Speaker 1: 0:20

Yeah, it's Mark, and welcome back to the next episode. Today we're going to do something a little bit different. Put away your books and take out your pencils. We're going to have a pop quiz. Ooh, I didn't study for this one. Should I be concerned? I thought about this. I was doing a training ride because I'm going to get back from my double knee replacement and I'm not there yet in terms of my riding, and so I was sitting there thinking, well, I'll give a pop quiz to the class today, all right? So the pop quiz focus is, well, employment law. You got it, you've studied it, you listened to this podcast. For whatever reason, you're crazy enough to listen to me. Here we go.

Speaker 1: 1:01

The first question deals with what is the difference between an employee and an independent contractor. You hear about this in the news a lot. California has some independent contractor cases out there and they had a recent decision where they said some companies like Uber and Lyft are not employees under California law. Anyway, here we go First. I'm going to give you the general setup of these questions and answers as follows You're going to have A, b or C and you're going to have to select the correct answer and I'll give you the answer, of course, because I'm a nice guy. Anyway, the first question what is the difference between an independent contractor and employee? A the employer files federal FICA taxes on behalf of the employee and the independent contractor pays no income taxes. B the independent contractor has the same rights as a full-time employee. Or C an employee is under the direct control and supervision of the employer, who dictates how work is done. An independent contractor has more autonomy over how they perform their work, often using their own tools and setting their own schedule. What do you think the answer is? Well, it's going to be C Direct control of employees is the hallmark of an employee relationship and when the employee has multiple clients they serve, they're an independent contractor. So just kind of keep that ABC test and then you can search on the web Google for ABC test for independent contractor. So just kind of keep that ABC test in there. You can search on the web Google for ABC test for independent contractor and it comes up.

Speaker 1: 2:28

The second question what are the main protected classes under the federal anti-discrimination laws? A Title VII of the 64 Civil Rights Act only protects against race discrimination. B disabled employees are not protected under federal law. Or C the main protected classes under federal law are race, color, religion, sex, including pregnancy, sexual orientation, national origin discrimination, age discrimination and disability, and genetic information discrimination. What do you think the best answer is? Well, it's see, if you studied correctly last night or you pulled an all-nighter. The main protected classes are age, race, color, religion, sex, pregnancy, sexual orientation, etc. Most people don't know what that is. You'd be surprised.

Speaker 1: 3:19

Third question what is the purpose of the Fair Labor Standards Act, often called the FLSA? I litigate a lot of these cases. They're called wage and hour cases typically involve overtime pay issues. Here we go. First question or first answer is it the Fair Labor Standards Act establishes minimum wage and overtime pay, record keeping and child labor standards? This is answer A. Or is it B to provide a fair and equal workplace for all employees nationwide? Or is it C to prohibit child labor and exploitation of children in the workplace? What do you think it is? Well, it's A the Fair Labor Standards Act establishes minimum wage, over time pay, record keeping, child labor standards. And C was also correct too Trick answer to protect against child labor exploitation.

Speaker 1: 4:10

So the fourth question is what is the concept of at-will employment? Did you know? Most people don't know this answer and they don't know the concept, so I don't know why that is. It's all on the web. You can see it free. But here it goes. Answer A that an employer can treat you like shit and yell at you during all working hours. This does happen. B at-will employment means that either the employer or the employee can terminate the employment relationship at any time for any reason, except an illegal one, with or without notice, or is it? C you can only be fired for cause a serious or material employment problem. What do you think? The answer is Okay, enough time. It's B it means that the employer and you can leave at any point in time without any notice, without any reason whatsoever. Period, end of story.

Speaker 1: 5:07

And that rule itself is followed by every state except for one, montana. Montana has a hybrid rule, or that's actually a for-cause rule, meaning that you can only fire somebody for a cause, but you've got to give them a notice probation period pretty avant-garde type of state. You've got to give them a notice probation period a pretty avant-garde type of state. Every other state doesn't follow that rule and the Atwill rule, in my opinion, hides so much discrimination behind it because no one has to give you an answer why you got fired and people ask me well, they didn't give me, or tell me in an interview that they didn't give me an answer why I was fired. Well, actually that helps you. Employers who don't give answers of why you're fired actually can't use performance-based accusations later on when you're challenged. Remember that that was the law of the land, so to speak. But it's not a great rule. Again, it foments or causes more discrimination than you think, but no one really knows about that. But now you do. But now you do, okay.

Speaker 1: 5:59

Question number five what are the basic requirements for an employer to provide Family Medical Leave, act leave called the FMLA? Is it A? Fmla required covered employers to provide eligible employees up to 12 weeks of unpaid job-protected leave for specified family and medical reasons. Is it B? The FMLA does not protect your job if you come back to work before the expiration of 12 weeks. Or is it C? The FMLA is a paid leave? Okay, thumbs up A. It requires an uncovered employer to provide eligible leave for somebody unpaid for 12 weeks. Your job is protected. You have to come back one week before the expiration of 12 weeks because it removes doubt as to you came back and if the employer bans you, blocks you from coming back, you can immediately mount what's called a retaliation claim under the FMLA, and it doesn't require you to demonstrate with medical documentation other than fill out a form that the employer can provide. It's also on the US Department of Labor website. It's a medical certification form. It just says you have a serious medical condition and that's it. And then you also can use the FMLA for care for others in your household. That's also allowable. So those are your basic information regarding FMLA. So those are your basic information regarding FMLA. And it's not paid, by the way, not yet. Some politicians want to change that State law. New York, connecticut, have paid leave. A lot of states do have it now.

Speaker 1: 7:36

All right, let's move to a different subject matter harassment and discrimination. Here's the first question what constitutes workplace harassment? No-transcript coworkers, I can also add in there. You know, did your boss punch you? That actually did happen in one of my cases. So which answer is it? You think? Well, it's B.

Speaker 1: 8:12

Workplace harassment is unwelcome conduct based on protective characteristics, like your female age issues, disability, detect the characteristics like your female age issues, disability, and it's got to be extremely hostile and offensive. It's a heightened standard. It's not what the you know. You can have somebody yelling at you, but that's not enough. You've got to have, like, sexual comments or age-related comments and it results in something like, you know, demotion or firing, no-transcript. All right, the next question is describe two types of sexual harassment. You may or may sexual harassment training at work and fallen asleep because the person giving the presentation was just as boring as possible Not like me in this podcast pop quiz Trying to put a little levity in this conversation we're having today.

Speaker 1: 9:14

All right, two types of sexual harassment. What are they? A sexual assault during work and the employer makes you sign an NDA Sounds familiar, mr Weinstein. B, favoring male employees or females and paying men more. Gee, what an uncommon issue. Or C? Two types are quid pro quo when a job benefit is conditioned on sexual favors and a hostile work environment is where the conduct creates an intimidating, hostile or offensive atmosphere. What do you think? It is A, b or C. So the answer is C.

Speaker 1: 9:53

Two types of common cases are quid pro quo and hostile work environment, and I will tell you for a fact we really don't see the sexual assault type of stuff happening any longer. It's men have wised up, after me too. It's more of the nature of a hostile work environment based upon sex. We have this kind of you know, inequality of treatment, sexually provocative language. I really don't see pinup cases where they put a penthouse on the wall or something you know like call the firehouse cases. Or I don't see pinup cases where they put a penthouse on the wall or something you know like call a firehouse cases. I don't see those cases any longer. So men have gotten smarter but they still do the stupid thing. They commit the same harassment and discrimination. Sexual assault, by the way, in answer A is also sexual harassment. So if you're asking, and then the NDA issue is what Weinstein did and the wonderful lady over at Fox News said screw this. And she went to the press about it. She breached the NDA and Weinstein obviously knew what happened to him. And then we have something beautiful we have the Biden administration coming in and say no more forced arbitration. This woman, a very notable TV personality, went to Congress and passed, had a law passed and Biden Biden signed it. So we no longer have forced arbitration of sexual assault and sexual harassment cases in employment. It's a really big deal and you've heard me talk about it before.

Speaker 1: 11:12

Third question what is the difference between disparate treatment and disparate impact discrimination? What, what the heck did you just say Disparate treatment and disparate impact discrimination? This is the problem with employment law. It uses kind of bullshit, weird terminology and just you know. So it's a pop quiz, so it's designed to help you understand what the hell it is. I don't make this stuff up. These are lawyers and judges and famous people in the law, and I'm just trying to interpret this nonsense for you.

Speaker 1: 11:46

Is it A? A disparate treatment is an intentional discrimination against an individual, while disparate impact is a policy or practice that appears neutral but disproportionately affects a protected group. God, doesn't that sound boring? B? Is it disparate treatment is favoring one employee over another? Where, as disproportionate treatment is where? Or disproportionate impact is where an employer enforces a neutral policy in an unfair way against a particular protected class of employees. Or is it C? They are all the same thing. What do you think it is? Well, that first one sounded pretty boring and pretty accurate, right? So it is A. It might be B, favoring one over the other. Actually, all three are the same in a sense. The answer C was they're all the same, but they all prove discrimination. It's how the lawyers prove to the court first and then to a jury.

Speaker 1: 12:41

I'll just boil it down to you. It's like you treat one person more favorably than another. That's disparate. That's the word disparate. Look it up in the Western dictionary. Disproportionate impact is when you take a policy saying I don't know employers who treat employees in equal opportunity way at work, okay, and then they use that policy in such a way neutral on its face, because everybody's treated equally, and then they apply that same policy in some weird fact pattern that treats people who are not equal, like age or gender or something. So it's a highfalutin employment terminology. But now you know what it is Boring as shit, I get it.

Speaker 1: 13:21

Most cases fall under. About 95% of the time fall under disparate treatment or intentional discrimination and disproportionate impact cases. That's where you hear the equal opportunity or class actions involving like Walmart or Amazon Warehouse and they're going after a large-scale amount of people regarding discrimination treatment at work. Okay, so just kind of, I'll leave it at that. I could talk forever about it, but I hate the subject matter of disproportionate impact and disparate treatment. It's just, it's archaic. It's like, as my wife says, yawn paint dry. It's boring. I'm trying to make this stuff enlightening for you. So you are protected and so you are have power and leverage. You leverage, you have a voice and, oh, you have some agency about yourself and the employee doesn't take it away because you have information, you're armed. Okay, that's how I said it agency, it was something I learned in law school about. Uh, there's a class on agency, but it's something a little bit different than what is currently the social uh media hype thing.

Speaker 1: 14:20

Anyway, the next question what steps should an employee take if they believe they are being harassed or discriminated against at work? A send an internal email complaining of discrimination to your supervisor and HR, complaining of discrimination of some kind. Or? B employees should report harassment or discreation to their supervisor, hr department or designated official, following company procedures. If internal measures fail, they can file a complaint with the Equal Employment Opportunity Commission, the EEOC, or is it? C call the police and file a complaint. Well, they're all good.

Speaker 1: 15:00

If you file a police report, I'll take that one last. You're making a record of reporting something. Say, you got raped at work. This does happen. You file a police report. That is a protected activity, and if the employer did something to, let's say, fire you after that, it could be seen as a retaliation type of complaint could be seen as a retaliation type of complaint. B is really the strong answer report harassment or discrimination to the supervisor, hr department and whatever, and also file an EOC case and that's a Form 5 filing. I just did a podcast about this. It doesn't mean shit when you file it because the EOC is worthless, but nonetheless filing it, and A also applies too.

Speaker 1: 15:46

I often tell people if you don't want to raise the case to the EOC level which is not a lawsuit, by the way, it's just an agency filing. You can't discover it on a Google search you send an email to your boss and saying I think you've discriminated against me because of the following reasons and you have to kind of be more specific than vague and then you send a copy of it to HR. That thing will stop the employer from firing you. If you think you're in the death throes of being fired let's say you're in a PIP or something, or, before a PIP happens and you're announcing it, file in that email. It's a timestamp, it's there. It can really protect you for about maybe one, two months. My record on doing this type of strategy is about two years for a client a while back. We did have some EOC case filings at the same case, but we constantly filed email complaints and it basically sets the employer back because they don't want to commit what's called a retaliation claim, which is really easy to prove. File a complaint like email, and you get fired five days later. It's a slum dance, a slam dunk type of case. For an attorney to uh to prosecute for the, for the client and the court to award it, so pretty easy.

Speaker 1: 16:51

Um, the final question of the day of your pop quiz been exhausting, I know. Oh, it's like watching paint dry. Um, what are the employer's obligations to prevent and address harassment and discrimination? My favorite A employers must take proactive steps to prevent harassment and discrimination, including training Ooh, training. Establishing reporting procedures oh God, those are really effective and promoting prompt investigating complaints of employees because they never tell you about the results of those complaints, by the way and taking appropriate corrective action.

Speaker 1: 17:30

Or is it B? None employers can do whatever they want and employees have no rights. Is it C? Employers are only required to conduct harassment and anti-discrimination awareness classes, but nothing more. What do you think it is? Pens down, it's A employers must take proactive steps to prevent harassment and discrimination. I'm going to say this and I'll riff off on it this nonsense that they take to proactive steps and training stuff, it's all for their own self-defense in case they get sued. It's called a defense by the Supreme Court and it's, you know, if they have grounds or factual evidence that they have done it, it's a factor in the court's decision to determine whether they are liable, you know, sometimes strictly liable for these types of claims.

Speaker 1: 18:19

And so the real question is are these steps to prevent harassment, discrimination, are they effective or not? The answer no, they don't. Because why does so much discrimination happen all the time? It's the age-old $100 million question why it still happens, why employers let it happen, why they lose profits, because they're paying out people for discrimination pay. You know, I think it's human behavior. I think humans are just inherently just mean, asinine people and they go about in a very selfish, self-protective type of way and they basically get rid of people and they let their egos and psychologies run at work, you know, off the radar, reservation, and they commit these acts. That's why they continue to happen over and over and over again. But so does the actions by the employer internally to prevent and train and give awareness and DEI stuff.

Speaker 1: 19:16

No, it's all bullshit. It doesn't work. Is there something better? Yeah, filing a complaint against them and making them stop it. Shame them, public shaming them, public disclosure about their nonsense. So that's what you've got to be self-proactive on your part. And I've been talking about that forever. So there's your pop quiz. Hope you all passed. Hope you're more aware there will be more pop quizzes in the future. I'll think of nice questions to agitate your craniums. Until then, have a great week.