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.

Monday, July 27, 2020

As Washington State employers start to re-open and talks of re-opening schools take center stage many employees have questions.

As schools plan to open and teachers and other workers wonder what their rights are to Not return to work answers are not as clear as we would like. However, do not make any rash decisions. A lot can change in a few short weeks (isn't that the lesson of 2020?).

The non-profit legal aid Unemployment Law Project has been recording weekly FAQs. You can watch them all here: QUESTIONS? to find out about your rights as an employer or employee with regards to unemployment benefits. 

Wednesday, July 8, 2020

Anti-Racism Resources

    Sometimes I meditate. It helps decrease stress and it helps me focus on the tedious task of applying facts to law - the basic work of lawyers. I usually do it alone using the Headspace app. Sometimes I use the Calm App. Sometimes I join group meditations.  Top attorney and psychologist Lisa Blue  was holding Monday morning sessions for awhile which was great. And locally I have attended in person and (more recently) remote Zoom sessions through SIMS. Tuere Sala is my favorite teacher. She is a former prosecutor - meditation helped her deal with the stressors of law school and litigation. She also teaches Qi Gong, and I was lucky enough to score an instruction and practice DVD from her before the pandemic hit. It has been one of the tools I use to stay sane during this time. 

    Recently, as a member of  WSAJ's diversity committee, I was searching out anti-racism resources and discovered that  SIMS has a wonderful list of resources. I share them below for your convenience. This is a time of great upheaval and change. I hope as a country we rise to the massive opportunity afforded us to make real and lasting change towards a more just and equitable society. 

Antiracism Resources

Seattle Insight Meditation Society adds our voice to the outrage and heartbreak over the continued violence, prejudice and oppression directed at our Black and brown fellow citizens. While the outrage has a new expression, this is not a new problem. Our Black brothers and sisters live with racism daily, fearing for their lives, struggling against discrimination, and being treated as second-class citizens. The barriers to success and financial stability are very real. 

The shock and anger at George Floyd’s death are waking up a country that too easily forgets the daily oppression, racism, and violence that is a fact of life for our Black sisters and brothers. The comfort and security the dominant white culture enjoys are entrenched and risk putting us back to sleep. The unconscious white supremacy and fragility must be overcome. We must not go back to sleep.

We must seek to understand and heal the racism in our own hearts. We must act with wisdom and compassion, confronting and uprooting all aspects of racism. As Dharma practitioners, we are dedicated to understanding suffering and the end of suffering. The root of suffering is the illusion of a separate, isolated sense of self. Racism is a profound manifestation of the separation between self and “other”. By creating a separate self, we create an “other” to defend against, to oppress, to control. Healing racism is Dharma work. It requires inner transformation and outer action.

Please join us in taking concrete, specific steps. 

Sincerely,

Guiding Teachers and Board of Seattle Insight Meditation Society

Here are resources for both inner transformation and outer action. They offer a wide range to provide a starting point for your own work and engagement. Some information may be outdated. Find out more about Sims here.

    Resources for Inner Transformation and Outer Action

    There is a tremendous amount of resources to educate yourself in how to be an ally and not create harm in this time of transformation. Take the time to look through this long list and find areas that resonate with your heart.

    ENGAGEMENT AND EDUCATION (COMPILED BY BARRE CENTER FOR BUDDHIST STUDIES)

    Local Resources

    CONTACT PUBLIC OFFICIALS

    Our public officials respond to public input. Everyone’s voice is important right now.

    BLACK-OWNED BOOKSTORES YOU CAN SUPPORT RIGHT NOW
    • Consider multiplying your impact by ordering from a Black-owned bookstore
    • Here is a great resource with a purchase link to many of the books above directly from a Black-owned bookstore.
    RESOURCES TO BE AN ALLY TO THE BLACK COMMUNITY BY ASUW DIRECTORY OF DIVERSITY EFFORT
    RESOURCES BY THE STRANGER

    Reading Lists

    AN ANTIRACIST READING LIST​ BY IBRAM X. KENDI
     
    GOODREADS/LISTOPIA

    #BlackLivesMatter reading list

    LETTERS FOR BLACK LIVES

    Letters for Black Lives is a set of crowdsourced, multilingual, and culturally-aware resources to help talk about racial injustices with your own family/community. Translated into various languages

    WHY IS THIS ALL HAPPENING?

    This page on the 100 Year Hoodie website steps you through different layers of what has led up to this moment.

    WHITE PRIVILEGE: UNPACKING THE INVISIBLE KNAPSACK BY PEGGY MCINTOSH

    Podcasts

    Films

    • Slavery by Another Name (PBS Documentary)
    • 13th Directed by Ava DuVernay (can be found on Netflix)
    • When They See Us (can be found on Netflix)
    • Explained: The Racial Wealth Gap – Netflix
    • Time: The Kalief Browder Story – Netflix
    • Just Mercy – free to stream in June (YouTube, iTunes, Amazon Prime Video, Google Play)
    • Malcolm X (Netflix)
    • Hello, Privilege. It’s Me, Chelsea (Netflix)
    • Teach Us All (Netflix)
    • Hidden Figures
    • If Beale Street Could Talk (Amazon Prime)
    • I Am Not Your Negro (Amazon Prime)
    • Notes from the Field: Full Film (HBO, available on YouTube)
      In this adaptation of the Off-Broadway show, playwright Anna Deavere Smith dramatizes the accounts of students, parents, teachers and administrators affected by America’s school-to-prison pipeline, which pushes underprivileged, minority youth out of the classroom and into incarceration.

    Series

    • They Gotta Have Us (Netflix)
    • Hip-Hop Evolution (Netflix)

    Discussions

    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 

    Friday, May 22, 2020

    My Workplace is unsafe. Can I refuse to go to work?

    Whether your safety concerns arise out of the Coronavirus / Covid-19 pandemic or other safety violations at work, you need to proceed with caution both to protect your health and safety but also your continued employment.

    FEDERAL WORKERS:
    The Department of Occupational Safety and Health advice:

    If my workplace is unsafe, what can I do?
    If you believe working conditions are unsafe or unhealthful, we recommend that you bring the conditions to your employer's attention. At any time, a worker may file a complaint with OSHA to report a hazardous working condition and request an inspection. If the condition clearly presents a risk of death or serious physical harm and there is not enough time for OSHA to inspect, the worker may have a legal right to refuse to work. File a complaint here.
    More Information OSHA File a Complaint. OSHA COVID-19 Guidelines

    Washington Workers:

    Contact the Department of Labor and Industry for information about Washington State Worker's rights or to file a complaint for unpaid wages or safety violations: LNI Complaints.


    Washington Patients:

    Concerned about a Medical Facility or Provider? File a complaint with the Department of Health.

    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.


    Friday, May 15, 2020

    I'm afraid to go back to work because I fear exposure to Covid-19? Can I lose my job if I refuse?

    As the State of Washington considers opening businesses in a phased opening, many employees are concerned about their safety. Some will undoubtedly refuse to go back in asking for accommodation - greater safety measures or requesting to continue to work from home. What are an employee's rights? What can a employer demand? Well it depends.


    Employees should understand that if they have a disability they should ask for accomadation, however the legal  ADA PRECEDENT states that an EMPLOYEE IS NOT ENTITLED TO THE ACCOMMODATION OF HIS/HER CHOICE; ONLY TO A REASONABLE ACCOMMODATION

    Examples of reasonable accommodations may look like:

    Additional or enhanced protective gowns, masks, gloves, or other gear beyond what the employer may generally provide to employees returning to its workplace.
    Additional or enhanced protective measures, for example, erecting a barrier that provides separation between an employee with a disability and coworkers/the public or increasing the space between an employee with a disability and others.
    Elimination or substitution of particular “marginal” functions (whether on an alternative or temporary basis).

    For example, a worker doesn't want to go to work and risk accommodation b/c my souse is a cancer survivor and infection could kill them. Normally the employer would have no requirement to accommodate that employee. However, employers should be careful there is case law supporting disability by association. Same as if a employee's souse is a nurse or doctor and other workers are afraid of exposure through that employer. to be continued....

    Employers can get more legal information from https://www.cozen.com/coronavirus-updates 

    Thursday, May 14, 2020

    If I've had, or been exposed to, Coronavirus / Covid-19 am I immune? If I am immune, for how long do I have immunity?

    This morning I attended a webinar: Straight Talk: Health care leaders, researchers provide update on state of care amid COVID-19

    Speakers were: Geoffrey Baird, MD, PhD: Pathologist and Interim Chair of Laboratory Medicine, UW Medicine; Director of the Clinical and Toxicology Chemistry Laboratory, Harborview Medical Center Nancy Davidson, MD: President & Executive Director, Seattle Cancer Care Alliance; Senior Vice President, Clinical Research Division, Fred Hutchinson Cancer Research Center; Head, Medical Oncology, University of Washington George Haddad, MD: Co-founder, COVID Response Partners Jeff Tomlin, MD: CEO, Evergreen Health.

    What I wanted to know was when antibody testing will be widely available in the Seattle area and if being exposed to, or acquiring the virus and surviving, will create immunity to future exposures.

    Unfortunately, the answers were that testing is coming but supply chain issues remain a problem (not enough swabs). So it is slow. Also, we wont know about the immunity question until after testing is wide-spread.

    Interesting information: One patient has been asymptomatic (no symptoms) but has now tested positive for the virus for 72 days. Those numbers are scary because this patient had no reason to know they were infected felt fine (related to those symptoms but was hospitalized on unrelated issues) they otherwise could have be walking around infecting others without knowing it. This is why masks are important even if you feel fine.

    Dr. George Haddad said, testing will bring on a new level of chaos. The testing is just one step and we need to figure out the best test (no false negatives or positives). Talked about testing workers everyday. (not practical with the very uncomfortable nasal swap test.)

    Are Doctors offices and hospitals extra dangerous right now? Dr. Nancy Davidson says ironically these places are safer than normal b/c of the screening in place and the heightened vigilance. Suggests getting your routine health care and go to the ER if you need emergency help. Dr. Baird says doctors and researchers know how to use PPEs and to not cross contaminate. 

    Should you avoid going to the hospital or Doctors office to conserve resources? There is capacity at local Washington hospitals and ER departments to take care of you. With the cancellation of elective procedures there is no overwhelm of the medical systems in Wa right now - if you need help get it.


    Back to work - Best Practices - Business must act like a hospital
    Psychology of the Pandemic - get over it with knowledge and education
    New normal - never go to work with the sniffles.
    Screening for fevers
    Hand washing
    Disinfecting
    Not touching your face
    Productivity - EEs must feel safe to go back to work
    A lot of people will need or want to go back to face to face work other organizations are realizing that they can do more than they thought remotely.

    Financial health of the medical system -  necessarily devastated had to do it to save lives but we need to open things back up and start making up for the millions in losses. But the system needs to be overhauled so it is not so vulnerable to things like this.

    Contact tracing and tracking?  If you have an employee who is positive when does the State get involved to track and trace?
       Geoffrey Baird - Research:  Alaska Fishery business - isolated population on a boat - study showed asymptomatic carries. Also in meat packers in Eastern Washington etc. learning a lot and its pretty scary. Your risk factors  are unique to your circumstances. 1990 football team Norovirus showed play by play almost contact and viral transmission. 

    Dr. Haddad - you have to do baseline testing to get the information we need. Look at how other countries are doing it and what is working: see South Korea and Germany Berlin research facility doing interesting things. What is happening in other countries - embrace the complexity stay curious and seek the science to solve the problems.

    Will we see a spike in numbers in the fall? Will PPEs  be scarce again? Cleaning supplies and masks. 

     


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