Category Archives: Employment

employment attorney Orange County California Whistleblowers

Posted on by

Many California employees contact us to find out if they are entitled to “whistleblower” protection. Both state and federal laws protect persons who report illegal activity by their employers says employment attorney Orange County. To be protected, an employee usually only has to have a “reasonable but mistaken belief” that illegal activity is afoot. In California, whistleblowers are protected by Labor Code 1102.5 which prohibits retaliation against an employee who complains about illegal activity. This is a very tough law for employers to prevail on, since the very next code section (1102.6) provides that the burden of proof is on the employer to prove by clear and convincing evidence that the whistleblowing about illegal activities had nothing to do with the adverse employment action.

According to employment lawyer Orange County, an employee can claim retaliation under the federal qui tam laws, where it is shown that the whistleblower was discharged, demoted, or discriminated against because of lawful acts done in furtherance of a false claims investigation. If the relator basically violates confidentiality and removes tens of thousands of documents indiscriminately, in order to later prove a qui tam case, there will probably be a finding of non-protected activity and the loss of the right to bring a retaliation action under the federal law.

When a whistleblower actually sues his or her former employer on behalf of the government for monies lost by the government, it must be shown that the government was actually defrauded and lost money says employment attorney Oakland. The federal false claim act is found at 31 United State Code 3729. A recent case illustrates some of the differences in “reasonable but mistaken” (sufficient to support a wrongful termination claim) and actual false billings. In this case the plaintiff contended that her employer withheld disclosure of new inventions from the government, stating that the contract with the company provided that the government owned the inventions. As the government would have had the right to license and sell these new inventions, the theory of the employee went, the United States was defrauded by not having that right of sale. Unfortunately for the plaintiff, she was unable to allege that the employer ever sought payment from the government and had not submitted a “false claim”.

Employment attorney San Diego says that false claims take many forms such as fraudulent use of a receipt; unauthorized purchase of government property or use of a “false record or statement” to avoid payment to the government. Another recent case held that a request for reimbursement that falsely implied compliance with federal rules might constitute a false claim. “Reverse false claims” are also actionable. In one such case, the defendant company falsely represented the value of some aircraft metals as “scrap”, whereas in fact it was worth several million dollars. A false claim was properly stated. Finally, it’s important to determine if the false claim was in a “condition of participation” or a “condition of payment”. No false claim is usually stated if the defendant accused of defrauding the govenment is simply falsely certifying compliance (such as non-discrimination) with a federal program or is actually billing falsely.

Financial rewards for whistleblowers can be huge! Under California state laws, up to 30% can be awarded to the whistleblower. Routinely, about 15-20% is awarded in federal false claims actions.

As always, this blog is educational in nature and legal advise can only be given by an experienced attorney in your jurisdiction.

Employment Law – The Enforceability Of Post Employment Restraints Of Trade (vic.)

Posted on by

Employing highly intelligent and highly qualified employees in a range of sophisticated commercial businesses is a risky business for employers.

To acquire competitive business advantage in an increasingly globalized and networked world of pharmaceuticals, genetics, telecommunications, power supply and information technology requires the employment of highly qualified, well educated, experienced and clever employees.

Potential employers and employees are both well advised to seek legal assistance when drafting or accepting terms of employment. Due to the seniority of these employees, their employment contracts are less likely to be workplace agreements but more likely to be private , one-off, contracts of employment.

Often, employees in the pharmaceuticals, genetics, telecommunications, power supply and information technology industries will have access to secret and confidential information which is both price and market-sensitive. This information might be chemical formulae, scientific and technological data, chemical, electrical or manufacturing trade processes, hardware or software engineering designs, or a range of other sophisticated technological and scientific information. The potential employee will need access to this information to perform his or her anticipated role. When the employment relationship ends, however, the employer is faced with a double problem. First, the employee is leaving. Whether the departure is voluntary or involuntary, it will be an inconvenience and a disruption to the employer. Secondly, and more importantly long term, the departing employee will take with him or her, knowledge of the secret and confidential information which may be the very basis of the employer’s competitive advantage in a particular industry or market.

To minimise this long term disruption, employers often include restraint of trade clauses in employment contracts when employing people in these sensitive areas. Commonly, the restraint of trade will prevent the former employee from seeking employment with any competitor of the former employer in the particular market for a period of time.

In current times, where there is a shortage of trained staff, particularly in scientific and technological areas, the reason why an employee departs is generally because he or she has received a better offer from a competitor.
In deciding whether or not to enforce the restraint of trade clause against a departing employee, Victorian courts have to balance a number of competing factors.

First, neither Australian nor Victorian general law will restrain a former employee from seeking employment with a competitor. Any such restraint must be found in an enforceable clause in the contract of employment with the former employer. Employers, therefore, should always ensure that staff are employed pursuant to written contracts of employment which contain enforceable restraints of trade.

Secondly, Victorian courts will not allow employers to prevent former employees from conducting a living by practising the skills which may have taken many years to acquire through university courses or practical experience. However, this is only a general rule or starting point.

Thirdly, Victorian courts will not allow former employees to obtain an unfair springboard into a new career by abusing the trust of the former employer. Examples are where employees spend an entire weekend photocopying price lists, formulae, client contact details and other confidential information and then resign the following Monday morning to set up a competitive business the following Tuesday morning.

Essentially, Victorian courts perform a balancing act between the competing interests of the employee to be able to continue to gain a living on the one hand and the employer’s interests of being able to reasonably prevent the disclosure of confidential and secret trade-sensitive information to competitors when the employment relationship ceases.

The sorts of factors courts have taken into account are as follows. First, Victorian courts will look to see whether the restraint of trade is reasonable or is too restrictive. Any restraint which tries to prevent an employee from working not only in the particular business of the former employer but any other associated or ancillary business is likely to be struck down. Likewise, a restraint which seeks to prevent an employee from working for an excessively lengthy period (generally more than 12 months) is also highly likely to be struck down and declared unenforceable. To overcome these problems, lawyers draft restraint of trade clauses to have a “waterfall” effect. The clause contains a number of alternatives, for example, starting from a very wide restraint and then proceeding to an increasingly narrow restraint in terms of future employment activities or in terms of length of time. Each one of the alternatives is severable from the contract if declared unenforceable by a court. Accordingly, a court might reject a restraint which provided for former employee X not to be employed in any pharmaceutical industry within South East Asia including Australia. The court, on the other hand, may be prepared to enforce a restraint which prevented employee X from being employed in the field of molecular genetic artificial-blood technology in either Melbourne or in Sydney for a period of one year. Such a restraint is far more precise and reasonably protects the former employer’s confidential information whilst allowing the employee to seek employment in the general field of molecular genetics.

A court must also be satisfied that an employer’s fears are genuine. For instance, is the information really secret and confidential? If the information is only knowledge which an employee would obtain through the repetitive working of his or her ordinary job, courts are less likely to regard this as secret or confidential information. Other sorts of information which are publicly available (even such as client contact details and price lists) may also not qualify. If there is no secret or confidential information, then there can be no restraint of trade.

Courts will also look to see whether the employee was specifically compensated for the restraint when first employed. If an employee received a specific additional sum as a hiring incentive for a longer than normal restraint of trade, courts are more likely to be persuaded that the restraint, when ultimately applied, is reasonable. The employee has accepted the restraint when first employed and has received a specific benefit for it.

Another factor which courts will examine is the seniority of the former employee. The more senior, the more likely it may be that the now departed employee may be capable of encouraging other staff to follow him or her and more capable of influencing former clients to switch allegiance. Alternatively, if the former employee was not employed in a managerial position and was only employed at either a junior or specific technical level, courts may be less worried about wholesale client or staff defections which would need to be prevented by the restraint of trade clause.

Until recently, courts seemed reluctant to enforce restraints of trade for more than 3-6 months. However, recent New South Wales Supreme Court authorities seem to be swinging the pendulum back in favour of employers where the balancing exercise outlined above suggests that the restraint of trade does need to be enforced to reasonably protect the former employer’s market and confidential information interests. For instance, Brereton, J., in John Fairfax Publications Pty Ltd v. Bert & Ors [2006] N.S.W.S.C. 995 upheld a restraint of trade for 12 months in relation to a former employee who had been employed at a senior level. The same judge, in Cactus Imaging Pty Ltd v. Peters [2006] N.S.W.S.C. 17 (18 July 2006) also enforced a restraint of trade for 12 months in a situation where the former employee operated in a restrictive market or oligopoly.

This is a complex area of law. Contracts of employment generally and restraints of trade particularly need to be carefully drafted to have their intended legal effect.

Employers and employees need to be carefully advised on the range of tactics available in post employment scenarios.

Applying for a Job – Run Pre Employment Check on Yourself to Mark Success!

Posted on by

Over 90% of companies run background checks on applicants-.

Unemployment is soaring. Many employers have already seized new hiring ventures and very few jobs are available. Despite a very modest improvement in recent months, the job market is still hovering around 9.5% unemployment, unthinkable four years ago. In most fields and industries, competition for the best jobs is almost overwhelming.

Is there anything a common job seeking person can do to stand out from the unemployed crowd? Actually, there is a way by which you can mark your primal success over your competitor candidate and how it’s going to be happen, when you run your own background employment check before applying a job.

The question arises in every job seeking mind that how running an employment check upon yourself might help in getting a prospective job career. So it is simply because, first it enables you to find out if any erroneous information is being reported about you. And second, it reassures potential employers that the qualifications you present in your job application are true and correct. A study conducted by a human resource and recruiting firm stated that as many as 44% of the resumes and job applications contain inaccuracies or outright deceptions.

Every single employer is now conducting a background check or employment check before hiring. The fact you have presented your own self-background- employment check suggests that a problem is not likely to crop up when the employer runs its own background check. In other means, it can double your chances for being hired as employer will not be able to uncover something which will cause him/her to have to disqualify you at end of hiring process thereby wasting company time and resources.

What’s more, as said, if by chance there is some mistake being made in compiling your background check, for example, a State is erroneously reporting you have a criminal record when if fact you don’t, running your own background check will alert you to this problem so you can take steps to correct it before an employer sees it.

Bottom Line: This may be a good preemptive strategy in today’s killer job market. But how do you go about it? Let’s have a look at it through these simple easy steps to opt for a employment check.

There are four essential pre employment background checks that you can run on yourself are as follows;

1.Education: Pre employment background checks

2.Credit Record or History Checks

3.Employment Criminal background checks

4.Social Security Number Trace

Education Background Check Made Easy:

Education background checks is one of the most essentials checks employers perform as employment checks. Strict credentialing practices are used to verify your university/college accreditations, your study time (attendance and date of admission/passing out) and sometimes your grades are also verified.

When verifying your own university/college degree, the first place you want to look is The National Student Clearinghouse. They run the automated database that provides degree verification very quickly.

Typically, colleges and universities provide education verification over the telephone. You can contact your institution administration/registrar office to confirm the accreditation of university/college with accreditation authorities. Then you can double check your admission/passing out dates as well as your grades.

If your institution cannot find your degree or the name on degree is changed to your current name, (an unusual situation, but it might happen), you have to take care of the problem. You will probably need to fax the school a copy of your diploma or any other documentation you have, to remove the chances of being debugged.

Credit Records or History Pre Employment Background Checks:

Be aware of what is on your credit report, especially if you think a prospective employer might check it. That way, if there are inaccuracies on the report, you can take steps to correct them.

Employers are very keen to know about your credit histories as it can easily predict your future in their organization. So it’s feasible to run a credit history employment check on yourself by adopting these four basic precautions.

Contact your bank and ask them for your credit report.

If you find any mistake or discrepancy, point out and correct it right away.

Make your bank to certify you for clean credit history.

After these 3 steps to resurrection, you can notify your prospective employer of the inaccuracies and of the steps you have taken to correct them.

Criminal Background Checks as Employment Checks:

Employers want to know about your background, and you can be assured that they will check to see if you have a criminal history.

The best source of a complete criminal background employment check is the Department of Justice for your state. If you have a criminal record in multiple states, you will need to contact each state’s Department of Justice. You can also get a copy of your criminal record from the court where your case(s) went to court.

These local records are found in courthouses and police departments, you can also look in specialized searches which include the Terrorist Watch List, the Federal Wanted Persons List, and Sex Offender Registries. Most of these records are contained in large databases that are updated on a regular basis.

Criminal background checks be best searched by hand at the county/states level, with full names, date of birth, should be used as much as possible to confirm a positive identification.

Social Security Number Trace

An applicant’s social security number is used throughout the pre-employment screening process, checking your validity of the number accomplish several things.

It confirms that the number belongs to you and it provides a list of current and previous addresses, as well as other names used.

Make sure each numeral is clearly written so no one has to try and decipher your handwriting.

If you had reason to change your SSN, provide both numbers and add a brief note explaining why you had to change your number. Also, indicate when you started using the newer SSN.

This verification also provides other last names associated with the SSN and a list of previous addresses.

Drawn Conclusion and Recommendations:

The strategy is simple. Get your own employment check report done, and then offer it to an employer as a way of reassuring him that you’re on the up-and-up. This is not at all an uncommon practice these days. You can attach a printed copy of your Self-Check Employment Screening Report to your resume.

Not everyone knows what happens during a pre-employment screening. In fact, most people know very little about it. So, Consider hiring a specialize pre employment background checks company or try to check your background online with authentic sources and public record portals, they are extremely helpful and can easily detect you out of everywhere; they are reliable, cost effective and time saving.

The author of this researched article is a professional writer indulged in writing for changing trends in background screening and employment check industry, its evolution & development in the online world.

Pre-employment Background Checks 5 Reasons Why Smbs Should Conduct Them

Posted on by

Labor experts tell us that 8 out of 10 hiring professionals do some form of pre-employment background screening. Yet many medium and small businesses and are still dependent on traditional methods of pre-employment background screening, such as checking up on references. This article explores why many SMBs avoid professional employment background checks, and the risks and dangers of doing so.

Why Many SMBs Don’t Do Pre-Employment Background Screening

Lack of concern. Some SMB managers believe that only cops, teachers, and doctors should be subject to employment background checks. That point of view is outdated. Nowadays, many private companies are consistently performing pre-employment background screening, for the reasons listed in the second half of this article.

Lack of Internal Support and Expert Knowledge. Many SMB leaders assume that any pre-employment background screening they do must be done in-house. The prospect of training an employee to carry out background checks is intimidating to most managers, especially since it could very well take a person months to research the best background check procedures. However, partnering with pre-employment background screening outsourcing firms allows all companies quick, convenient access to employment background checks.

Overestimation of Cost. Many SMB leaders hold a misconception about pre-employment background screening, namely that it’s exorbitantly expensive. If you’re open to the possibility of outsourcing your employment background checks, you can typically conduct pre-employment background screening for no more than $50 per job candidate.

Top 5 Reasons Why SMBs should Conduct Employment Background Checks

1. Decreased Costs. You’ll find better job candidates if you conduct pre-employment background screening. Improved hiring means that you’ll spend less money counteracting negative PR, lose less money to negligent hiring lawsuits, and see fewer employee-generated losses, such as embezzlement. Finally, it’s typically much less expensive to outsource employment background checks, rather than doing them in-house.

2. Fewer legal trip-ups. Each state has its own law in place regarding negligent hiring. These laws are intended to protect the public by preventing dangerous individuals from being hired for delicate positions. As an example, many states’ alcohol laws require that employees have three years of felony-free history before they can be hired for a job that involves serving alcohol. Failing to check out candidates backgrounds through pre-employment background screening opens you to the risk of being sued or fined for failing to do your due diligence on new hires.

3. Safer Employees. Human Resource gurus estimate that 1 out of 10 job applicants have a criminal history. If you don’t carry do employment background checks, it’s more likely that you’ll hire a dangerous individual who could hurt your employees, your customers, and your business’ reputation.

4. Accelerated hiring. The majority of pre-employment background screening companies offer results in 48 hours. In this sense, outsourcing employee background checks can mean speedier hiring. In just a day or two, you can get the information you need to determine if that seemingly perfect candidate has any skeletons lurking in his or her closet.

5. Discover dishonesty in applications. Here’s another scary HR statistic for you: researchers calculate that approximately 4 out of 10 resumes feature deceitful omissions, if not total lies. Employment background checks reveal such dishonesty so that you can avoid hiring mendacious individuals.

As we’ve seen, there are many reasons why owners of small and medium-sized businesses should arrange employee background checks.

Oil Rig Employment How To Get Hired Faster

Posted on by

The world still runs on oil, with no viable substitute in sight, and prospects for oil rig employment remain strong. While there is a recession going on and a few oil companies are keeping their oil rigs idle (and retrenching workers), other oil companies are actually hiring more workers to man their oil rigs. As long as you look for offshore oil rig jobs in the right place, you can still get a job.

Have you ever worked in oil rig jobs? If not, this is a good time for you to get some subsidized training. The Department of Labor has a JobCorp program works with technical colleges training for disadvantaged youths. Some of their training programs are relevant to the oil and gas industry.

Even if you don’t meet the requirements for subsidized training, you may want to pay your own way. Remember that oil rig employment pays two times more than any other industry for doing the same job. If the training increases your chances of getting oil rig jobs, isn’t it worthwhile?

Apart from oil rig specific training, you should also aim for a few other certifications – offshore survival, helicopter underwater escape training and first aid. In addition, get your passport, vaccinations and medical certificates ready and up-to-date. Some states or countries may have additional paperwork you need to comply with. Remember to do some reading on maritime law – in some countries offshore oil rigs legally count as ships.

Make sure you have a bag packed and ready to go. Get your personal affairs settled ahead of time – your insurance, mortgage, property taxes, utilities bills and phone bills, etc. If you get a job offer, you want to start ASAP. It is foolish to delay – this only gives time for things to go wrong.

Don’t worry about the recession, there is still plenty of oil rig employment available. You just need to look in the right places. Just get all your training and paperwork ready ahead of time so that the human resource department has no excuse to shred your resume.