Although the firm working on the litigation was based in Pennsylvania, I thought I would give my readers some background on the regulations in Washington which require contingency fee agreements to be in writing.

The Rule of Professional Conduct (RPC), in addition to other state laws, governs an attorney’s conduct in Washington State. RPC 1.5 specifically requires that if a lawyer is paid by a client through a contingency fee, the lawyer must have a signed agreement with the client which explains how the fee is paid.

In regards to the Sterling Financial case, the attorney representing the lead plaintiff likely failed to obtain a signed copy of this agreement. Therefore, under the RPC’s it likely would have been unethical for the firm to continue the representation.

Assuming the case was not dismissed with prejudice, a new lead plaintiff will likely come forward, sign the required forms, and proceed with the lawsuit. However, until that occurs the case will be on hold.

If you’ve been following the hiring and firing of coaches such as Jim Mora from the Seattle Seahawks or Jim Zorn of the Washington Redskins, you’ve no doubt heard the commentators bring up the Rooney Rule.

The Rooney Rule requires that before an NFL team can hire a new coach it must interview a minority coach for the position. This rule was passed in 2003 and named after the Steelers’ owner Dan Rooney who had long been an advocate for equality in coaching positions. The rule was passed due to the dismal record of minority hiring in coaching positions. Prior to 2003, although more than 70% of the players were African American, only 6% of the head coaches and 28% of the assistant coaches were minorities.

The rule does not necessarily guarantee equal treatment in the hiring process, but will help create a more level playing field.

Since the suit was filed in federal court, the plaintiffs were entitled to punitive damages up to $300,000. Generally courts don’t award these damages often, unless the conduct is very egregious. In this case, it sounds like it was.

If you want to read more about the settlement, check out the following link:

http://seattletimes.nwsource.com/html/localnews/2009708604_weblowes21m.html

Ryan Pauley

Some of you might be wondering “Can the employer just do that?”  Unfortunately, the answer is “yes”.  Washington is an at-will state.  This means that an employer can fire you for any reason unless:  1) you have an employment agreement, or collective bargaining agreement, that states you can only be fired for cause; or 2) the firing would violate a state or federal law (such as Title VII for the Washington Law Against Discrimination).

Based on the information contained in the article it seems that Key Bank’s firing was justified. I can’t fault Key Bank for having the policy, but I still have to give credit to the teller for standing up for himself.

In case you missed the article, here it is.

http://seattletimes.nwsource.com/html/localnews/2009579648_teller01m.html

http://seattletimes.nwsource.com/html/localnews/2009518030_apwawalmartsettlement.html

Of course, the question was can the employer enforce the terms that were made after the formation of the original agreement?

I think everyone is familiar with the phrase “you can’t get something for nothing” and it definitely rings true in this situation.  Any modifications to a contract must be supported by independent consideration.  I’m sure some of you are saying, “What the hell does that mean?”  Let me explain.  Consideration exists if there is a bargained for exchange.  Meaning the person making the promise, i.e. my friend above, must be getting something in return for his or her promise which he or she does not already have.  If the person making the promise gets nothing in return, then consideration does not exist and the modification is likely invalid.

Now back to the situation above.  Because my friend made additional promises without getting anything in return from the employer, his/her additional promises, i.e. the modification, are not enforceable because they aren’t supported by consideration.

Interesting stuff huh?  Maybe not for everyone, but it probably is for those like me who are fascinated with the daily contracts which we enter into each day of our lives.

As always, your comments are always welcomed.

Ryan Pauley

I don’t know anything else about the case other than what was discussed in the papers, but I do know that there are greater whistleblower protections for public employees as opposed to private employees in the state of Washington.  In WA, statutes specifically extend whistleblower protection to public employees, however no similar statutes protect private employees.  For a private employee to make a whistleblowing case he/she must show that the adverse employment action is against public policy.

Ryan Pauley

During his presentation, he forecasted that employment growth in the Seattle area would be negative for the rest of 2009 but that employer revenue levels would remain constant.  In response to this statement a member of the audience asked, “How will companies maintain their current revenue while continuing to layoff employees?”  Gardner’s response: “Companies will work their employees harder and require longer hours to make up for the layoffs.”

After this dialogue concluded, my fiancé who was with me asked me: “Can an employer just work their employees harder without paying overtime?”  As with most legal questions, the answer to the question is “it depends.”

Only nonexempt employees are entitled to overtime.  Employers often classify their employees as either nonexempt or exempt.  However, even if an employer classifies an employee as exempt, he/she may still be entitled to overtime and other benefits under federal and Washington state wage/hour laws.  What counts is whether the worker is exempt within the meaning of those laws not what the employer calls him/her. There are several exceptions and tests that a lawyer considers to determine if an employee is in fact exempt.  Unfortunately, there isn’t enough space here for me to list all this information.

Long story short, if your employer is working you long hours in excess of 40 hours a week and not paying you overtime, your employer could be violating your rights.  To find out more about your right to overtime or other wages feel free to contact me or Tim Pauley at 206-583-0050.

It is inspiring to know that employees are willing to stand up to powerful corporations and report illegal activity.  However, I can’t help but think that many employees remain silent because they are fearful they will loose their jobs and/or other benefits if they report their employer’s misconduct.  To those individuals I say “fear not” because state and federal laws will protect you from employer retaliation.

There are a variety of federal statutes which protect whistleblowers. http://whistleblowerlaws.com/index.php?option=com_content&task=view&id=141&Itemid=54.  Further, unlike some state laws, certain federal laws extend whistleblowing activities to internal reporting.  Individuals may be protected under more than one of these statutes therefore it is important for a whistleblower to consult an attorney to determine which may be the most applicable.

State laws also protect whistleblowers.  In Washington, only public employees are specifically protected by statute.  However, both public and private employees are protected by case law.  An employer cannot terminate an employee for reporting misconduct to an outside agency because it is against public policy.  Any employee terminated in WA under these circumstances has three years to bring suit against his or her employer for wrongful termination. (Please visit the following site to reference other state whistleblowing laws – http://www.ncsl.org/programs/employ/whistleblower.htm.

It is always difficult for an employee to stand up to his or her employer, particularly in these tough economic times.  However, if an employee is brave enough to report wrongdoing, then it only makes sense that we protect them from retaliation.

Wal-mart argued it would be unfair to allow over 2 million women to proceed against the company in one lawsuit without making each woman prove all the facts of her own case. The women argued Wal-mart’s sex discrimination was system wide and applied in all of its 3,400 stores and that, since each female worker is entitled to only a few thousand dollars, lawyers would be hesitant to represent them on an individual basis.

I feel the Court should allow the case to go forward en masse as a class action. Not only would requiring each woman to bring her own case flood the nation’s courts with litigation involving thousands of similar cases, if Wal-mart acted improperly, it most likely made billions of dollars by not paying equal pay for equal work and by systematically denying female workers promotions. It only makes sense that, if a company systematically violates the law, it should also be required to systematically defend its conduct.

For more information on this cutting edge case, see http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2009/03/24/BA2A16MCPP.DTL

Tim Pauley