Washington State Supreme Court Keeps the Pressure On State Legislature to Properly Fund Public Education
The McCleary school funding lawsuit has been active for years, and it still rages on. What follows is language from a November 15, 2017, Order from the Washington State Supreme Court that is keeping the pressure on Washington State's Legislature to properly fund public education. These two paragraphs will give you a feel for the legal issue and facts. If you're interested in reading the full Order, you can download it here.
"In McCleary v. State, 173 Wn.2d 477, 539, 269 P.3d 227 (2012), this court unanimously held that the State was not meeting its "paramount duty... to make ample provision for the education of all children residing within its borders." Wash. CONST, art. IX, § 1. Recognizing that the legislature had enacted a promising set of reforms and was making progress toward funding those reforms, the court deferred to the legislature's chosen means of discharging its constitutional duty. McCleary, 173 Wn.2d at 484, 543-44. However, the court retained jurisdiction to help ensure steady and measurable progress in the State's plan to fully implement reforms by September 1, 2018, a deadline the State itself had set."
"Nearly six years have passed, and today, the court must determine whether the State has made the grade. As explained below, over the past several years the State has made significant progress in fully funding the program of basic education, including by amply funding most of its components. Further, the 2017 legislature enacted a funding system that, when fully implemented, will achieve constitutional compliance according to the benchmarks that have consistently guided judicial oversight. However, by its own admission, the State will not meet the established deadline of September 1, 2018, as to all components. Instead, the funding system adopted in Engrossed House Bill 2242, 65th Leg., 3d Spec. Sess. (Wash. 2017) (EHB 2242) delays by over a year implementation of a constitutionally compliant salary model, a critical part of meaningful reform. While the court can appreciate the political and budgetary challenges that may explain the State's decision to postpone full funding of the salary model, it cannot accept part compliance as full compliance. The court's constitutional responsibility is to the schoolchildren of this state who have an enforceable right under article IX, section 1 to an amply funded education. We cannot erode that constitutional right by saying that the State is now "close enough" to constitutional compliance. The goals have long been clear, the deadline has long been clear, and the meaning of "amply fund" has long been clear. Until the State enacts measures that fully implement its program of basic education by the September 1, 2018 deadline, it remains out of compliance. The court will retain jurisdiction, continue to impose daily sanctions, and reserve all enforcement options to compel compliance with its decision and orders."
Employment Law Update - Employment Discrimination Plaintiffs Need Not Prove Replacement by Someone Outside Protected Class
An employment discrimination plaintiff makes a prima facie case of discrimination by showing that (1) she was within a statutorily protected class, (2) she was discharged by the defendant, (3) she was doing satisfactory work, and (4) after her discharge, the position remained open and the employer continued to seek applicants with qualifications similar to the plaintiff.
For years, Washington courts have held that employment discrimination plaintiffs must prove that they were replaced by someone outside of their protected class--the replacement element. For example, if the employment discrimination plaintiff was female, she had to prove she was replaced by a man; if the employment discrimination plaintiff was over 40-years of age, he or she had to prove they were replaced by someone under 40-years of age. This often created often monumental burden for employment discrimination plaintiffs.
The Washington State Supreme Court, in a decision published today (Mikkelsen v. Public Util. Dist. No. 1, 2017 Wash. LEXIS 985 (10.19.2017), held that the replacement element is not required to prove a prima facie case of employment discrimination. This decision will make it easier for employment discrimination plaintiffs to prosecute their claims and harder for employers to defeat these claims.
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When an limited liability company (LLC) is dissolved, the members and managers can still be on the hook for liabilities of the company. However, Washington law allows the LLC to force the issue with known creditors. First, the LLC has to file a Certificate of Dissolution with the Secretary of State. Then, it has to follow this procedure, which is set out in RCW 25.15.301:
(2) A dissolved limited liability company may notify its known claimants of the dissolution in a record. The notice must:
(a) Specify the information required to be included in a known claim;
(b) Provide a mailing address to which the known claim must be sent;
(c) State the deadline for receipt of the known claim, which may not be fewer than one hundred twenty days after the date the notice is received by the claimant; and
(d) State that the known claim will be barred if not received by the deadline.
(3) A known claim against a dissolved limited liability company is barred if the requirements of subsection (2) of this section are met and:
(a) The known claim is not received by the specified deadline; or
(b) In the case of a known claim that is timely received but rejected by the dissolved limited liability company, the claimant does not commence an action to enforce the known claim against the limited liability company within ninety days after the receipt of the notice of rejection.
This will force the creditor to put up or shut up. It's a risky move, but this might be a way to thwart off pesky collection agencies who seem to never go away, and this could be a better option than bankruptcy. Be sure to talk this over with your lawyer first.
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This week I received a voicemail message from a person who identified himself as a federal agent holding a non-bailable tax crime warrant under my name. Pretty scary, but it's a scam.
The caller's number is (845) 584-1378. You can listen to the voicemail message below.
My Internet research on this number reveals that they will demand a direct wire transfer from Western Union or Walgreens without any delay to stop the arrest from happening the next day.
Don't return this call if you get this same voicemail message. In addition to demanding an immediate wire transfer, they will most likely run you through and "account verification" process that asks you to reveal personal information that they will use to steal your identity.
Contact Mark D. Walters (non-scammers only, please).
The Washington State Supreme Court just issued a new decision on the topic of meal breaks. You can download the opinion at the link below. The case centered on this Washington regulation that requires employers to allow employees to take meal breaks:
WAC 296-126-092 states in relevant part: "( 1) Employees shall be allowed a meal period of at least thirty minutes which commences no less than two hours nor more than five hours from the beginning of the shift. Meal periods shall be on the employer's time when the employee is required by the employer to remain on duty on the premises or at a prescribed work site in the interest of the employer."
The Washington Supreme Court issued this directive for cases that involve claims of failure to allow meal breaks: "An employee asserting a meal break violation under WAC 296-126-092 can establish his or her prima facie case by providing evidence that he or she did not receive a timely meal break. The burden then shifts to the employer to rebut this by showing that in fact no violation occurred or that a valid waiver exists." The Court reasoned that "this should not be an onerous burden on the employer, who is already keeping track of the employee's time for payroll purposes."
I'm not sure I agree that it is going to be easy for employers to prove waiver simply because it keeps track of hours worked. Under Washington law, waiver is the intentional and voluntary relinquishment of a known right; waiver can result from an express agreement or be inferred from circumstances indicating an intent to waive. To constitute implied waiver, there must exist unequivocal acts or conduct evidencing an intent to waive; waiver will not be inferred from doubtful or ambiguous factors. This is a pretty high standard, and it is not that easy to meet this burden.
Brady v. AutoZone Download
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The unanimous Declaration of the thirteen united States of America,
When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
We hold these truths to be self-evident; that all men are created equal; that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness;--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed; --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shown, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.--Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.
In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.
Nor have We been wanting in attentions to our British brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which, would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.
We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.
Employer's really don't like that their employees can sue them, and if the employee prevails, the employee is entitled to recover his or her attorneys fees from the employer. Like it or not, that's what the law says for the vast majority of statutes that protect employee's civil rights and from retaliation.
The United States Congress explained the reason for including the payment of a employee plaintiff’s fees and costs as part of the damages in employment cases in the Senate Report on Civil Rights Attorney's Fees Awards Act of 1976, 42 U. S. C. § 1988: “If private citizens are able to assert their civil rights, and if those who violate the nation’s fundamental laws are not to proceed with impunity, then citizens must have the opportunity to recover what it costs them to vindicate these rights in Court.”
The U.S. Supreme Court has noted that these fee shifting statutes are intended by the U.S. Congress "to ensure effective access to the judicial process" by properly compensating attorneys to ensure that employees had the ability "to attract competent counsel" to represent their claims. Justice Alito, in Perdue v. Keeney, wrote that these fee shifting provisions are intended "to ensure that federal rights are adequately enforced."
Many state statutes that protect civil rights and employees from retaliation also include attorney fee provisions that allow a successful plaintiff to recovery attorney fees and costs incurred. The policy is the same as noted above.
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Washington employers are required to pay their workers for a rest break of at least 10 minutes for each 4 hours worked. The rest break must be allowed no later than the end of the third hour of the shift.
Employers may allow their workers to take several "mini" breaks in each 4 hours of working time. If these mini breaks total 10 minutes this substitutes for a scheduled rest break. Examples of mini rest breaks are personal phone calls, eating a snack, personal conversations, smoke breaks, and whenever there is no work to do for a few minutes during a work shift.
If more than 5 hours are worked in a shift, Washington employers must allow their employees to take at least a 30-minute meal period. The employee must be at least 2 hours into their shift before the meal period can start, and the meal period cannot start more than 5 hours after the beginning of the shift.
Meal Periods - Paid or Unpaid
Meal period breaks are unpaid unless:
Employees can waive their right to a meal period if they prefer to work through it and if the employer agrees. The Department of Labor & Industries recommends that you get a written statement from workers who want to give up their meal periods.
For more detailed information, the Washington Department of Labor and Industries has an excellent downloadable PDF on this topic.
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You will often find a provision in a contract that sets a pre-determined dollar amount one party will pay the other if there is a breach of contract. These are called liquidated damages provisions. You will find them in construction contracts, leases, any many other types of contracts.
Under Washington State law, true liquidated damages clauses, those that are not penalties, are favored and will be upheld. Washington court have held that liquidated damages agreements that are fairly and understandingly entered into by experienced, equal parties with a view to fair compensation for the anticipated loss should be enforced. However, if the parties to the contract are not on equal footing, or if the amount stated is a penalty with no reasonable relation to actual damages will be construed as a penalty, and the liquidated damages provision might not be enforced.
As you can see, there is room for legal positioning and several defensive arguments that might apply in a breach of contract case concerning a liquidated damages provision, so it's best to understand the law before inserting one in your contracts.
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"What is the Feedback Clause?
The Feedback Clause has its variations, but it typically reads something like this:
Any ideas, suggestions, comments one party makes or delivers to the other party that concerns the other party's products or services ("Feedback") may be used and commercially exploited by the party receiving the Feedback.
Why is the Feedback Clause Used?
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