About Attorney Nicole Gainey

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Seattle, WA, United States
Seattle Attorney, Nicole Gainey, founder of Gainey Law PLLC, represents Washington State employees who have been sexually harassed, discriminated against and wrongfully terminated in legal disputes against their employers. To date, she was litigated against employers large and small seeking justice for her clients.
Showing posts with label unemployment. Show all posts
Showing posts with label unemployment. Show all posts

Thursday, June 4, 2020

Going back to work?

An excellent article on the issues faced by Washington workers and employers as we seek to re-open businesses during this on-going pandemic can be found here:

June 4, 2020 Update from ESD. Employers and employees are facing some tension about going back to work. For employers it may not be reasonable to bring employees back full-time or at full-pay. For employees who may be making more on unemployment then you will make if you return to work. Especially if your employer wants to bring you back at part-time or at a lower rate of pay then you were making before.

Actually, Scott Micheal from Washington's unemployment department points out that if an employee is brought back under reduced hours from their normal work hours everyone will get the best of both worlds. It is a win for the employer who can more slowly ramp up and safe money on payroll while doing so. It is a win to the employee who will receive the optimal amount of income while securing their job.

For example, a worker who normally makes $1000 a week would get $750 on ESD. If they go back to work at 1/2 time the employer saves on paying the employee for now. The employee still gets paid $500, and they get $350 in Washington ESD and $600 in federal funds for a total of $1450 total. These numbers are not precise and remember the federal $600 has a deadline of June 30. However, this is a net win for both the employer who saves money and the worker who gets more than they would receive either by going back to work full time or by remaining on full time unemployment. 

The House did pass the HEROES act which would extend these benefits to January of 2021. If it does not pass then the extra federal benefit of $600 a week will expire at the end of June and at that time the analysis would also change. At that time, the highest income would result from a return to full time employment. 

Call your Senators, if these benefits are important for you and want to see these benefits extended. https://contactsenators.com/washington 

Sunday, May 17, 2020

What does it mean to be an At-Will employee in Washington State?




It seems that as a society we have a lot of notions about work and what an employer can and cannot do under the law. Very few of these commonly held beliefs are true. In my day to day life as an attorney who focuses her work on employment law, I spend quite a bit of time discussing potential legal claims with people who have been mistreated at work. Very rare is the call where a person calling was, in my opinion, not mistreated by the employer. In one such rare case, the gentlemen calling had terrorized a female coworker and was genuinely confused about why he was terminated. Not quite as rare, is the caller who has been mistreated and has a remedy under the law. The most common caller has in their, and my, opinion been mistreated but has no legal remedy under the current law. Most callers are victims to an employment system that has become increasingly callous and indifferent to the plight of the worker.

The system I am describing is called At-Will employment. Washington State is an At-Will employment state.  Legally, “At Will” means one can be fired at any time, without cause unless they are specifically excluded from that system. Examples of exclusions include,  government employees, tenured professors, unionized workers and employees working under a contract and sometimes an implied contract. At-first blush, this  uniquely American quirk of labor law seems only fair. Both the employee and the employer are free to part ways at any time. 

However, just because both sides are "free" to part ways at any time doesn't mean that doing so has the same effect on each of them. The risk and burden of destabilizing financial loss is much more likely to fall on the employee. At-Will relationships between employees and corporations allow corporations to expand and grow unheeded by financial responsibility to their employees. Corporations can take bigger risks and if they fail, they can cut the burden of labor costs almost without restriction. This helps create more value for shareholders, but at a cost to worker stability and security.

Callers often contact me and tell me that they understand that they are At-Will, but still think that things like seniority, performance metrics - positive reviews, workplace success, a recent raise are all proof that they should not have been terminated. Of course, these are logical feelings that arise from our notions of fair play. They arise from a time when workers generally could not be fired without "cause" and could not be let go with out notice and some sort of "due process." Worse yet are the callers who have been subjected to bullying, the inhumane "professional improvement plan" or simply never supported in their role.  Entire industries are notorious for overworking, underpaying and mistreating their employees, but only in the most extreme cases does that behavior actually run afoul of the law. Washington State does have anti-bullying and anti-harassment laws mostly related to our Public schools. However, for most other employees a bad manager can easily ruin your life without doing anything illegal.  At-Will contracts and laws codify the power imbalance between the worker and the employee with little regard to the dignity of workers or to their human rights. 

 “It is employment at will and its fundamental assumption which is the major barrier to establishing a system of collective bargaining,” wrote the labor lawyer Clyde W. Summers. “In American labor law, the monarchy still survives,”
He summarized some alternative polices from around the globe,
In other countries, employees are viewed as members of the business enterprise. In Germany, for example, the employee-elected works council has, in addition to representation on the supervisory board, co-determination rights over decisions such as work schedules, leaves, safety and health measures and guidelines for hiring, transfer and dismissal. If the employer and the works council cannot agree on these matters, the issues are submitted to binding arbitration. In Sweden, the union must be consulted on "any matter relating to the relationship" between the employer and the employees. This includes such matters as a decision to introduce new machinery, sell the company or hire a new managing director. In Japan, the union is consulted on nearly all matters of employee interest and employees are commonly referred to as "members of the family. 
Jefferson B. Fordham Professor of Law Emeritus, University of Pennsylvania Law School; J.S.D. 1952, Columbia; J.D. 1942, Illinois; B.S. 1939, Illinois; expertise in labor law and comparative law. I. Payne v. Western & Ad. R.R., 81 Tenn. 507 (1884). 66 U. PA. JOURNAL OF LABOR AND EMPLOYMENT LAW [Vol. 3:1 ]

It is my hope that as we emerge from this pandemic induced hibernation that we will consider not just economy protecting adjustments that happen to benefits all citizens - like detaching medical insurance coverage from full-time employment, but also that we will seek and secure policies that correct for the imbalances of power and thereby restore a rightful sense of dignity to all workers.

To read more about the history of the At-Will employment doctrine click here.


Thursday, May 14, 2020

Want to Stay on Unemployment? It's likely not up to you.

In some cases workers are realizing that with the federal stimulus money they can do better financially by staying out of work. Especially if they are taking care of kids that would normally be at school or otherwise engaged outside the home during work hours. As an employment attorney I field a few of these "do I have to go back to work" calls a week. 

This article from SHRM explains: "If you are recalled to work, your unemployment is stopped. It isn't really your choice." 
Lindsey White, an employment lawyer and partner at Shawe Rosenthal in Baltimore, said, "The employees who are saying, 'Thanks for the offer of work, but I would rather stay on unemployment' won't be eligible for unemployment. That is going to be a rude awakening [for many]."

The article addresses how Workers and Employers can get creative to solve some problems: 
For example, when employers are considering terminating employees for continued performance issues, the employees will volunteer to be laid off (not resign, resigning forfeits unemployment benefits) so they can collect unemployment, said Stephanie Weinstein, an employment lawyer with Marcus & Shapira in Pittsburgh. In those cases, the arrangement benefits both parties.
For an employee who might feel too overwhelmed by pandemic-related caregiving obligations to go back to work, there is another option: The Families First Coronavirus Response Act (FFCRA). The law requires employers with fewer than 500 workers to offer 80 hours of paid sick leave for caregiving at two-thirds the employee's regular rate of pay, capped at a maximum of $200 a day or $2,000 total, if the employee is unable to work or telework. Paid sick leave is also available for individuals experiencing symptoms of COVID-19, in quarantine or caring for an individual under quarantine. 
The same law expanded family and medical leave to cover employees who are unable to work or telework because of the closure of a child's school or child care facility. The first 10 days of the 12 weeks of leave are unpaid (although employees can use the paid sick leave to get paid at two-thirds their regular rate for this time). The last 10 weeks are paid at two-thirds of the employee's regular rate, capped at $200 per day or $10,000 total, White said. Employees can take the leave between April 1 and Dec. 31, 2020.
The extended family leave can also apply to people who work remotely. "Let's say an employee's husband can watch the kids in the late afternoon through evening, but the employee normally works later in the day," Weinstein said. "The employee could work with her employer to change her work hours or also possibly take some intermittent leave." The arrangement should work both for her employer and for the employee.
Added White: "If someone is allowed to work from home, you can take family leave intermittently if the employer agrees. For example, the mom can take four hours a day and the dad can take four hours a day, but they can't both be off from 8 a.m. to noon." Instead, they could take leave in shifts to watch the children and help them with schoolwork.
Employees who are not getting their full salary through the FFCRA may be eligible for partial unemployment benefits, White said. Even where an individual receives partial unemployment benefits, he or she will receive the extra $600 payment from the CARES Act.

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