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October 24, 2011

Discriminating Against … the Unemployed?

by laurahess

Congress is currently considering enacting President Obama’s American Jobs Act. A portion of this Act would make it illegal for employers to discriminate against unemployed job applicants.

The Act would make it unlawful for an employer to take into consideration the fact of the applicant’s unemployed status, or refuse to hire someone because he or she was unemployed. The Act further would make it illegal for an employer to publish a job advertisement stating that an applicant will not be considered or hired for a position if he or she is currently unemployed.

However, the Act would not preclude an employer from inquiring about or considering the applicant’s employment history or asking about the reasons why the applicant is unemployed in assessing his or her ability to perform a job.

If found liable for violation the Act, an aggrieved plaintiff can recover liquidated damages of up to $1,000 for each day of the violation, plus reasonable attorney’s fees and costs.

If passed, I expect employers will be hesitant to ask any questions about gaps in the applicant’s employment history for fear that they will trigger a lawsuit. The Act may actually have the reverse effect of preventing the currently unemployed from even getting an interview. In today’s economy, where employers receive hundreds and thousands of resumes for a single job opening, employers may choose the path least likely to lead to a lawsuit by only interviewing applicants who are currently employed, rather than interviewing a mix of applicants and then risking a lawsuit if the currently unemployed applicant does not make it to a second interview.

October 16, 2011

Kring & Chung October Newsletter

by laurahess

The SPOOKY K&C October newsletter is here, with articles on DEATH during divorce (mwahaha), negotiating CREEPY construction contracts, GHOULISH subcontractor licenses, and joint and several DISMEMBERMENT (I mean, liability).

October 3, 2011

Do I Need a Lawyer?

by laurahess

People often ask me if they should talk to a lawyer about a problem they have. Here are some common examples of when you SHOULD talk to a lawyer:

1. One of your customers represents most of your sales. For this reason, you let it run up a large account receivable, whereas otherwise you would have cut it off long ago. Now you are starting to worry whether this customer is ever going to pay you.

2. One of your salespersons recently quit to take a job elsewhere. Now your customers are saying that this salesperson is calling them and trying to get them to move their business over to his new company.

3. An employee came into your office in tears because of the way her supervisor is treating her. She is complaining to her co-workers and starting to use legal words like “hostile work environment.”

4. You want to fire an employee. However, right before you were going to fire him, you received a doctor’s note saying that the employee will be out on stress leave for the next two weeks.

5. Your distributor called you and said that they are getting a lot of customers complaining about and returning your products. The distributor demands that you determine what is causing the problem and implement better quality control. It is going to stop all sales of your products in the meantime.

6. A customer says that it is going to sue you because it sent you a purchase order a long time ago, but you have not filled the order yet. The customer is getting angrier by the day and says that, if it cannot get the product immediately, it cannot fill its obligations to its own customers and it will lose business.

7. You hired a vendor to do a job for you. You paid the vendor for this work in advance. However, the project has not been completed yet, and there is no end in sight. Every day this drags on is causing more harm to your business.

8. You learned that there is a potential problem with your product that, if it happens, could cause the product to fail or (worst case scenario) hurt someone. You do not know yet how likely it is that this failure will happen or how much product is affected. You are thinking that you may have to do a product recall, but you really do not want to have to do that because it will alarm your customers and your competitors will jump all over it to take away your business.

9. You want to fire an employee. She is always calling in sick or coming to work late, and her job performance is fairly poor. However, she is pregnant, and you are worried she will sue you if you let her go.

10. You classified someone who works for you as an independent contractor. Now you are not sure if this person really qualifies as an independent contractor, or whether you should make him a W-2 employee. If you make this change, you are worried that this will raise a red flag to the employee that you had in fact misclassified him before, and invite a lawsuit.

September 28, 2011

Is it Illegal for Someone Else to Use My Business Name?

by laurahess

Q: When I ran my company’s name on Google, I found out that my competitor is using my business name to make sure that their name pops up when people search for my business! Is this illegal? They are using my name to make money and steal my potential customers! This is what their ad has: “www.[their business name].com/[my business name]” What do I do?

A: This could be considered Unfair Competition. California’s Unfair Competition Law is pretty broad and prohibits any unfair, fraudulent, or deceptive trade practices. It may also be considered trademark infringement if your competitor is deliberately trading off the goodwill associated with your name (i.e. deliberately attempting to create consumer confusion as to the source of its services). You may be able to get an injunction, which is a court order to prohibit the practice from occurring in the future. However, getting money damages may be difficult. The problem is that you would need to prove that a customer would have hired you but for the deceptive trade practice. If this is a new customer that had never hired you before, it is likely speculative whether that new client would have hired you.

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