How To Handle Harassment And Discrimination Complaints
Employees have the right under the law to report discrimination or harassment to an employer. An employer should deal with harassment or discrimination complaints immediately. The failure of an employer to conduct an investigation can lead to much bigger problems, such as a lawsuit.
When an employee files a harassment or discrimination complaint, an employer should:
• Listen to the accuser
• Take the complaint seriously
• Not retaliate against the accuser
• Keep the complaint confidential
• Not delay in conducting an investigation
• Conduct a thorough investigation
• Document the investigation
• If necessary, hire a third party to conduct the investigation
• Discipline a guilty party
Listen to the Accuser
Take the time to listen to the accuser’s complaint. Even if a workplace seems free of conflict, this does not rule out the possibility of harassment or discrimination. Avoid making the following mistakes when listening to an employee’s complaint:
• Do not make assumptions about the truthfulness of the complaint;
• Do not reach unfounded conclusions;
• Do not fail to recognize whether a complaint involves illegal discrimination based on sex, race, national origin, disability, age, or religion;
• Do not decide not to investigate.
Take All Harassment Complaints Seriously
There is nothing worse for an employee than to make a complaint that is not taken seriously by an employer. Even if the employee has a history of making complaints, it is necessary to consider each one seriously. The failure to treat a compliant with sufficient seriousness may lead an employee to file a complaint with the Equal Employment Opportunity Commission (EEOC), the federal government agency charged with enforcing laws against discrimination in the workplace.
The details surrounding a complaint should be kept as confidential as possible. Even though it may be impractical to keep the allegations completely confidential, attempt to keep as many details a secret as possible. This will prevent employees from taking sides or spreading rumors. Make sure the accuser is aware that the investigation will result in the disclosure of some information.
Delaying the investigation of a complaint could create several problems. A delay may indicate the employer’s failure to take the complaint seriously, could result in further harassment of the accuser, may allow the loss of relevant evidence, or may result in inadequate discipline of the accused.
Conduct a Thorough Investigation of Complaints
An investigation of a complaint should involve corroboration through interviews of the parties involved, witnesses, and through the identification of evidence. When interviewing the accuser and the accused, ask the following types of questions:
• What happened;
• Where did it occur;
• What was said;
• What witnesses were present;
Make sure to distinguish fact from opinion. Corroborate the stories of the accuser and the accused by interviewing witnesses present when the incident occurred and by gathering other types of evidence. Evidence can include emails, time cards, schedules, and notes from meetings.
Do An Investigation And Document It Carefully
It is important to keep a written record detailing the steps taken in an investigation. This could become essential evidence if the employee files a complaint with the EEOC. If the EEOC conducts its own investigation, it will request the documentation created by employer. Documentation can include a formal report of the employer’s findings or notes that provide details about interviews, discipline imposed on the accused, the reason for not imposing discipline, and conclusions.
Hire Ascent Law LLC to Do the Investigation
In some circumstances, it may be best to hire a third party, such as a lawyer, a law firm, or a consulting agency, that specializes in employee harassment and discrimination complaints. This may be appropriate in situations where the accusations have become public, when an employee lodges a complaint against a high-ranking superior, or when the charges are criminal in nature.
Imposed Discipline If Appropriate Or Terminate Employment
If an investigation turns up evidence that the accused did engage in the alleged discrimination or harassment, an employer should institute appropriate discipline. In some cases, a suspension, a warning, or counseling may be adequate. In other circumstances, when the actions of the accused involved threatening behavior or violence like rape, unwanted touching, or stalking, termination may be the most appropriate disciplinary action.
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It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!
Federal employment discrimination is a heavily regulated subject, and when hiring an employee, there are a host of rules and regulations that an employer can run afoul of. Many of these laws only apply to certain employers, and many of these laws have exceptions. Here is an overview of the regulatory framework regarding federal employment discrimination.
Overview of Applicable Federal Laws Prohibiting Employer Discrimination
Although this list is not exhaustive, these are the most commonly litigated areas of employment discrimination law:
• Title VII of the Civil Rights Act of 1964 (Title VII);
• The Equal Pay Act of 1963 (EPA);
• The Age Discrimination in Employment Act of 1967 (ADEA);
• The Immigration and Reform and Control Act of 1986 (IRCA);
• Title I and Title V of the Americans with Disabilities Act of 1990, as amended (ADA);
The Equal Employment Opportunity Commission (EEOC) is the primary federal agency for enforcing most of these laws.
Title VII of the Civil Rights Act
Title VII prohibits employers from discriminating against employees and applicants based on their race, color, religion, sex or national origin. Title VII also protects individuals against being discriminated against based on association with any of the above protected categories. For example, firing someone because they associate with a religious group you don’t approve of would violate Title VII. Finally, Title VII protects against harassment as well as retaliation based on the protected categories listed above.
Title VII only applies to the following employers:
• Private employers if they have more than 15 employees; • Federal government employers;
• State government employers and their political subdivisions;
• Labor organizations;
• Employment agencies.
The Equal Pay Act
The Equal Pay Act prohibits discrimination on the basis of sex in the payment of wages for equal work. To be equal work, the work must “require equal skill, effort, and responsibility, and be performed under similar working conditions.” In other words, the general rule is that if a man and a woman perform the same job, they should be paid the same. The exceptions to this general rule are when difference is pay is based on “a seniority system, a merit system, a system which measures earnings by quantity or quality of production or a differential based on any other factor other than sex.”
The ADEA applies to the following employers:
• Private employers if they have more than 20 employees;
• Federal government employers;
• State government employers and their political subdivisions if they have more than 20 employees;
• Labor organizations;
• Employment agencies.
The Immigration and Reform and Control Act
IRCA prohibits employers from discriminating against employees or applicants based on their citizenship or national origin, and also makes it illegal to knowingly hire or recruit illegal immigrants
Note that this overlaps with Title VII, but applies to employers that Title VII may not cover. This is because IRCA applies to all employers who have more than four employees and is not nearly as limited as the list of employers covered by Title VII.
The Americans with Disability Act
The ADA prohibits employment discrimination against qualified individuals with disabilities. The ADA also prohibits employment discrimination against individuals who associate with or are related to individuals with disabilities. For example, this means that you cannot refuse to hire someone because their child is disabled.
What qualifies as discrimination under the ADA can be fairly complex but there are a few simple rules to keep in mind in order to comply with the ADA:
• Ask the Same Questions of Everybody: Make sure you ask the same questions of all applicants, don’t just ask people you think may be disabled. If you only ask a disabled person whether they can lift something that likely violates the ADA.
• Inquiring About “Accommodations” for Disabled Applicants: If there is no reason to believe that the applicant is disabled, you cannot ask whether the applicant needs any special accommodation (special equipment or help). If there is a reason to believe that the applicant is disabled, because it’s obvious (e.g., the applicant came in a wheel chair) or because the applicant told you about a disability, then you can ask whether the applicant needs any special accommodation.
• Employers are Free to Hire the Most Qualified Applicant: Employers can often misread the ADA’s anti-discriminatory intentions as requiring them to give people with disabilities special treatment. The ADA does not require an employer to give any preferential consideration to a disabled applicant over other qualified applicants. An employer is free to select the most qualified applicant available.
The ADA applies to the following employers:
• Private employers if they have more than 15 employees;
• Federal government employers if they have more than 15 employees;
• State government employers and their political subdivisions if they have more than 15 employees;
• Labor organizations if they have more than 15 employees;
• Employment agencies if they have more than 15 employees.
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When you need legal help with your business and discrimination claims in Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.
Just as time extends infinitely into the past and future, place may be anything from a point with no dimensions to the infinity of space in all directions. As the content of a segment of time is called the history of Utah, a small area–84,990 square miles–of the earth’s surface is arbitrarily named Utah. Viewed from space there is no change from red to blue at its border as on the map in the atlas. Yet place may be defined, and Utah may be distinguished from all other places. Place may be an office occupied by Brigham Young and defined in terms of furniture, size of room and other such details, or the entire building, or the political unit–a city–where it is found, or a range of mountains next to which it stands. The physical characteristics of each place differentiate it and have some impact upon the events that occur through time in its location.
The United States regulates a variety of securities activities conducted within its borders. Distributions of securities, the activities of broker-dealers and investment advisers, the operation of stock exchanges, the conduct of investment companies and a variety of other securities-related activities are subject to a comprehensive body of regulation. The US domestic regulatory standards apply to non-US market participants to the extent their activities directly affect the United States, which raises the possibility that the non-US market participants will be subject to inconsistent regulation. This problem is especially prevalent in the area of the disclosure required in connection with securities distributions, because the United States has a comprehensive set of requirements. The US accounting standards, in particular, cause difficulties for non-US issuers. The US requirements for financial intermediaries, such as broker dealers, impose significant US regulation on non-US market participants. If your business needs assistance with securities regulations and disclosures, speak to an experienced Midvale Utah Corporate lawyer.
The rationale behind this disclosure requirements is that retail investors must have sufficient information on which to base their investment decisions. The view was taken that market forces alone were not enough to compel issuers to provide adequate information so the disclosure was made mandatory. The requirements are substantially the same for all issuers, to ensure that investors will be able to compare different companies.
The same considerations do not apply to certain institutional investors, who are deemed capable of looking after their own interests. It is thought they are better equipped both to know what information is important to their investment decisions and to obtain that information. However, offerings that are made only to institutional investors seldom attract the same level of regulation.
In order fully to protect US retail investors, the disclosure requirements apply to all offerings that include such investors. Thus, a non-US issuer that wants to make a US public offering must provide disclosure that is, with limited exceptions, identical to that which a US issuer must provide. In addition, a non-US issuer that conducts a public offering, or lists its securities on a US stock exchange (or obtains a NASDAQ quotation), becomes subject to the ongoing periodic disclosure requirements of the Exchange Act.
The SEC regulates corporate and individual disclosure in connection with the purchase and sale of securities, and in regard to the governance of the publicly held corporation. Under the Securities Act of 1933 the commission has established a structure of mandatory disclosure for the offer and sale of securities by corporations and controlling shareholders. Pursuant to that regulatory system, corporations prepare elaborate disclosure documents called prospectuses and registration statements. The Securities Exchange Act of 1934 requires the commission to establish a system of mandatory disclosure for proxy statements in connection with meetings of shareholders. Requirements are established for routine meetings as well as extraordinary meetings that involve proxy contests and major mergers and reorganizations. The commission also has established a complex system of mandatory financial and accounting disclosure for various classes of publicly held corporations. Pursuant to this structure, corporations prepare annual reports on Form 10K and periodic reports on Forms 8K and 10Q. The purpose of mandatory disclosure is to winnow out the false from the true. A related purpose is to produce a complete and informative description of the business. It is a modern form of censorship designed by a concerned entity.
The question in SEC regulation is whether some or all of speech governed by the SEC is speech that receives some First Amendment protection. It is now traditional doctrine that commercial speech (at least truthful commercial speech) receives such protection. Commercial speech, as we have seen, is the advertisement of particular products or services for business gain.
Fraud prosecution involves a kind of after-the-fact-of-publication litigation. It can operate without the presence of mandatory disclosure rules. A “simple” form of fraud prosecution would involve a suit by, let us say, an aggrieved buyer against a seller of securities to her. She would allege deceit, materiality of the lie, reliance, and harm. Is the misrepresentation commercial speech?
A somewhat more complicated fraud case might be involved when a publicly held corporation, not engaged in buying or selling its securities, issues a misleading press release, an area not necessarily covered by specific disclosure rules. It runs the risk that the commission may seek to enjoin the statement on grounds of fraud. The court may add ancillary remedies to the naked injunction. Such forms of relief may involve, for example, replacement of the old board with a new board acceptable to the SEC. The Justice Department may pursue the corporation and offending officers criminally.
A famous branch of fraud prosecution involves insider trading. The paradigm case is a transaction in which a corporate insider trades in corporate stock without disclosure of material facts. The insider does not lie or mis represent. It is a silence case in which the courts generally hold that the insider has a duty to disclose to the shareholders, or refrain from trading.
Brokers and dealers play a significant role in the smooth operation of the securities markets. They act as agents in the purchase and sale of securities by retail and institutional investors and conduct significant proprietary trading. Brokers and dealers played a major role in the 1929 stock market crash. Brokers had extended a large amount of credit to investors for the purchase of securities and many were undercapitalized. When stock prices started to fall, investors were unable to repay the loans and were forced to sell their securities at’ a loss, forcing prices down even further. A combination of incompetence, malfeasance, bad luck and bad judgment meant that the entire system was overextended and could not withstand the shock of falling stock prices.
Because of the importance of broker-dealers to the market, regulation of their activities was another major element of the regulatory reform after the crash. Key areas where more rigorous standards were introduced included capital adequacy requirements, limits on the amount of credit that can be extended for the purchase of securities and supervisory and recordkeeping requirements. To ensure that US investors benefit from these protections, it is a requirement of the US regulatory system that only broker-dealers that are registered with the SEC, and are therefore subject to the regulations, can deal with US investors. Whereas distinctions were made in the Securities Act based on whether distributions were made to the public or only to sophisticated institutions, no such distinctions were initially made under the Exchange Act; broker dealer registration is required in order to do business with any customer in the United States. If you are a broker in the securities market, an experienced Midvale corporate lawyer can assist you comply with the regulations and ensure that you are not subject to any penalties or criminal prosecution.
If you are a business owner you should be aware of commercial speech and the First Amendment. Until fairly recently, in constitutional jurisprudence, what has come to be known as commercial speech had been excluded from the coverage of the First Amendment. Commercial speech, most narrowly construed, is any speech or publication that advertises a product or service for profit or business purposes. Some authorities, however, assert a considerably broader definition of the concept. Commercial speech has been extensively regulated at the state and federal levels. For example, food and drug ads are subject to extensive regulation. The states and the federal government extensively regulate the speech and publications of corporations and other business entities. Remember the government through various agencies enforce these regulations. If your business violates any of these regulations, it could spell trouble for you. Your business may have to pay penalties. Violations of some of these regulations can result in criminal prosecution. Be safe. Seek the assistance of an experienced Midvale Utah corporate lawyer.
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When you need legal help with your business in Midvale Utah, please call Ascent Law for your free consultation (801) 676-5506. We want to help you.
Oftentimes people wonder whether they need a corporate attorney to help them with a case. If you have a corporation, limited liability company (“LLC”), partnership, or other entity, you may need corporate counsel.
A corporation is a legal entity apart from its owners (shareholders). Corporations can establish credit, acquire assets, and enter into contractual engagements. Potential liabilities are incurred by the corporation, not by the owners themselves. This means that the personal assets of officers and shareholders are usually safe from the corporation’s creditors. However, if shareholders fail to follow corporate formalities, a court may “pierce the corporate veil”, allowing creditors access to personal property. Owners of corporations don’t pay tax on the corporation’s earnings unless they actually receive the money as dividends or as compensation for services (e.g. salaries and bonuses). The corporation itself pays taxes on all profits left in the business.
Benefits of a Corporation
First and foremost, there is limited liability for shareholders. This perk attracts investors, as an investor’s liability and exposure is limited to the amount of his or her investment – less risk! This makes raising capital for your corporation less challenging.
Forming a corporation also increases the credibility of your company, and provides an opportunity for prestige among business and corporate officers.
Finally, corporations have several tax, compensation and wage benefits.
Detriments of a Corporation
You have to observe corporate formalities. These are the basic operating rules that are necessary to ensure that the corporation maintains its status as a separate legal entity. Some of the formalities include appointing officer positions, electing a board of directors, proper documentation of the corporation’s activity, annual meetings, etc.
Reaching corporate status is not a monumental task, but one must be sure to ensure the process is done correctly.
Another downfall is that a corporation goes through double taxation. A traditional corporation must pay tax on all corporate income, followed by individual shareholders paying income taxagain on whatever distributions they received. One way to avoid the double taxation dilemma is to establish the corporation as a “pass through” entity. This way all corporate profits pass through to the individual shareholders, so they alone will be responsible for the tax burden. When a corporation elects to be treated this way, it becomes known as an “S” Corporation, which is discussed below.
Nonprofit organizations are formed in the state where they intend to do business. Unlike a standard corporation, nonprofits do not conduct activities for the financial gain of shareholders. Preventing the distribution of profits to members/shareholders is what distinguishes the nonprofit from a commercial enterprise; yet nonprofits still provide asset protection and limited liability. A nonprofit corporation is not forbidden from making a profit — but if it does, that profit can only be used to further the overarching goal or mission of the organization. Nonprofits can also trade at a profit and accept, hold and disburse money; but all profit and things of value are to be used to further the nonprofit’s quest. Nonprofits are organized in many different ways: charities, service organizations, trusts, hospitals, universities, foundations, endowments and cooperatives can all operate as nonprofits. Nonprofits can have “members”, although many do not. They may have employees, and can compensate their directors reasonably, but only if compensation is documented ever-so-carefully.
Benefits of a Nonprofit
Nonprofit corporations generally have tax exempt status.
Once the recognized nonprofit entity has been formed at the state level, the nonprofit corporation can seek tax exempt status by applying to the IRS. The IRS, after reviewing the application to ensure the purpose of the organization meets certain conditions, will issue an authorization letter granting it tax exempt status for income tax purposes. The exemption does not apply to other federal taxes such as employment taxes. Charitable contributions made to nonprofit organizations by individuals and corporations are also deductible.
Detriments of a Nonprofit
The reliability by which a non-profit organization can hire and retain staff, sustain facilities, or create programs is an ongoing problem. Because nonprofits generally rely on external funding, they do not have much say over their precious sources of revenue. This leads to reliance on government funds such as grants, contracts, vouchers or tax credits to support their operations.
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If you are here, you probably have a business law issue you need help with, call Ascent Law for your free business law consultation (801) 676-5506. We want to help you.
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