Three Arguments to Bring a Discrimination Suit When Suing Is the Right Choice

Why would you file a suit for discrimination or harassment at work? You’re a peace loving person who just wants to do his or her job, and go home to enjoy the family. Besides, you ask yourself, how can I prove it?

There are three reasons to file a case for discrimination:

1) Your efforts to enter an early dialogue and resolution of your employment grievances have reached an impasse despite your best efforts to be transparent and reasonable;

2) You know the company treated you unfairly in deciding to let you go, and you strongly suspect, even if you cannot put your finger on it, that it was because you were an older worker, or that you took some time off for a serious health condition, or because you weren’t a member of the “old boys” club.

3) You have obtained expert legal counsel who informed you of the strengths and weaknesses of your case, giving it to you straight. Your questions about financial costs, and risks of losing were answered forthrightly, and you’re ready to make the investment.

This third reason includes an assessment of just what you have to prove in a discrimination case. The fine point here is this: indirect and circumstantial proof is sufficient. In other words, extracting an admission, or obtaining a private email or memo stating a discriminatory motive in firing someone is not a requirement of the case.

The reason is practical: discrimination is seldom a moment of pride for an employer. The manager who makes the discriminatory decision is likely unaware of his or her own bias, or is very hesitant to admit it to himself or anyone else. The sparsity of direct evidence means that many real cases of discriminationn would never be presented or proven, and therefore discrimination at work would go unchecked.

As a result, the courts have designed the following basic elements of a discrimination case: a) that you are in a “protected” category; b) that you were performing your work satisfactorily; c) that there was remaining work for you to perform; d) that someone outside your “protected category” assumed your job responsibilities, and d) that you have suffered financial and/or emotional injury as a result.

It’s that simple, and that incomplete. The burden of proof has been met, but the employer may overcome that proof with evidence of its own that the reason for termination was business necessity. That burden is fairly easy to meet.

The game-changer in the trial of a discrimination case is to prove that the reason is not only a lie, but likely a lie intended to cover-up a discriminatory motive. Are we back where we started with a requirement of direct proof? No. Only some additional corroborative evidence of discrimination is needed. For example, a manager may have made an off-handed comment that “Bob, you seem to be slowing down. When will you be retiring?” or maybe there is an email that refers to the need to recruit new youthful energy into the organization. These are not “direct” statements, but they are relevant to the question of discrimination, and courts have so held.

To conclude, you would file a lawsuit if your employer is stubborn in refusing to settle despite the uncertainty of “circumstantial proof” you or your attorney presents informally in an effort to reach an early settlement. As the case progresses, witnesses are interrogated, and documents collected, the employer may awaken to the risk of a significant verdict it could have avoided early in the process by listening to reason.

3 Common Employment Law Questions Answered

Sometimes employment law can be difficult to comprehend. Here are three common work place situations and their legal ramifications.

1: DISMISSAL DUE TO ILLNESS

There are three potential areas of legal exposure:

· unfair dismissal;

· unlawful termination; and

· discrimination

From time to time an employee will have to leave your employment due to long term health issues. They may decide to resign or you may have to eventually consider dismissing them. It is beneficial to consider as many ways possible to help them back to work – dismissal should be a last resort and could be deemed unfair if not managed properly.

If continued employment is no longer achievable because there are no reasonable adjustments that can be made, it may be fair for you to dismiss them.

The Fair Work Act 2009 states that an employer must not dismiss an employee because the employee is temporarily absent from work due to illness or injury.

The Fair Work Regulation 2009 provides that it is not a “temporary absence” if the employees absence from work extends for more than 3 months, or the total absences of the employee, within a 12 month period, have been more than 3 months. The employer still requires a valid reason to dismiss the employee, even if the employee has been absent on unpaid leave for three months or over.

We suggest you ask the employee to provide medical information on his capacity for work and what support he might need to return to work.

2: EVIDENCE OF ILLNESS

You can insist on employees providing evidence that would satisfy a reasonable person that they are entitled to sick leave, for example, a medical certificate or statutory declaration. That being said there is no specific timeframe as the timeframe required is “as soon as practicable”.

For this reason you should devise a written policy that stipulates that your employees provide such information within a specific timeframe. Your policy should also specify that your employees inform their manager directly of their absence (when possible), or phone their manager within a certain timeframe to explain why they cannot make it to work and when they expect to return.

3: NOTICE OF REDUNDANCY

When dismissing an employee it is necessary to give them notice. The notice commences when the employer tells the employee that they want to end the employment. If you notify them of their redundancy just before leave, the time spent on annual leave will count towards their notice period.

What Happens After Filing an Initial Claim for Long Term Disability

Filing an initial claim for Long Term Disability (“LTD”) benefits is very time-consuming and exhausting for claimants. It is a juggling act of balancing the medical care necessitated by your disability, the down time needed for you to rest and heal, and the seemingly never ending requests for information and documents thrust at you by the claims administrator or insurance company. However, it is important to understand that once you are approved for LTD benefits, the juggling act does not stop there. Throughout the duration of your LTD claim, you will be subject to ongoing and period eligibility reviews. During eligibility reviews, the plan or its administrators will be reviewing your evidence to determine if you still meet the test for disability. If during the review, there does not appear to be enough evidence to support disability, your LTD benefits may be denied. Therefore, it is important to understand when such reviews may take place and how to advocate for your claim during an eligibility review in order to avoid wrongful LTD claim denials.

When will your claim be subject to ongoing eligibility reviews?

Unless your LTD plan states otherwise, approved LTD claims are typically subject to ongoing and periodic reviews for eligibility. This means that the insurance company or administrator can contact you throughout the duration of your claim to ask you for ongoing proof of disability including evidence like medical records, income and work documents, independent medical testing, social security documentation, functional capacity testing, and activities of daily living questionnaires. Unless your plan states otherwise, there typically is no schedule for reviews that must be followed or minimum amounts of time that must elapse before another review may be commenced. Pursuant to most LTD plans, when, how often, and for how long ongoing eligibility reviews take place is at the discretion of the plan and/or claims administrators. While an eligibility review and can typically occur at any time during the life of your LTD claim, such reviews most commonly occur when the test for disability changes, as defined by your policy.

Most LTD policies contain a test for disability that changes after the expiration of a period of time. Generally, most LTD policies require you to prove that you are disabled from working at your own occupation for the first 24 months of disability and then after that require you to prove that you are disabled from working in any occupation. You must read your individual LTD policy to determine your test for disability and whether or not it contains this time-based change. However, for policies that contain a time-based change like this, a new eligibility review is almost always commenced in the months leading up to the 24-month test change deadline. Depending on the administrator for your plan, you may even see this test change eligibility review begin as early as 6-9 months before the 24-month test change deadline.

How do you know when your previously approved claim is subject to a new eligibility review?

Unless your plan states otherwise, there is no formal notice that is required to be provided to you to advise that an eligibility review is taking place. However, many insurance companies and administrators do write to you and advise you that they are reviewing your claim for ongoing eligibility. Such letters are often accompanied by requests for documents or a notification that medical records have been requested from your doctors. Even if you have not been informed in writing that you are subject to another eligibility review, there are clues your can look for that often signal a review is taking place. If you have been receiving LTD benefits for some time and then suddenly the following requests or demands are made, it is likely that another eligibility review is taking place:

• Requesting that you or your physicians provide updated medical records;
• Advising you that previous requests for updated medical records were not fulfilled by your medical providers;
• Asking you to fill out an Activities of Daily Living or Disability Questionnaire form;
• Asking your physicians to fill out new Attending Physician Statements or functional impairment forms;
• Realizing that you are be followed or filmed by undercover surveillance agents;
• Receiving phone calls from a claims analyst asking you to provide oral updates on your medical conditions, activity level, daily routine, work history, and income;
• Asking you to allow a representative to interview you at a home visit;
• Requiring you to attend an independent medical evaluation (“IME”);
• Requiring you to attend a functional capacity evaluation (“FCE”); and
• Asking you to fill out functional capacity forms indicating how often and how long you can engage in specific activities.

While the above list is not exhaustive of all of the activities that might take place during an eligibility review, these are some of the key indicators that a new review is underway.

What should you do if you are subject to an LTD eligibility review?

When it comes to your LTD claim, you are your own best advocate and you should never become complacent about your eligibility status. This means that once you believe you are the subject of a new eligibility review, you must spring into action to make sure that all requests made by the insurance company for records, evidence, evaluations and testing are complied with fully. You should never assume that just because a letter requesting medical records or other documents was sent directly to your treating physician’s office that the office or physician will actually fulfill that request. One of the most common reasons that LTD benefits are denied during an eligibility review is because the medical provider failed to send updated medical records or failed to fill out a new attending physician statement as requested. Below are actions you can take to make sure that your LTD benefits are not denied as a result of an eligibility review:

• Do not become defensive or obstructive. During eligibility reviews most LTD claimants feel as if they are being harassed, picked on, or singled out by the insurance company or a claims analyst. As a result, they sometimes refuse to comply with requests, get argumentative with claims analysts, or do not bother to send in additional documents. Remember, claims analysts typically maintain notes about all of your conversations and you do not want to give them the opportunity to fill your administrative record with disparaging notes. Further, unless there is a provision in your policy prohibiting the actions or requests taking place, there is likely nothing you can do to prevent it. Ignoring or refusing requests for information or documents will almost always cause your LTD claim to be denied.

• Timely comply with all requests for documents and information. It is your responsibility to ensure that all medical records and documents requested are gathered and returned to the insurance company in a timely manner. If your disability causes you difficulty with your ability to gather and submit documents, you should contact your claims administrator and explain this or ask for additional time to submit documents if necessary. You should always keep a copy of anything you send in for your claim, with proof it was sent, in case it does not reach the appropriate claim analyst and you need to resend it.

• Follow up with your medical providers to make sure that they complied with all requests for documents or information. If you ever receive a letter indicating that your medical provider has not complied with a request for documents, you should immediately contact that provider about the issue. You must explain to your medical providers that if they do not comply with the ongoing requests for documents and information, your LTD benefits, and thus your monthly income and ability to pay for your medical care, may end. If you have concerns that your provider will not comply with the request, you should collect and send in the documents on your own. You may contact your doctor’s office or medical records department directly for information about how to request your medical records.

• Comply with all requests for IME’s and FCE’s. It may feel harassing or unnecessary to have to attend IME’s and FCE’s; however, if you refuse to attend you may be denied your LTD benefits. Before you attend, you should check with your treating physician to make sure that you are medically cleared to attend the evaluation or test. If you are not cleared by your treating physician to attend, you should inform the claims administrator and ask your treating physician to submit a written explanation of why you may not attend. If you are cleared to attend, you should ask to receive a copy of all IME and FCE reports so that you may review the medical information that the insurance company is collecting about you. Do not be surprised if you get resistance to such requests as some insurance companies have a policy that they will not release this information to you until the eligibility review is complete.

Remember, when it comes to ongoing eligibility reviews, you are solely responsible for ensuring that all requests for additional information are completed. If you become complacent or assume requests for information are being taken care of, you are putting your LTD benefits at risk. You must be the champion of your LTD claim.

ABOUT THE AUTHOR: Attorney Elizabeth Schmidt, Alan C. Olson & Associates, S.C.
Attorney Elizabeth Schmidt’s practice is devoted exclusively to the representation of plaintiffs in employment law and disability benefits matters. Attorney Schmidt advocates for the right of employees to receive wages, be free from discrimination, and have a safe and healthy work environment. Attorney Schmidt represents employees exclusively in employment law matters under state and federal laws including the Wisconsin Fair Employment Act, Americans with Disabilities Act, Age Discrimination in Employment Act, Family Medical Leave Act, Fair Labor Standards Act, and Title VII. I also assist clients in the pursuit of short-term and long-term disability benefits, including filing lawsuits under state and federal laws and ERISA. Attorney Schmidt works closely with each client to ascertain their individual goals and provide the information necessary to make informed decisions. Attorney Schmidt believes communication is the key to obtaining successful outcomes and client satisfaction.

How not to sugarcoat a bad employment report

UC Berkeley economist Brad DeLong calls “nuh-uh” on the Obama administration’s wan attempt to put the best face on Friday’s dispiriting employment report, pointing to the “absolute and total complete disaster” lurking not far beneath the “flat-lining employment-to-population ratio.”

Jason Furman, the White House chief economist, underscored that the private sector has added jobs for 46 consecutive months, though he could hardly avoid noting that the December figure was a meager gain of 74,000 (attributed by most to that all-purpose winter rascal, the weather). The overall unemployment rate is still “trending down,” Furman said, to 6.7% in December, the lowest since October 2008.

Furman acknowledged, as how could he not, that the sour note in the statistics is the rate of long-term unemployed (those jobless for more than six months), which is tenaciously high.

DeLong’s gloss focuses on a trend unmentioned by Furman, which is that the reason for the decline in the unemployment rate is that “labor force participation is falling.” If those dropping out of the labor force fail to return once the labor market strengthens, he observes, the harvest is “a permanent reduction in the efficiency of the American economy at matching potential workers who could use jobs with potential jobs that could use workers, and a permanent injury to America’s wealth and productive potential.”

This trend is hard to miss. As Heidi Shierholz of the Economic Policy Institute observes, labor force participation is at its lowest level in 35 years. She estimates the number of “missing workers”–those not actively seeking work but willing to work if jobs were available–at 6 million. If they were actively job-hunting, the unemployment rate would be 10.2%, not 6.7%.

What the White House numbers obscure is that the job market still stinks on a near-historic scale, for a recovery. There are an average of three job seekers for every opening, and the mismatch appears in virtually every economic sector–professional services, retail trade, mining and logging, construction, manufacturing, you name it. So this is not a mismatch of skills, but a dearth of opportunity across the board.

Shierholz points to the collapse of public-sector employment as a leading culprit. Austerity took hold in the public sector just as state, local and federal government employment was most needed to pick up the slack of declining private jobs. Since June 2009, she calculates, the public sector has lost 728,000 jobs. To keep pace with population growth, the sector should have grown by 750,000. About one-third of the devastating gap of 1.5 million jobs has been in local government education, mostly K-12. The budget assistance offered state and local governments through the federal stimulus program ended in 2011, and this is the outcome.

All these factors give the lie to the conservative notion, put forth by people like Sens. Rand Paul, R-Ky., and Marco Rubio, R-Fla., that it’s the availability of unemployment benefits that is suppressing employment growth. We’ve dealt with their fatuous arguments here.

They seem to think that if these slackers simply were kicked out of the hammock represented by jobless benefits, they’d get cracking and find jobs. The hard, cold figures show that there aren’t enough jobs. As a result, the cutoff of benefits foisted on the long-term unemployed by an indolent Congress only has the effect of reducing economic demand further, which makes it harder for them to find jobs.

The Congressional Budget Office quantifies this effect. Continuing the emergency unemployment benefits through the end of this year, it says, will increase gross domestic product by as much as 0.3%, and employment by as much as 300,000. What it’s telling Congress, in other words, is, if you want the dismal employment picture to continue, fellas, just keep doing what you’re doing. Which is: nothing.

Preventing Sexual Discrimination in Chinese Employment Law

Although China has established laws to ensure fair treatment and equality in the workplace for all its citizens, the country is still some way from achieving employment laws that match the western world’s treatment of employees.

Discrimination in employment is not a new occurrence in The People’s Republic of China, but as the country continues its recent progression of economic and social reforms, the Chinese government has increased its desire to end the sexually discriminatory employment policies that exist throughout the country. This includes upholding laws that forbid jobs to be advertised with gender specific requirements, like those that state applicants should be “male only” or “male preferred”.

A recent example of legal action against the unfairness of China’s labour and employment laws occurred in Beijing, where the private training institute Juren School was sued by a young female job-seeker named Cao Ju, who asserted that her application for the position of ‘administrative assistant’ was snubbed at the expense of the company’s preference towards male hiring employees. This is an unquestionable case of discriminatory behaviour as the job advertisement published on the internet clearly stated that men only need apply. Miss Ju sued for RMB 50,000 (£50,000) compensation and demanded an apology for her sufferance. The case was eventually settled by both parties in December 2013, with an apology and recompense of RMB 30,000 (£30,000) being awarded to the plaintiff.

This case is of particular interest in recent Chinese employment law because it is considered to be a pivotal moment of change in China’s discrimination practices and a sign of the country’s positive social alterations. The employment law at the centre of this case is China’s Employment Promotion Law which was brought into legislation back in 2008. This law forbids sexual discrimination from existing within the Chinese employment process, but despite it being enforced for nearly six years, sex discrimination has often been overlooked. The Beijing case is acknowledged as the first time that the Employment Promotion Law has been genuinely upheld in a Chinese court, whereas past claims of unfair exclusion from job opportunities were not taken seriously by employment law solicitors.

It is hoped that the result of this case will not only end sexual discrimination in Chinese employment law, but also encourage other people who have been victims of other kinds of discrimination to come forward, regardless of the prejudice they have faced, thereby encouraging anti-discrimination litigation that will eventually bring complete equality to Chinese employment.

If you feel you have been on the receiving end of unfair employment law legislation, contact Nationwide Employment Lawyers to assess whether you are entitled to compensation.

Please note that whilst every effort is made to maintain accuracy of the content in this article; we cannot take responsibility for any errors. This author is not an Employment Lawyer or HR Specialist and this cannot in any way constitute a substitute for Employment Law advice. All facts should be cross-checked against other sources. Should you require specific Employment Law advice, then we recommend that you contact Nationwide Employment Lawyers.

Simple trick that will make people open your emails

I get more than 500 emails a day, on 4 different accounts. It’s hard to pay attention to all of them. There are emails you know you can ignore, and some you know you have to read. But there are so many you simply don’t know.

The trick to notice anything is for it to stand out. But how do you get an email to stand out? There are not too many elements to an email header that you can play with.

This reminds me of my first trip to Tokyo. The sheer amount of street advertisement was overwhelming. How can anyone see anything here? How can one advertisement stand out over the others? It was impossible for me to notice anything among all the colors and pictures all around me.

Except for one advertisement that caught my attention. I don’t even know what the street “sign” was for, but there were several people (live…) who were strapped to the building wall, playing soccer with a ball held by a string. This is how far you needed to go to grab my attention.

So what about email? There used to be a time when everyone used the “high priority” red exclamation mark to let me know that their email was more important than any other email in my inbox. Well, at least it was more important to them. And very soon, almost all emails in my inbox were marked with the red exclamation mark, and no single email was unique enough.

Related: 25 best jobs in America, according to the employees

What did I feel when I saw those emails? I felt that someone was thinking that their message was more important than anything else in my inbox. I felt they were arrogant, self-centered, and I developed an allergic reaction to those emails. Those would now be the email I open last. Not first.

But after a while, the percentage of emails marked as high priority declined, as we got desensitized to them, and they became less effective. One day I noticed a unique email. Instead of being marked as high priority with the red exclamation mark, it was marked low-priority, with the down blue arrow. I opened that email first. Why? For one, because it looked different. When 20% (or more) of my inbox was still marked with red exclamation marks, this one was the only one marked with the down blue arrow. Second, I felt that someone was telling me: “hey, I sent you an email, but it’s not very important. Get to it when you get the chance. Do your more important stuff first.” I felt that the sender was considerate of my time. He was not arrogant. On the contrary.

So I opened that email first. Even though it was the only one marked “low priority…” I looked at my inbox just now. I have 919 emails. 23 are marked high priority. None is marked with the low-priority down blue arrow.

Opportunity? Try to mark you next email with the down blue arrow. Until everyone catches on…

3 actually useful job perks you didn’t know you wanted

These days, it’s all about the perks: companies, possibly in lieu of an abundance of jobs or exorbitant salaries, have made an effort to outdo each other in the perk department. Netflix upped the ante in 2015 by announcing a year of paid family leave, and Facebook went as far as to offer egg freezing. And while those are certainly offers that will make you pause, the majority of us not working at the world’s most sought-after tech jobs may wonder what’s left on the table for the regular folk. Enter: these interesting offers.

While smaller companies struggle to present competitive packages to new employees, perks and benefits can be a great place of leverage for hirees. When there isn’t a lot of cash left over, it can be appealing for companies to take the hit in other forms of investment.

These may not be the perks you find in your next offer, but be inspired: great benefits are around the corner; you just have to know what you’re looking for!

College Classes

Your company may not have a tutor on hand to teach you the finer points of theoretical physics, but that doesn’t mean going to to work for a small company has to end your educational path. Companies would do well to take a page out of Starbucks’ playbook and create a college plan. With this perk, employees can take classes and get reimbursed as they advance their degree — a move that’s great for both the worker, and the business investing in their future.

Pet Bereavement Leave

It may sound silly, but it’s not the biggest morale booster when you’re taking an extra coveted vacation day off the books just so you can deal with your cat, dog, or tiger. And a surprising number of companies have figured this out: companies are now offering pet-specific time off. Kimpton Hotels & Restaurants in San Francisco even offers a three-day pet bereavement leave.

“Sabbatical”

Rather than just asking for a big block of unpaid time off, some employees leverage their dreams of “unlimited vacation” into a productive would-be sabbatical. Universities often pay their professors to take off time from teaching to work on something in their field — like a book. Likewise, Timberland pays its employees to take 40 hours off per year for volunteer work. You don’t have to be at the top of a lofty industry to take time and do good things.

Tell Us What You Think

What interesting job perks have made the difference for you? Are job perks just another classic example of how this younger generation wants a handout? Take your side in the comments below, or by joining the conversation on Twitter!

Equal Pay Act and the Civil Rights Act How Are These Related To Each Other

Discrimination has many forms and offenders have different means of doing it. This sad state of things has continued to exist. There might be a perceivable drop in the incidence of different forms of discrimination in the workplace. However, there are some discriminating acts, such as giving irrational differences in the pay given to different employees that actually deserve to get more. This is a more serious problem in a way because of its subtle approach that causes real, tangible effects to the victims of it.

The Equal Pay Act

Originated in 1963, this United States federal law amended the Fair Labor Standards Act that aims to abolish wage disparity based on sex. With this law, one receives equal pay for equal work. While there is no need for jobs to be identical, as long as these are substantially equal. All forms of pay are covered by this law. It includes salary, overtime pay, bonuses, stock options, profit sharing and bonus plans, life insurance, vacation and holiday pay, cleaning or gasoline allowances, hotel accommodations, reimbursement for travel expenses, and benefits. If a case of inequality happens, a company can never lower or reduce the wages of either sex just to equalize their pay.

Filing a complaint under the Equal Pay Act

If you think that you are a victim of this inequality in the pay you are receiving, you must go directly to court. You do not need to file a complaint with the Equal Employment Opportunity Commission (EEOC) first to be able to file the charges to the courts. However, there is a time limit for filing an EPA charge with the EEOC. Within two years of the alleged event of unlawful compensation practice. In case of a willful violation though, the time limit for filing a complaint is higher at three years. One must not forget though that the filing of an EEOC charge under the EPA does not extend the time frame for going to court.

The Equal Pay Act and Different Acts of Discrimination Connection

The Equal Pay Act and the different acts of discrimination are somewhat connected. People get unequal pays just because of their sex, age, race, ethnicity, religion, disability, and many other unethical reasons. Under the Title VII of the Civil Rights Act and the Equal Pay Act, these are clear violations and you can file charges against those responsible for such abuse. That is why these laws are very much interconnected to make sure that there would be no loopholes when these are implemented.

Everybody has rights. No matter what their color, age, sex, race, ethnicity, or religion, and even if they have disabilities. Everybody should be respected and be treated equally no matter what their looks or physical capability. And so, if you ever experience being harassed, discriminated against and looked down on you, never take things sitting down. File the necessary charges at one, present pieces of evidence to prove your claim and work with a good employment Lawyer and protect your rights now!

EmploymentAttorneyServices.com is a law firm based in Los Angeles, California. Our law firm has more than 15 years of experience in providing legal assistance to employers and aggrieved employees.

Don’t Follow Your Doctor’s Orders – Your Legal Rights As an Injured Worker

Rosalie is a bus driver. Before the end of her shift, on a particularly rainy day, Rosalie walked up and down the aisle to make sure that no personal belongings were left on the bus. She slipped in a puddle that had formed on the floor from the rain that had been tracked in from her route. Instinctually, Rosalie tried to break her fall by holding out her hands, which resulted in a fractured wrist. Fortunately, Rosalie did not hit her head, but she also strained her back when she fell. Because Rosalie had already returned to the bus station, she was able to yell for help and seek medical attention right away. It was obvious that Rosalie’s wrist was broken so she was sent to the emergency room right away which resulted in surgery to correct her fracture. While the surgeon told her that it would take about 6 – 9 weeks for her wrist to heal, she could start “light” duty at work and physical therapy after a couple of weeks depending on how well she was healing. After about 3 weeks, Rosalie returned to work and was given “light” office duty as she wouldn’t be able to drive bus for a while. When it was time for Rosalie to start physical therapy, she chose a doctor from the list of workers’ compensation doctors. At first, Rosalie struggled with physical therapy but she thought it was because it was new. After a week or two, Rosalie felt no change and she didn’t feel comfortable with some of her therapist’s methods. She chose a second doctor, from the list, who also seemed to do very little for her. After rejecting the company doctor, she found a different physical therapist (who was not a workers’ compensation doctor) and almost immediately saw and felt better results.

Because Rosalie chose a doctor other than from the Posted Panel of Physicians, her employer has warned her that the current cost of her medical expenses may not be covered, even though her injuries occurred while on the job. Rosalie had cooperated with her employer by choosing doctors from the posted panel, but felt like she needed to take action in her own hands, in order to stop suffering from the pain of her work related injuries. Rosalie does not want to lose her job or her doctor, so she has decided to seek legal advice.

What You Need to do if You are Injured at Work

If you are injured at work, you should seek medical attention as soon as possible. In the State of Georgia, an injured employee must be given the opportunity to choose a physician from the Posted Panel of Physicians and should be explained the Employee’s Bill of Rights (as provided by law). An employer is responsible for such procedures, in addition to reporting the injury, as failure to do so may result in a number of issues including employer penalties and an employee’s delayed return to the workplace.

While it is important for the injured employee to work together and communicate with the employer, medical care and treatment is the number one priority. If a worker is unsatisfied with the care received from a Workers’ Compensation doctor, another can be chosen from the list of physicians. An injured-on-the-job worker should not be held accountable for any of the financial responsibilities related to the incident. If you, as an injured worker, are unsure about your medical care or financial responsibilities, it’s best to contact a legal professional who has experience with Workers’ Compensation Claims.

If you have suffered an on the job injury, your only worry should concern getting better and healing, not the financial stress and worry of who will cover your medical costs.

Stopping an Employee Working for a Competitor – Do Restrictive Covenants Really Work

This is an issue that rears its head very regularly. The employer has invested a lot of time and resources in training the employee and providing that employee with experience that ultimately would be attractive to competitors. The general approach to such covenants is that the narrower the restriction the more likely such covenants will bind the employee. To illustrate that point, if the period of the non-compete clause is six months, as opposed to twelve months, and refers only to a competitor in, say, a local town as opposed to the entire State, then it is more likely that the restrictive covenant will bind the employee. That can fairly be described as the general approach of the law, but of course much depends on the facts of each case, and two cases illustrate that point.

In a recent Irish case the judgment does in my view illustrate the difficulties for employers. In that case the employee worked for a telecommunications company and there was clause in the contract that restricted him from working for a competitor for a period of 6 months. He was offered employment by a direct competitor,and gave notice of his resignation to his employer. The employer told the employee that he was prohibited from taking up his role with its competitor for a period of six months, and correspondence ensued between their respective lawyers. Both telecommunications companies reached an agreement which meant that the non-compete clause would be reduced to a period of just over three months. In effect, the employee would not be paid a salary for a period just in excess of three months. In a rather unusual twist, the employee through his solicitors brought an injunction to restrain his former employer from preventing him taking up his new employment. One must realise that injunctions are granted rather reluctantly by the Courts, particularly in relation to employment contracts, and it is generally accepted that an injunction will not be granted if damages, or compensation, is a more appropriate remedy. The judge, however, decided that there was a fair case to be tried, even though the only loss to the employee would be three months salary. The point this illustrates in my view is that the Courts in Ireland are reluctant to enforce non-compete clauses, and one reason for that is that the employee has a limited ability to negotiate when entering into the contract of employment. The employer has clearly greater bargaining power at the point of employment, so the employee has no option but to accept the restrictive covenants. That being said non-compete clauses do in my experience have a persuasive effect on the employee, and do influence the decision as to whether to leave to work for a competitor or not. All things considered, it is better to include a non-compete clause particularly where the employee will be privy to sensitive information and practices which could be of value to a competitor.

A recent English case does potentially give employers more cause for comfort with restrictive covenants. In that case there was a restrictive covenant in the employment contract preventing the employee for six months after he left the employment from working with any existing customer with whom the employer had business dealings. In August 2013, the employer lost a valuable contract to a competitor, and the employee resigned and in effect began working for the competitor providing the same services they had provided while in their previous employ. The former employer wrote to the employee pointing out that he was in breach of restrictive covenants and threatened an injunction if the employee did not provide an undertaking, or a written promise, that he would honour the covenants. The employee took legal advice and gave his former employee this undertaking. The employee then tried to renege on his undertaking after the new employer agreed that it would meet any legal costs incurred if the former employer was to sue.

The former employer acted on their threat and subsequently applied to the High Court for an injunction. The final decision of the High Court was to refuse to grant the employer its injunction because the Judge decided it was a disproportionate response and it would serve no legal purpose, as the former employer had lost the contract to their competitor. What is relevant to this briefing is what the High Court decided in relation to the restrictive covenants.

The High Court noted in particular that the employee had entered into the undertaking after he had left the employment, so there was not the presumption of unequal bargaining power that exists between the employer and employee when the initial contract of employment is signed. It was also important of course that the employee had received legal advice before entering into the undertaking post-employment. The High Court noted that ordinarily when dealing with restrictive covenants the employer is required to prove that such clauses are reasonably necessary to protect legitimate business interests. In this case, the Judge reversed the burden of proof on the employees because they had signed the undertaking post-employment. The onus was on the employees to prove that setting aside the restrictive covenant was justified and the High Court decided that the employees had failed to do this.

While the High Court refused to grant the employer’s injunction which is broadly in line with the practice generally in Ireland and the UK, it does illustrate the benefit of getting employees re-affirm covenants when they terminate the employment, and this can be achieved by means of a settlement or termination agreement. It might not get the employer over the line if he should bring an injunction, but certainly should improve his prospects and again actively dissuade an employee from breaching the particular restrictive covenant.