrepresented a material fact and the plaintiff relied on and was harmed by the misrepresentation.
  • Interference with Contractual Relations - The tort of interference with contractual relations allows a person to recover damages from a claim that someone had interfered with the plaintiff's contractual relations. The elements of an intentional interference with contractual relations claim are:
    1. a valid contract between plaintiff and a third party
    2. actual breach or disruption of the contractual relationship
    3. defendant's knowledge of this contract
    4. defendant's intentional acts designed to induce a breach or disruption of the contractual relationship
    5. Resulting damage.
To be considered ‘tortious’, an offending party’s acts must have exceeded fair competition and free expression, such as persuading a bank not to lend a competitor any more money.
  • Interference with Prospective Business Advantage - The tort of interference with prospective business advantage protects economic interests that have not yet been formalized into contract. The elements of this tort include the following:
    1. an economic relationship between the plaintiff and some third person containing the probability of future economic benefit to the plaintiff
    2. actual disruption of the relationship
    3. defendant's knowledge of the existence of the relationship
    4. defendant's intentional acts designed to disrupt the relationship
    5. Damages to the plaintiff proximately caused by the acts of the defendant.
  • Unfair Competition - In California, the tort of unfair competition includes "any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising." California Business and Professions Code § 17200.

Wednesday, March 5, 2008

Age Discrimination: Dilemma in the Modern World

Have you heard the news? Brian Reid, a 54 year old former Google executive filed an age discrimination suit against the against the Internet search engine, maintaining that he was fired because he did not fit its youthful corporate culture.
The federal Age Discrimination in Employment Act (ADEA) protects people age 40 and over from employment discrimination based on age. The law says that an employer may not fire, refuse to hire, or treat an employee differently than other employees because of his/her age. The law applies to all private employers with 20 or more employees and to federal and local governments. It also applies to state governments, although their employees cannot sue them directly for age discrimination.
I am saddened by the fact that in this time and age, age discrimination is still rampant in various workplaces. Isn’t it that employers should get and keep employees in their jobs based on their capacity, not age?
As the saying goes, “wisdom comes with age”. If we believe in this saying then the more we should keep older people in the workforce. Their years of experience have gained them the knowledge and expertise needed in their respective job. Problems are easily solved because they have been addressed so many times before.
On the other hand, if the company is trying to portray a youthful corporate culture, does it follow then that it shall only hire and keep young workers? Youth comes vibrancy and ling and easy going atmosphere.
That’s exactly why laws are passed to adopt measures on how to prevent, if not totally eradicate, age discrimination. This is because more people work longer due to economic necessity or by choice. At some point of every employee’s life, he/she is going to be protected by it because all of us get older. When that time comes, I wonder what will the “not so old” people today who will be by then old and cranky feel.
This is my stand, so long as an employee is able to perform his/her assigned task efficiently and effectively, age should never be an issue.