Saphronia

LOSING YOUR JOB – POSSIBLE CAUSES, APPROACHES, AND LOOKING FORWARD

Receiving the news that you lost your job is shocking and sometimes downright depressing.  I’ve seen too many clients in this position in the last year who have excellent evaluations, numerous customer compliments, and really good numbers for objective performance measures (such as sales, profits, or whatever objective measures the employer may use).  What then, is the explanation?  In many cases, you may never know.  Employers are reluctant to give you the real truth about this.  Employers can behave toward the separated employee the way a super-model treats a nerdy admirer, “If I tell you why we cannot be together, you’ll just want to argue that you can change — and we both know that you can’t.”

But if you are to have career success in future, it may be important to find out the real story.  I have myself been reluctant to tell people the truth, which usually — and counter to what most people believe — has nothing to do with job performance.  These are also truths that job candidates sometimes do not want to face.  If you want the position, however, you need to acknowledge the fact that you are part of a larger culture.  We all have biases, and we ALL have less than perfect appearance, personal habits, maturity, personal lives and the other myriad ways in which we judge each other.  Your challenge is to find out which of your less than sterling qualities caught the attention of your co-workers, supervisor, or Human Resources department.  Here is a partial list of items I have collected from professional and personal experience over the years:

1.  Did her job well, but spent too much time on the telephone with her personal matters.  I don’t care that it was on her breaks.  I didn’t want to hear her making dates, disciplining her whiny kids, or talking to her mother.  [The person about whom this was said was incredulous — that WAS on my break time.  It never affected my job performance!  Can they fire me for that?  ANSWER:  Unless protected by a union contract or civil service rules governing public employees, the answer is YES.]

2.  He hit his sales numbers, but he sent emails out that were angry, hostile and eventually felt threatening.  [The employee responded, “I was angry because my co-workers were consistently violating the policies that impacted my own job performance and evaluations.  Can they really fire me for that?”  In his case, no.  He was a civil service employee, and termination for top secret reasons  unrelated to job performance violated the civil service rules.  He was reinstated, but now knew that his co-workers perceived him in a very negative way.  He did not stay in that job long, and he learned to approach this problem differently in his new position.]

 

How do you find out what the REAL story is?  You can: (a) Ask your employer for a truly meaningful exit interview.  Advise, “I obviously made some serious mistakes here.  I understand and accept that I need to move on.  For me to do that, can you please be very honest with me about my shortcomings?  It clearly isn’t those specific items listed on my performance evaluations.”  (b) You can send a written request to your employer demanding the reason for your termination.  The letter can be perceived as a pre-litigation device, however.  It is less likely to be a serious, in depth and helpful response.  (c) You can, and should, ask your former supervisor and co-workers for their feedback.  Let them know this is purely for your own personal and professional growth, which you take seriously.  Do not hint that since it wasn’t performance related it “must” be some type of discrimination.  That mind set is common, but isn’t true.  You are just as likely to be fired for poor personal hygiene, refusal to wash your own dishes, angry outbursts or hostile emails as you are to be fired for specific performance-related issues.

In Washington state, as in most states, termination for poor inter-personal relationships and lack of good judgment in any specific occasion is a legal basis for termination.  Even civil service employees can be discharged for this if the proper steps are followed.  Many employers have difficulty facing the terminated individual and saying, “Honest to goodness, I just couldn’t be in another meeting with you when your breath is so bad and your clothes smell like cigarette smoke.”  It becomes your own sleuthing responsibility to figure it out.  If you cannot without assistance, then it may be a good career investment to hire a professional to help you with this in an honest, but compassionate, manner.

If you STILL believe that the reason for your termination was unlawful (based upon your race, religion, sex, sexual orientation, disability, pregnancy, whistelblowing, etc.) — THEN you will have more success engaging counsel to pursue it if you have worked through the above exercise.  Good luck!

JOB OPENINGS LOCALLY

 

To view the full job posting for any opening at King County, click here:

http://agency.governmentjobs.com/kingcounty/default.cfm

 

To view the full job posting for any opening at State of Washington, click here:

http://agency.governmentjobs.com/washington/default.cfm

 

For local jobs with the federal government, you have to sign up for a national job listserve, and then delete where no local jobs with your own skill set are sent.

USAJOBS site directly at http://usajobs.gov

MEDIATION BASICS

King County and Pierce County now require mediation prior to trial for most disputes.  What is this process, and why is it required?

Mediation is an opportunity for the parties in dispute to have a conversation either through, or with the assistance of, a neutral and trained mediator.  Mediation is frequently and surprisingly successful, given that the same parties were previously so unable to reach a resolution that court proceedings were instituted.

Mediation must be distinguished from arbitration and from litigation.  Arbitration is a very formal trial-like process where an architect, attorney or other trained professional actually hears evidence and renders a decision.  Arbitration is usually required  when a contract provision so provides, or where particular industries that utilize interstate commerce are at the core of the dispute.  Mandatory arbitration under statute and court rules apply to many cases, but not all.  This varies upon the amount in controversy, the relief sought, and whether other statutes specify that the case must be tried before a judge.  Witnesses testify, exhibits are offered into evidence, and the submissions of briefs to the arbitrator make the process very much like a trial.

Litigation is a formal court process before a judge or jury, with witnesses and documentary evidence to support each party’s case.  Litigation of most disputes is open to the public, and a recording or transcript of the proceedings is made.

Once in the mediation, each party is usually given its own space to meet as a team consisting of the party, that party’s  attorney, the expert (if any), and key witnesses.  The mediator will sometimes start the parties in a common room for introductions, before breaking out into private sessions.  Some mediators assess the situation as not appropriate for a common session (for example, in highly emotional cases involving sexual harassment, bitter custody disputes, allegations of fraud, etc.).  The private sessions are to assist each party with assessing settlement offers and demands, with the private expertise of legal counsel, expert, and key witnesses.

The benefits of mediation are that the parties are able to fashion contractual remedies and agreements for themselves that arbitrators, juries, and judges cannot impose.  It is a favorite quote for judges to say, “The court cannot fashion a remedy for the parties that they did not fashion for themselves.”  Mediation is an attempt to do exactly that…the parties themselves are in control of the outcome.  If you do not receive an acceptable offer, you leave the mediation and proceed with the arbitration or litigation process.  If you do receive an acceptable offer, a new agreement is drawn up between the parties to utilize going forward.

The selection of the mediator can be critical to whether the case settles.  A mediator with expertise in the particular area of the dispute can be extremely useful to open up the world of possible solutions to the thorny problems that brought the parties into dispute.  If your mediator actually worked as a realtor for twenty years, then served on the ethics panel, then served as a financing broker for the real estate division of a bank, this mediator would bring a unique skill set to your real estate dispute, but possibly very little substantive expertise to your employment dispute.  Even so, training in conflict resolution, building trust, drafting lasting agreements, and just maintaining a peaceful presence often does the trick.  Don’t write off the mediator for lack of specific technical expertise.

Mediators attempt to move the parties from blaming each other for what happened yesterday toward a focus of moving forward efficiently, cost-effectively and into a lasting resolution.  The success rate of mediation remains at over 90%.  It is therefore usually a good use of time and money.  The same cannot often be said for litigation, but obviously where another party refuses to recognize their own obligations, litigation and arbitration are sometimes required to preserve rights and enforce remedies.

COURT VALIDATES GIFT OF REAL ESTATE BY QUIT CLAIM

YAY!  Please indulge me in expressing sincere happiness for my clients who recently won their case on appeal with the excellent assistance of Ken Masters and Shelby Frost Lemmel.  I was trial counsel for this matter, and we fought hard at trial to defeat the claims of breach of an oral contract to devise, duress, unconscionability and fraud that were claimed by the disappointed parties that believed they would inherit a cabin.  Instead, when the decedent finally died, they learned that he had quit claimed the property to his nephews, my clients, before his death.

The trial court found that although the allegations of fraud, duress and unconscionability would not stand, the quit claim deed was not valid because it had not recited “consideration.”  We argued that no consideration was necessary for a quit claim deed.  The trial court disagreed, stating that the standard form in Washington requires it.  My client appealed, and chose the law firm of Ken Masters to handle that.

What an excellent choice!  Ken and Shelby utilized recent Washington case law to point out that the requirement of consideration in a quit claim has never been imposed.  You can read the opinion at:  http://www.courts.wa.gov, and it is styled:  “Dennis Bale, Respondent / Cross-Appellant v. Robert E. Fletcher, Appellant / Cross-Respondent.”  The opinion was released on February 11, 2013, Division I, Docket number 07/08/2011.

 

WAGE CLAIMANT WINS PARTIAL SUMMARY JUDGMENT

Both Washington law and federal law are clear that simply calling a wage earner an “independent contractor” does not make it so.  We recently won a partial summary judgment in our client’s favor by demonstrating that the written contract, the business license, and the requirement that he submit invoices in order to be paid his wages were sham constructs devised by his employer.  The court reviewed the evidence and agreed.  We now will proceed to trial on the only issue remaining — how much he is owed.

This firm advises clients on both sides of the employment table.  We routinely advise business owners that the manner in which parties themselves approach the relationship will govern whether it is legally found to be a true independent contracting relationship.  If you are a business owner and you need help to achieve your business objectives, seek the guidance of an attorney to determine what is — and what is not — likely to be viewed as a truly independent relationship.  The old “control” test has been set aside for the newer “economic realities” test.  If this position is the sole or primary means of supporting the wage earner, it is likely to be found as employment and not independent contracting.

Paying payroll taxes, overtime, and insurance for employee conduct is a challenge for small businesses.  There are benefits to both employment and independent contractor relationships.  Seek good counsel to determine how far you can go, IF you can go, in either direction.

If you are a wage claimant, do not be discouraged by the fact that you signed a document stating you are just an independent contractor, and have agreed to be paid if and when the owner is paid for your work.  Such agreements are not enforceable if you truly were employed by the business and dependent upon your earnings there as a sole means of support.

ENGINEER SUED FOR REFUSING TO ALTER REPORT DISMISSED FROM CASE

I recently had the pleasure of giving my client the good news that he was dismissed from litigation “with prejudice.”  This meant that he was out, for good.  The homeowner that sued him could not re-file the claim against him after trying to find evidence to support her claim.

The homeowner bought the house as a “tear down.”  However, her project turned more expensive and complicated than she had anticipated.  After firing the first contractor, she engaged a new general contractor.  That general decided to hire an engineer to monitor progress on the project.

As the homeowner believed the second contractor also did not perform well, she terminated him.  She then demanded that the engineer alter his report to reflect her own view about the second general contractor’s work on the project.  If he refused, she would sue the engineer.  The engineer responded that the report was accurate, and he refused to alter it, even to avoid being sued.   Eventually the project ended up in litigation, and the homeowner sued three of several contractors she had hired on her project, and the engineer.

As they say, “Happiness is not whether you win or lose, it’s how you place the blame.”

In this case, however, the engineer had no contract with the homeowner, and had not designed the plans and specifications for the project.  Those recommendations that the engineer had made after the homeowner expressed her unhappiness had been rejected, because they would have required even further investment in the project.  The engineer engaged me to defend him in the suit.

The engineer argued that he had no contractual duty to the homeowner, as his client was the second general contractor.  He argued further that the real reason he was sued was not because he did anything wrong on the project, but because he had refused to cave to the homeowner’s pressure to alter his reports.  The engineer maintained that his reports were accurate and therefore he had no duty to alter them.  Accurate reports could not form the basis of any misrepresentation claim, either.

After filing the motion for summary judgment, the homeowner’s attorney acknowledged the complete lack of evidence supporting the claim against my client.  Although a year to defend an unwarranted suit was too long (the plaintiff changed attorneys three times), the final result was complete and total vindication for the engineer.

I am very happy to have been able to provide this result to my engineer client.  The cost to defend the litigation for over a year, including multiple sets of discovery, a site visit, and the drafting of the motion for summary judgment,  came to less than $10,000.  While that seems like a lot to an engineer that was paid far less than that on the project, his reputation and professional integrity emerged intact.  Sometimes, happiness IS whether you win!

 

AGE DISCRIMINATION — The Statistics are In, and It May Not Be “You”

When a person over the age of 50 loses a  job, it is natural and obvious for a Human Resources consultant to view the job history and focus on the one thing that the worker and consultant can change — the profile of the worker.  More training, a better resume, a new look, some better “people” skills, and new interviewing skills can all help.  Moreover, those are things all within the worker’s control.  When you’re down, the impulse is to DO SOMETHING.  Following that impulse can make one feel better, more in control, and provide a positive outlook that translates to a brightness and warmth during job interviews that will translate well.  This positive outlook can even be transmitted in the way one composes a cover letter and the word choices the worker adopts in resumes.

However, it is discouraging to go through all of those processes and realize over time that the percentage of interviews is not increasing, or the percentage of second interviews is not increasing, and certainly the percentage of offers is not increasing.  Sometimes, it is uncomfortable to confront the reality that, “it isn’t you.”

The New York Times published an article on Sunday, February 3, 2013 (available on-line) supporting this reality with the statistics available from the federal Department of Labor for the post-recession hiring data.  The reality is that the bounce-back after losing a job for a person in their fifties, most definitely, is statistically low.  One woman in her early fifties is quoted as saying, “they see the gray hair…” and it’s over.  The fact is, most employers are savvy enough to not say, “You look kind of old for this position,” but the reality is that older workers are not favored, for a variety of reasons mentioned in the article.

I will mention another reason, and that is that older workers can be, or are perceived to be, less flexible.  While I personally enjoy working with folks my own age, and enjoy the wisdom that years of experience bring, I know that my own attitude has changed dramatically away from “I’ll scrub the toilet if you say it’s part of my job description” to “I don’t think so.”  With added years come a sense of some entitlement.  However, many older workers do not have that attitude, and it is unfair to blanketly assume that they will not be as eager to follow directives, take instruction, or learn new skills.

What are your options?  A good HR consultant will already have assisted you with: (1) confronting that bias head-on, both in your cover letter and in your resume.  Use specific language that highlights learning new technology, new skills, and seeking out new assignments and information.   (2) Highlighting very recent achievements, even classes that you have taken outside the work place, even if it is yoga or karate.  (3) Emphasizing your ability to work with and take direction from all levels of the team, and to get along with a very diverse work place.  While some people think of diversity in terms of racial or religious contexts, you can specifically state that your last work place had a diverse group of all ages (if that is true).

If you still meet with resistance, consider starting your own consulting business.  DO NOT do this without getting some legal assistance up front.  An hour with an attorney to help you understand the differences between true employment and independent consulting is important.  Without this, you cannot possibly know how to accurately and yet competitively price your services.  In addition to meeting with an attorney, understand that the law on this — while fairly uniform under federal statutes — is NOT uniform under state laws.  Simply reading up on the internet has led many a person to make critical mistakes.

Being your own boss is sometimes not easy, but for many workers, failure is not an option.  Retirement at age 66 may still be over ten years away.  Working to generate business, send out invoices, track payments, market and advertise, stay on top of assignments, etc. are all part of the turf that may be very new to somebody that has been “in corporate” for over twenty years.  But those years of experience are valuable.  The company that did not want the older employee may be willing to pay a premium for that expertise, without the potential headache of dealing with the new employee who won’t take direction from the younger manager.  Of course, the consultant almost always bows to the directive of the client — there is no question who holds the reigns of power in that relationship.

Additionally, the issues of benefits, insurance premiums, taxes, and other employment hassles do not exist with the independent consultant relationship.  Instead, there are delicate matters of confidentiality, intellectual property, non-compete agreements, bonuses for hitting targets or deadlines early, and other matters that are a “given” with true employees in some industries that must be negotiated with truly independent contractors.  But sometimes, the only thing to fear IS fear itself.  Take the initiative, and give it a try.  If YOU are willing to invest in you…eventually, others will too.

 

 

 

 

PAY IF PAID, PAY WHEN PAID, PAY WHEN THE GENERAL FEELS LIKE IT?

“Pay if Paid” clauses impose the risk of an Owner’s nonpayment upon the subcontractor, at least with respect to that portion of the work.  For example, if the Owner approves, accepts and pays the general contractor for 70% of the payment application, but withholds 20% due to a claim that the installation of the tile in the rotunda was defective, (and then holds 10% for retainage), every subcontractor that performed work within the 70% that was approved is entitled to prompt payment.  The tile subcontractor is entitled to Notice that its work was not accepted, specific information as to the basis for the rejection, and the prime contractor must follow the notice provisions for rejecting the work as set forth in the parties’ subcontract.

That analysis is not difficult.  But what happens when the Owner does not reject the work, but the subcontractor is advised that the Owner has simply not paid the prime contractor, and accordingly, the prime asserts that it does not owe the subcontractor?  Is the “pay if paid” provision sufficient to deny prompt payment to the subcontractor?  ANSWER:  It depends, but I personally believe that it is very risky for a prime contractor to refuse payment to a subcontractor absent specific evidence that the Owner has reasonably rejected the subcontractor’s work directly related to the payment being withheld.

A “pay if paid” clause must be very specific to be enforceable.  Amelco v. Drake, 20 Wn. App. 899, 583 P.2d 648 (1978)(a “pay when paid” clause means that payment is still due within a reasonable period of time).  Specifically, the phrase “condition precedent” must be used.  However, the issue of whether “pay if paid” contract clauses are valid has not yet reached the Supreme Court of Washington.  In W. States Paving Co. v. Pease & Sons, Inc., 132 Wash. App. 1034 (2006) the issue came up, but the Court of Appeals declined to address it directly.

The cases so far reflect that “pay if paid” clause and “pay when paid” clause are two contract provisions that Washington courts view skeptically, and interpret narrowly.  The evidence of the following questions should be reviewed in determined the course of action each party is entitled to take:

1.  Is the contract payment clause clear, certain and unambiguous?  [If not, then the court can consider the entire context of the parties’ negotiations, and can interpret any uncertainty against the party that drafted the agreement — usually, the prime contractor.  This is known as the Berg rule].   In Washington, several statutes require prompt payment of construction work, including:

a.  RCW 60.04 — mechanic’s lien statutes.  There is a specific statute invalidating any contract clause that would prohibit assertion of mechanic’s lien claims in advance of those claims arising.  Thus, a “pay if paid” clause would appear to be in contravention of that statute for all contracts on private construction.  This assumes that the anticipated work would otherwise be lienable (permanent improvements to real property and structures upon real property).

b.  RCW 39.04.250  is the Washington State Prompt Payment Statute governing public work.  While it doesn’t specifically prohibit any particular contract clause, the public policy to encourage good contractors to continue working upon public projects is only furthered when such contractors can be assured of reasonably prompt payment.  Contract clauses that subvert that purpose should be (and are) viewed very skeptically by the courts.

c.  RCW 4.24.360 prohibits any  “no damages for delay” clause  eliminating claims for delayed performance in advance of that occurrence.  The prime contractor’s performance includes payment to the subcontractor(s).  Therefore, any construction clause that prevents the subcontractor from asserting claims for delayed payment would be void.

d.  Cases governing sureties as insurance companies in Washington have imposed attorney fees upon payment bond sureties that forced claimants to file litigation to obtain the benefits of the bond.  The attorney fees are called, “Olympic Steamship” fees.  Washington law requires prompt investigation of payment bond claims, and a prompt “pay– or deny and explain” approach to claims handling practices.  See, e.g., RCW 48.01.030.  Payment bonds are typically available only on public work projects or very large private projects in Washington state.  They stand in the place of mechanic’s lien rights, available on private work.

2.  Additionally, even if the contract language itself clearly and unambiguously places the risk on the subcontractor, one will want to consider whether the subcontractor agreed to the “pay if paid” clause prior to submitting its bid and having its bid accepted?  IF NOT, did the prime contractor offer any specific new consideration to support this change in the contract terms?  (Usually, contract change orders require the parties to exchange something new for the contractual amendment to be effective).

3.  Do other circumstances indicate a wrongful purpose in the withholding of payment?  If so, any litigation will involve the facts and evidence to support or oppose such claims, making the liklihood that the litigation will be more costly and protracted for the parties.  This takes the profit out of delayed payment for the contractor and gives the payment bond surety or the Owner facing mechanic’s liens reason to believe that it will be paying claims, and seeking recovery from the possibly insolvent prime contractor.  Prompt payment of the legitimate documented claim is usually the wiser course for every party above the claimant on the contracting chain.

 

 

WRONGFUL TERMINATION BASICS

1. Do you work for a public entity (the federal government, state government, local government, school district, hospital district, etc.)? If not, then:

2. Do you have a written employment agreement such as an offering letter, an actual contract, a collective bargaining agreement? If not, then:

3. Do you have an employee policy manual that actually indicates you have the right to certain procedures before being fired? (This is very rare, by the way).

IF NOT, then:

A. You are likely among the majority of Americans who have no “right” to continued employment.

B. This is true even if you have done an excellent job and have stellar performance evaluations and reviews.

C. The exception is if you have actual evidence that your termination was based upon a protected status. This is also fairly rare.

Review the facts before calling an attorney. Be honest with yourself. Termination from employment is difficult, disappointing, and financially crushing. However, an attorney will want the facts before meeting with you, and may require $100 to $250 just to meet and review your facts.

Review your payroll records. Ensure that you were properly paid, including prompt payment by the next payroll cycle for your final wages, and any benefits that you are entitled to be paid even after termination. (This often does not include vacation pay, sick pay, and other benefits except in special cases).

Cheaper counseling, to tell your story and get it off your chest, is available. Talk to a therapist (usually less expensive, often more effective in this situation).

If you remain convinced that your termination was wrongful, gather ALL of your documents. Write to your employer, and send your letter by certified mail, requesting a fully copy of your employment file (including any supervisor’s files). You also have the right to request a written reason for your termination. Keep a signed copy of your letter, and staple the green mailing receipt to it when you receive it back from the post office.

If you truly believe your termination was wrongful, and you believe it was discriminatory, IMMEDIATELY report your belief and the evidence supporting it to the EEOC or state HRC. Both have excellent websites.

After securing your administrative rights by filing your discrimination complaint, contact experienced employment counsel. Do not make a bad impression by calling before you have taken the above steps. The factual, direct, concise approach will be more compelling to your potential counsel.

Be honest concerning any problems with your case. If you had numerous warnings about being late, or absent, or with your performance…say so. Otherwise, you will simply waste your time and the attorney’s. This will not make your case impossible, but it is something that must be dealt with immediately. Your attorney cannot confront what s/he is unaware needs to be managed.

PROMPT PAYMENT ACT – PUBLIC WORKS CONSTRUCTION

All subcontractors in Washington state should be familiar with our “Prompt Payment Act,” below.

It grants the subcontractor a right to be paid within TEN DAYS of the prime contractor’s receipt of payment from the public body owner for that scope of work.

If not, both attorney fees and interest are conferred by this statute, even if the contract is silent on those rights.

Today, “pay if and when paid” clauses are abundant in public works contracts. If you have performed work on a public project, and your work has been accepted, use this statute in every demand letter.

Remember to copy the prime contractor’s surety. If they are from out of state, they may not know about this law.

Also, do not forget to file your payment bond claim with the public owner. After 30 days, you can file suit and have a second statutory basis to recover your attorney fees. This increases your legal team’s ability to negotiate from a position of strength, and to get full recovery for you should negotiation fail.
=============================================================
39.04.250
Payments received on account of work performed by subcontractor — Disputed amounts — Remedies.

(1) When payment is received by a contractor or subcontractor for work performed on a public work, the contractor or subcontractor shall pay to any subcontractor not later than ten days after the receipt of the payment, amounts allowed the contractor on account of the work performed by the subcontractor, to the extent of each subcontractor’s interest therein.

(2) In the event of a good faith dispute over all or any portion of the amount due on a payment from the state or a municipality to the prime contractor, or from the prime contractor or subcontractor to a subcontractor, then the state or the municipality, or the prime contractor or subcontractor, may withhold no more than one hundred fifty percent of the disputed amount. Those not a party to a dispute are entitled to full and prompt payment of their portion of a draw, progress payment, final payment, or released retainage.

(3) In addition to all other remedies, any person from whom funds have been withheld in violation of this section shall be entitled to receive from the person wrongfully withholding the funds, for every month and portion thereof that payment including retainage is not made, interest at the highest rate allowed under RCW 19.52.025. In any action for the collection of funds wrongfully withheld, the prevailing party shall be entitled to costs of suit and reasonable attorneys’ fees.
[1992 c 223 § 5.]