Wednesday, April 13, 2011

It's as Easy as It Can Be: Just Ask Your Friend the EEOC

Effective May 1, 2011, the new EEOC regulations defining disability discrimination and accommodation rights will go into effect.  See 29 Code of Federal Regualtions, Part 1630. 

As a California employee rights attorney, I have studiously limited my disability cases to the rights provided under California law, which up to now has been more liberal in protecting employees.  Not so now.  The EEOC regulations largely expand employee protections to be those afforded under California's Fair Employment and Housing Act [FEHA].

In a nutshell, the regulations expand the definition of a disability qualifying for accommodation to be any condition that in some even slight way impairs a persons ability to perform work.  An impairment of "a major life activity" means an impairment of just about any function of thought or action, even when assistive devices or medications may ameliorate the effects of the condition. 

The goal, explicitly stated by the EEOC, is to remove the usual bickering between employer and employee over whether the employee has a disability.  [Several conservative U.S. Supreme Court decisions defining "disability" under the A.D.A. were specifically targeted for reversal by Congress in directing the Commission to develop more liberal protections]. 

Now California disability discrimination lawyers, such as I, will have the option, if needed, to rely on the federal law as well as state law.  However, for those states having regressive, conservative, or even non-existant disability accommodation laws, these new federal regulations expand the rights of millions of Americans. 

"If the pink slip doesn't fit, get redressed!"
Click to see my wardrobe of remedies. Link

"Oh GINA, GINA, Goddess of Love That You Are"

OK, you don't remember that song, or more likely, never heard it.  It's from the 60s.  Now fast forward to the 21st Century.  GINA is the "Genetic Iformation Nondiscrimination Act of 2008."  Basically, the Act provides that genetic information cannot be obtained or used in making employment decisions. 

The EEOC recently issued some clarifying regulations (1/10/11) stating that when an employee uses extended medical leave under the Family Medical Leave Act, the employer cannot obtain genetic information as part of the doctor's certification of the qualifying disability.  Genetic information includes references to the patient's family history of disease, not just actual genetic testing results. 

"If the pink slip doesn't fit, get redressed!"
Click to see my wardrobe of remedies. Link

Rolling the Discrimination Dice

Club One Casino is alleged by a discrimination complaint filed by Casino workers to have reduced their hours of employment because of their Asian race and ancestry.  The Action is filed in Fresno County Superior Court of California.

A separate suit, filed by the same firm against the same casino alleges age discrimination against older work guards, dealers, and restaurant workers, who were allegedly replaced by younger workers.

All this trouble allegedly started with the ascension of a new casino owner, Kyle Kirkland in 2008. 

Is the economy contributed to worker disgruntlement and the filing of more lawsuits?  Yes.  Charges of discrimination have never been higher, with 35,890 race discrimination complaints filed with the EEOC in 2010, and around 24,000 age discrimination complaints during 2008-10. 

Odds are that if you were an employer during 2007-2011, you will be sued by a laid off worker claiming the layoff had discriminatory motives hidden beneath the surface objective of reducing costs.

"If the pink slip doesn't fit, get redressed!"
Click to see my wardrobe of remedies. Link

Changing Roles

Occasionally this "employee rights" lawyer will change roles to defend an employer.  Why would I do that?  For several reasons.  First, it pays.  Secondly, it informs:  I learn to see the world more clearly through the eyes of the employer, and to come out of the trance that my "employee clients" are always right, and without blemish.  Thirdly, and more philosophically, I never stop being an "employee rights" lawyer even when I defend an employer.  Employers who play by the rules are "employee rights" employers.  They should be protected from lawsuits that allege false and sometimes frivolous allegations that they have been otherwise.

"If the pink slip doesn't fit, get redressed!"
Click to see my wardrobe of remedies. Link

Tuesday, April 12, 2011

Credibility Builders

As chair of the Labor and Employment Law Section of the Orange County Bar Association, I have the privilege of serving our membership by arranging for topic speakers at each monthly meeting.  This month, the topic was "The Crown Jewel of Your Case" and that is the credibility of your client and witnesses.  The presenters were Neil Larsen Palmer, Ph.D. and Janet Larsen Palmer, Ph.D. of the Comunication Excellence Institute.

Witness preparation is therefore critical to an attorney preparing his case generally.  Credibility consists of Substance X Power X Openness.  Substance is the value of your knowledge and competency.  Power is the reach of your influence and position.  Openness is your ability to generate trust through authenticity.

In face to face situations 93% of your impact in communication comes through non-verbal channels:  body language and voice delivery.

Here are the top 15 non-verbal credibility builders in deposition and courtroom testimony:

1.  Sit upright with excellent posture, shoulders back, and leaning slightly forward.
2.  One hand should never touch the other, and never make a barrier with your arms.
3.  Take up as much body space at the table as you can comfortably.
4.  Make sure both hands are always visible and out of parallel.
5.  Lift your hand gestures off the table occasionally to make a memorable point, and show your open palms as often as possible.
6. Avoid preening and pacifying gestures (keep your hands off your face).
7.  Keep your hands/fingers away from your mouth.
8.  Hold your head straight (not tilted to the side or up, or down), with your chin parallel to the table top.
9.  Adopt a cooperative, positive demeanor to enhance your likeability.
10.  Maintain direct eye contact with your questioner, during both the question-asking and the conclusion of your answer.  During longer answers, expand your eye contact to include the jury.
11.  Take at least one "beat" before answering. (short pause)
12.  Speak with slightly increased volume.
13.  Emphasize words to avoid a monotone.
14.  Speak in a strong voice, with downward inflection at the end of sentences.
15.  Above all:  Never let 'em see you sweat.

"Give your evidence," said the King; "and don't be nervous, or I'll have you executed on the spot."  -- Lewis Carroll, Alice's Adventures in Wonderland.

"If the pink slip doesn't fit, get redressed!"
Click to see my wardrobe of remedies. Employee Rights Attorney