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A HOSTILE WORK ENVIRONMENT

This phrase gets used frequently in employment disputes but not in the correct legal sense. Under Federal law a "Hostile Work Environment" means a situation at work where one employee or supervisor is harassing or making the work unbearable for an employee on the basis of a protected category. It is most commonly used in sexual harassment cases where one person constantly makes unwelcome sexual advances or comments to another worker. This is in contrast to the "quid pro quo" form of sexual harassment that requires sexual favors for work benefits.

In Nevada, working in a hostile work environment is not by itself actionable in court. You boss can be a mean jerk who constantly checks your work and spies on you and this does not create a cause of action for a hostile work environment. If you are and "at will" employee (and most are) your remedy for this type of job situation is to find another job. If you are always falsely accused of taking property from work or of coming in late, you can be fired and there is no recourse through the courts. If you are an "at will" employee your only recourse is to find a better job. If you have a written employment contract or are in a Union you may have some contractual remedies.

However, if you are being harassed and verbally abused because of your race, religion, gender, sexual orientation or old age you may have recourse under federal law. If your environment at work is hostile for any of these reasons then the actions of your employer could be illegal. But your employer has to know about it or should have known about it.

The best way to make it known is to complain to a supervisor or a Human Resource representative. Companies with 15 or more employees are prohibited from discriminating against their employees. These days most companies have policies and procedures for dealing with Harassment and Discrimination claims. Before you quit your job you must first comply with company policy. If that doesn't resolve the situation and it continues you can go further with your action or possibly leave your job under what could qualify as a constructive discharge.

The problem with these situations is that they require you to complain to someone at work. In some companies this can be enough to get you fired. As an "at will" employee they don't need a reason to fire you. If your situation at work is really bad or "hostile" go consult an attorney. If there is no legal recourse you need to look for a better job. That is the most common resolution in Nevada for a "hostile work environment".

AGE DISCRIMINATION

Age discrimination is an issue that seems to come up as we all get older. In our twenties and thirties we don't think about it at all, then after we turn forty and especially fifty we become more attuned to it. Federal Law prohibits discrimination based on age. You are in a protected class if you are forty or older.

The classic case of age discrimination is when a business fires an older employee, say, someone over 60, and replaces them with an employee in their twenties who is paid half as much to do the same job. The law use to provide for the inference to be drawn that the person was terminated because of their age. With a recent Supreme Court decision you now have to prove that "but for" the persons age, he wouldn't have been fired. It is rare to have a case where the employer says or puts in writing that they are terminating an older employee to hire a younger one. This new standard makes it very difficult for a Plaintiff to succeed in litigation.

Some businesses might be gun-shy of terminating someone over forty but if there is just cause it isn't an issue or if the employee is "at will" there are few restrictions on their termination. But the reasons need to be documented properly. What the law prohibits is the discriminatory termination of older employees so the company can just pay less in salary and benefits. Sometimes those yearly pay increases over a long period of time catch the eye of someone in finance who is looking to cut costs and personnel costs are usually one of a companies biggest expense categories.

Also the federal law only applies to businesses with over 15 employees. If you are a small company then you have fewer restrictions on your ability to terminate employees. But if you have more than fifteen employees and they are all "at will" you still can't discriminate based upon age.

If an employee feels that they have been the victim of age discrimination they must file a complaint with the Equal Employment Opportunity Commission within 300 days before they can file a lawsuit. Also you must bring it to the attention of the company's Human Resources department if they have one.

If you are not sure how to proceed either as an employee or an employer it is best to consult an attorney that practices in this area of the law.

JUSTICE DELAYED IS JUSTICE DENIED

Many of us have heard of our right to a speedy trial. This applies in criminal cases and is based on the notion that such serious allegations should be resolved quickly especially if a person is in jail. But that concept does not apply to civil litigation.

Civil litigation is a dispute between two or more parties. Criminal actions involve the State trying to incarcerate someone for committing a crime. A typical civil lawsuit is for breach of a contract or for injuries suffered in an automobile accident. If you are the aggrieved party you can file an action in state or federal court. Lawsuits in Federal Court must meet certain requirements such as involving federal questions of law, the federal government is a party, or the parties live in different states.

In either court you initiate a lawsuit by filing a complaint. You then have 120 days to serve (give a copy to the defendant) the complaint. After the defendant is served he has 20 days to file an answer. Usually both sides will have an attorney. But a defense attorney has much different motivation than the plaintiff's attorney. Defense attorneys are usually paid by the hour. Plaintiff's attorneys can be hourly but in personal injury cases and employment cases they are usually on a contingency. This means that the plaintiff's lawyer doesn't get paid unless they win and he gets a percentage of the winnings.

A plaintiff's attorney on a contingency matter wants to move the matter along and get it resolved either through settlement or by trial. But a defense attorney doesn't have the same motivation, because they are paid by the hour. If they settle early they don't make much money. But if they can conduct extensive discovery (gathering of evidence) over a period of years they can make a huge amount of money. And that is what they like to do.

Now, spending a lot of time and money on discovery, costs a client a lot of money. But it is not uncommon for a defense attorney to be retained and paid by an insurance company where money is plentiful. Under the guise of needing all the information they can get, defense firms do massive discovery before they advise their client on whether or not to settle the matter.

Before settlement even is considered they make their motion to have the case dismissed by a process called Summary Judgment. Summary Judgment will only be granted if the facts are not in dispute. In such a case, as a matter of law, the plaintiff loses. These motions can be hundreds of pages long and take months to resolve. The defendants have nothing to lose if it is denied. They still get to go to trial. The defense attorney makes another bundle of money by filing these motions.

So how long does all this take before you even get to go to trial? It can take three or four years. Who does this delay favor? The defendant because he doesn't have to pay any judgment for several years and maybe the plaintiff will just get worn down and take less than he is entitled to.

Is this fair? Is this justice? No. But it is the system. If you have been injured or wronged you can file a lawsuit. Just be ready to hunker down for several years as the defense lawyers run up their fees.

PRAYER AT SCHOOL

The end of the traditional school year is coming and with it are the numerous graduation ceremonies. Many of us remember the old invocations at these ceremonies given by a local pastor or minister. Times have changed and the United States Supreme Court has cracked down on clergy giving prayers at graduation. But it is a misnomer to think that prayer has been banned from public schools.

Many people are under the impression that students are prohibited from praying at public schools. This is far from the truth. At any point during the school day a student can pray quietly. If the prayers are more active or verbal, they can do it at recess and at lunch. What is prohibited is the school bringing clergy onto campus to lead prayers.

The Court has also held that employees or agents of the school district cannot lead students in prayer. This is prohibited by the First Amendment to the Constitution that requires the separation of church and state. But if students can pray anytime on their own what is all the uproar about letting teachers lead prayers?

First and foremost is that school personnel are not trained to lead prayers and are already overworked and underpaid without adding this new religious task to their list. And then there is always the question of which prayer is acceptable to everyone?

Many people think there is no harm in having a teacher lead a class in a Christian prayer because we are a Christian country. But actually we are not a Christian country. Our nation's founding fathers had that choice to make and decided against it, referring to God but to no specific faith. European history is riddled with problems that arose when church and state were not separated. Take the Inquisition for example.

Our teachers are trained in education not religion. No one is prohibited from attending the church or religious institution of their choice. Also, no one is precluded from having their children say a prayer before they go to school or after they come home. And as I stated before a child can pray all they want at school on their own.

So religion has not been banned at our public schools, it is just not conducted by school officials. And the school is not deciding what is the correct prayer for all our children to recite. Whether you are Catholic, Baptist, Jew or Muslim your child's school won't be infringing on your religious practices.

As the saying goes: "As long as there are tests there will always be prayer at schools." These will be student prayers, not someone else's.

PUBLIC SCHOOLS IN CRISIS

Now that the legislature is out of session our public schools are once again going to have to take a budget hit. The Washoe County School District was cut approximately 20 million dollars. But I didn't hear any uproar from our Board of Trustees. The school district will just smile and say we will still provide a good education for our children.

Well that's not going to happen. The school district's budget has been cut every year for the past decade. But still the Trustees say everything will be ok. Our class sizes will increase to over 30, we are short on essential supplies so we are charging families for paper and pencils, and we can't keep up with technology. That's not my definition of "ok".

Educational programs are being cut. Fewer electives are being offered, and teacher salaries are low. But for some reason parents are being lulled into complacency. We still send our children to school and they come home at about the same time. As a babysitting service the schools are quite dependable.

So what needs to be done? For one thing we need to accept that we have an educational crisis. Our teachers can't keep doing more with less. Our educational funding system doesn't work anymore and has to be changed. But without public outcry it won't happen. So how can we motivate the public?

How about shortening the school week? No school on Fridays unless there is a 20% increase in the school budget. Parents would then have to find something to do with their children every Friday. Or how about cutting sports? This always gets parents to come out of the woodwork. If the legislature is only funding core subjects then get rid of sports. You don't need sports to graduate. The District is always willing to cut art and music so we should add sports to the list.

Or how about a shorter school day, say ten to two. Then parents would have to find something to do with their kids for an extra two or three hours. This should cause an appropriate uproar. And let's let parents know that charging a fee for school supplies and field trips is against the law. The state is obligated to provide a "free" public education.

But none of this is going to happen. We will just continue on being the state that has one of the lowest rates of pupil funding in the country. We were at number 48 and we may now be at 50, dead last. In two years there will be more saber rattling in the legislature but no real changes.

The school districts have a responsibility to push for adequate funding. They should be taking steps to involve the public and motivate parents to act. They need to tell us the truth and not placate us with platitudes that "everything will be ok". It hasn't been ok for a long time and it is getting much worse. The Board of Trustees needs to show some backbone and do what it takes to get results or the crisis will just continue.

SUSPENSION ABUSE IN OUR SCHOOLS

The Washoe County School District has adopted policies and regulations to deal with student discipline issues. One area covered by such procedures is student suspensions. WCSD regulation PATH-106 section 5.1 states:

The primary purpose of a suspension is to give the student, his/her parent(s) and/or guardian(s), and the school time to resolve a problem. The duration of a suspension is related to a course of action designed to resolve the problem. The student shall be readmitted as soon as the school has reasonable assurance that the problem has been resolved or significantly improved.

This is a really well worded regulation, and if the District follows it, students would benefit from it. But frequently the District doesn't take action in accord with its own directives. Suspensions are repeatedly used as punishment and to simply remove a disagreeable student. A minor altercation in the hallway can result in a multiday suspension. Smoking on campus can get you kicked out of school also for several days. Cutting class also gets you removed from school. None of this is in accord with the District's regulation.

There are also several zero tolerance regulations that result in long term suspensions or expulsions. Serious offenses need to be dealt with appropriately but zero tolerance is directly contrary to the regulation stated above. For example, bringing a weapon to school is an automatic expulsion for the rest of the school year or longer. At first glance this sounds reasonable but it is not always so simple. Obviously if a student brings a weapon with the intent of using it on another student they need to be removed. But what if a student forgets that he put his hunting knife in his backpack for use with his father on the weekend, and goes off to school on Monday forgetting to take it out. Does he deserve to be treated the same as a student who brings a knife to school to cause harm to a student he doesn't like? I think not. Zero tolerance rules don't allow for any common sense.

But even for minor infractions, suspensions are being used simply to get rid of the perceived problem child. They are not being used as required by the Districts own regulation. Children with problems don't need to be kept out of school for days but need more time in school.

For a while the District had Saturday school for problem kids. What better incentive to get a student to behave during the school week than to be faced with losing their Saturday and having to go to school. Also staying after school is a great tool for encouraging proper behavior in students. But both Saturday school and staying late have a cost in personnel and with budget cuts these options tend to disappear.

There is a certain percentage of students who love school and don't want to miss it and a suspension is a terrible punishment. But there is also a sizeable number of students who look at a suspension as getting a free holiday. In our current society both parents most likely work so when a student misses school for a suspension he is unsupervised for that day. A perfect opportunity to get into more trouble.

The best approach is what is set forth in the District's own regulation. But the District has a history of getting everything right on paper, and frequently failing to implement it. The end result is an abuse and over use of multiday suspensions that only harm our children.

THE ORIGINS OF PUBLIC EDUCATION

Thomas Jefferson stated that in order for the Union to survive we needed to have an educated electorate. He was not just referring to the wealthy but to the working class as well. But public education in America started well before Jefferson. Predating the founding of the United States the American Colonies wanted to overcome the English class educational system.

In 1642 Massachusetts enacted a statute that required all parents to educate their children and in 1647 they passed a statute requiring certain towns to appoint a teacher and permitted taxes for education. But the concept of public education did not originate with the Colonies.

Actually, the emphasis on learning in the Colonies and in England was minimal compared with the rest of Europe. Elementary education was compulsory for both sexes in the duchy of Wurttemberg in 1565, in the Dutch Republic in 1618 and in the duchy of Weimar in 1619. Frederick I of Prussia decreed universal public education requiring every parish to maintain a school in 1722. Then, by 1750 under Frederick II, Prussia led all of Europe in primary and secondary education. England did not have any provision for government education until two centuries later in 1870. However, Scotland provided for universal education in 1696 and so did France in 1698.

Prior to the eighteenth century education was primarily looked at as a private benefit and not a societal one. With the Colonies seeking independence, the concept of free schools was seen as a primary means by which freedom could be obtained and maintained.

During the 1760's the idea developed in the Colonies that there should be a free system of public education. John Adams stated that nothing is more effective in countering political oppression then the general diffusion of knowledge. Thomas Jefferson stated: "a people who mean to be their own governors must arm themselves with the power which knowledge gives." But a clearly defined role of the state in education did not emerge until George Washington gave his farewell address in 1796 promoting the need for educating the public.

Over the next 30 years there were many battles over how to fund public schools. By 1825 it was generally recognized that a state system of education would require direct taxation such as from real property.

A major impetus for education had previously come from the church. Early states supported the religious schools until this new concept of government sponsored education caught hold. The struggle over state funding of religious schools and public schools started in several states at the time we became a country and has continued to this day.

In 1852 the first compulsory attendances law was passed in the United States. This occurred in Massachusetts. Now all states have some form of mandatory free public education. This concept of mandatory public education has now been defined by the courts as "not merely a function of government; it is of government." Public schools now exist not only to confer benefits on the individual but also to advance civil society for which they are necessary and indeed essential. They are still just as essential today as they were two hundred years ago.

THE SCHOOL TO PRISON PIPELINE

The phrase "school to prison pipeline" refers to the growing trend of public schools subjecting their students to the criminal process rather than dealing with student behavior issues at school. By subjecting students at an early age to arrests and criminal proceedings it make them much more susceptible to being arrested and incarcerated when they complete public school or if they drop out. It makes them think this is "normal".

Our public schools need to stop treating our children like criminals and focus on teaching them what they need to learn in order to be well adjusted contributing members of our community. I know a large part of the population is in the punishment mode. If children do violent acts they need to be punished and not coddled. This approach ignores the real issue: we need to teach our children proper behavior and responses to difficult situations. If we don't teach them how to cope and just punish them, they will not learn how to avoid those same problems in the future. Many people believe that a negative consequence will deter bad conduct but that has proven not to be true. Studies on increased criminal penalties show there is no correlation between a penalty and the frequency of a crime. People, especially children, don't stop and think of what the consequences might be in the heat of the moment.

Here are some examples from northern Nevada schools and how the criminal process is being abused and imposed on our children:

  1. An 8 year old boy is asked by a teacher to walk a 5 year old girl to the school bus at the end of the school day. He gets to the bus and sees the girls brother and jokingly says you owe me a quarter for taking her to the bus The next day the 8 year old is interrogated by school police, the principal and the girl's parents for alleged abuse to the girl. He is crying and asking for his mother when the officer says "Shut up, you are going to jail." The 8 year old is handcuffed and taken to juvenile jail. He is charged with battery and extortion. The next day the principal talks to the teachers and learns that they asked him to escort the girl and they saw him in the hall and there was no abuse. All charges are dropped. (The boy was Hispanic and the girl was white.)
  2. A 9 year old boy goes to the restroom during class and when he gets there, there are two other boys in the bathroom using cell phones which is prohibited. The boys ask the 9 year old not to tell on them so he jokingly says give me a dollar and I won't tell, and they do. The next day the 9 year old is called into the office with the principal and a police officer . He is arrested for extortion and taken to juvenile jail. (The 9 year old is Hispanic and the other boys are white). Charges are later dropped.
  3. A high school student is going on a three day field trip and grabs his pillow and goes to the bus. He forgets that he hid a large pocket knife from his younger brother in the pillow case. The knife falls out when gear is being loaded and the student says "Hey that's my knife". He is arrested after the trip and then expelled for a semester for bringing a weapon to school. There is no criminal prosecution.
  4. A black female high school student is walking to her locker and attacked by three Hispanic girls. Three other black girls join the affray. The police arrive and arrest not only the girls in the fight but the black girl's brother who was watching the fight from a distance. The police considered him to be a known trouble maker. He is pulled out of a car, handcuffed and thrown around on the ground and against a wall. He is charged with fighting and resisting arrest. He goes to trial and is acquitted on all charges.

We need our schools to talk to our children and educate them. All of the above scenarios could have been resolved just by talking with all the students involved and their parents. They could have told the children what was and wasn't appropriate. Instead, the school invoked the criminal justice system to do what they should have done. Many times the juvenile probation officers do what the school should have done. They call in the parents and the child, discuss the problem and have the child write an essay. Why do we need them involved at all.

Our current school practices will continue to support the school to prison pipeline, all to the extreme detriment of our children. This is one pipeline that should never have been built.

WHAT TO DO IF YOU LOSE YOUR JOB

Our current economic depression has resulted in numerous layoffs and terminations. With the majority of employees being "at will" what can you do if you are fired?

If you are an "at will" employee it means that you have no employment contract and you can be terminated with or without cause at any time without any prior notice. If you have worked at your jog for 20 years or six months you don't have any job security.

An employment contract will have a fixed term usually for one year. At the end of the year the contract can be renewed or you are out of a job. If you are a member of a union you won't have a fixed term contract but provisions that you can only be terminated for "just cause". This means your boss needs a good reason to fire you and without one you can file a grievance and get your job back. Typical jobs that have unions are public employees and skilled workers such as carpenters, electricians, truck drivers and others.

If you don't have any of those protections there are some federal laws that also apply to all employees. You can't be terminated based upon your age, gender, religion, race or sexual orientation. You also can't be terminated for complaining about sexual harassment.

Many people are mistaken in believing that if they are harassed at work the federal law protects them. This isn't quite true. The federal law only prohibits sexual harassment or discriminatory harassment. If your boss is just a jerk and constantly picks on you, your only recourse is to find another job.

If you think your employer has violated the federal protections you must file a complaint with the Nevada Equal Rights Commission or the Equal Employment Opportunity Commission. You must file your complaint within 300 days of the last infraction.

But these federal protections only apply to employers with 15 or more employees. If you work for a smaller company you are basically out of luck on the discrimination claims.

One thing anyone can do if they are terminated is file for unemployment. Even if you are terminated for cause you still may qualify because the state standard is not just misconduct but gross misconduct. If you are denied after filing your application you can appeal and get a hearing in front of a hearing officer. She acts like a judge and hears evidence and reviews documents.

But one of the most important things you need to do if fired is to start a new job search. You will need a good resume and should rely on all your contacts for any leads. Also, try and get a letter of reference from someone from your last job. Even if your current boss fired you, a previous boss might sing you praises.

Getting fired unexpectedly is no fun. You should take your current situation and treat it as a new opportunity to explore all aspects of your career or a career change. If you can get a similar job with another company, great. But don't get stuck in trying to duplicate your last job. Look at the big picture and all your options.

CHILDREN AND THE POLICE

We send our children to school to learn a variety of topics such as math, history and science. But no where in the school system is there any course on how to respond or interact with the police. Most of what kids learn about police interaction comes from television which is not an entirely reliable source. We should teach our children their rights and responsibilities when interacting with police.

I am really referring to police contact when the parents aren't present. There are a few basic rules that all children should know if they are stopped by the police.

If the police stop your child they should be respectful to the officer and mindful of their body language. They should keep their hands where the police can see them. They should not run or attempt to touch the police officer. They should not physically resist even if they are innocent. Don't get into an argument or call the police names or make any threats. Anything your child says can be used against them.

It is not a crime to refuse to answer questions aside from telling the police your name. They may pat your child down to look for concealed weapons but your child should not consent to any further search of themselves, car or home. They should ask if they are under arrest and why.

At any time your child may ask for their parent to be present before they answer any questions. A child asking for a parent is the same as asking for a lawyer. The questioning should stop. If your child is taken to the juvenile justice center they should not make any statements or talk about the incident with anyone even other kids. They should ask for their parent or a lawyer. They may be tempted to make excuses or give explanations but they should just remain silent.

Even if your child is not a suspect or being put under arrest they should always request that their parent be present. If your child is just a witness to a criminal event, the perpetrators may try to retaliate against them. As a parent you want to know if this is a possibility and what will be done about it.

Many times children are stopped by police while at school. This is done because of time factors or to avoid parental interference. The school should notify you that your child is being questioned, but they cannot stop the questioning. But your child should refuse to answer any questions until you arrive.

If the police come to your home and only your children are there to answer the door they should not allow the police inside the house unless they have a warrant. If there is an emergency the police may come in anyway.

We all recognize the need for effective law enforcement but we should also understand our rights and responsibilities. You have the right to be treated respectfully by the police and you should be respectful to them. As a parent you have the right to be with your children when they are questioned. If you feel your rights have been violated don't try to deal with it at the scene. You can talk to a lawyer afterwards or file a complaint with the police department.

I have had clients whose children have been questioned and then arrested by the police while at school and the parents didn't know until school was over. This even happened to a first grader. Don't just assume that your kids will know what to do.


Jeffrey S. Blanck

Attorney At Law


485 West 5th Street
Reno, Nevada 89503
Phone: 775-324-6640
Fax: 775-323-5944

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