4 Important Things About An Expatriate Work Permit In Indonesia

What You Need To Know About The Expatriate Working Permit In Indonesia?

Article 1 (13) of Law No. 13 of 2003 on Manpower (“Manpower Law”) defines Foreign Workers (“Expatriates”) as visa holders of foreign citizenship who come to Indonesia with the intention to work within Indonesia’s territory. Expatriates are foreign workers who live outside their native country and settle abroad, e.g. in Indonesia. Employers looking to hire Expatriates to work with them in Indonesia must ensure that the Expatriates have acquired a complete set of Expatriate Work Permit as stipulated by the Ministry of Manpower in Indonesia.

In this article, we will elaborate on 4 (four) important things that all Employers hiring and/or in the process of hiring Expatriates must know and understand:

1. Who can be a Sponsor for a Work Visa?

Only the following entities are allowed to be a sponsor for the Expatriates in Indonesia:

• Government Institutions, International Bodies, Foreign State’s Representatives;
• Representative Offices of foreign chambers, foreign companies, or foreign news;
• Foreign Direct Investment Companies (Penanaman Modal Asing or PMA);
• Legal entities which are established based on Indonesia’s laws or foreign business entities which are registered in authorized institution in Indonesia (ie. Foreign Representative Office);
• Social, religious, educational, and cultural Institutions; and
• Entertainment organizer (impresariat) business services.

Entities in the form of civil association, firm, limited partnership, business partnerships, and individual persons are prohibited to employ and/or act as the sponsor for Expatriates unless stipulated otherwise by the Laws and Regulations.

DKP-TKA Payment Obligation for Employers / Sponsors

Employers or sponsors are required to pay Expertise and Skill Development Fund (“DKP-TKA”) in the amount of USD 100/month (USD 1200/year) for each Expatriate hired to work in Indonesia. DKP-TKA are paid in full at the beginning of the Working Permit application procedure in Indonesia Rupiah (IDR), for the employment period that has been approved by the Minister of Manpower.

The following employers or sponsors are not required to pay DKP-TKA:

• Government Agencies/Institutions;
• International Agencies (e.g. WHO, ILO, UNICEF, etc.);
• Representatives of Foreign Countries;
• Social Institutions; and
• Religious Institutions.

2. Prohibited Positions for Expatriates

The following are the reasons why Expatriates work in Indonesia:

• As the Owner of sponsor company (Investor/Shareholders) and/or to act as a member of the Board of Executives in the company (ie.: President Director/ Director);
• As Experts on certain skills, for the transfer of knowledge to Indonesians.

Please be informed that Indonesia Law regulates the Expatriates are not allowed to hold certain positions in Indonesia. These prohibited positions are mostly in the field of Human Resources Development (HRD), such as Personnel Director, Human Resources Manager, and HRD-related Supervisors. The full list of prohibited positions for expatriates is stipulated in the Minister of Manpower Decree No. 40 of 2012 (“Manpower Decree No. 40/2012”).

Other than the prohibited positions listed on Manpower Decree No. 40/2012, there are other positions prohibited for Expatriates who work in certain fields, such as in the Oil and Gas Industry.

Prohibition for Expatriates to hold Multiple Positions

According to article 41 of Minister of Manpower Decree No. 16 of 2015 (“Manpower Decree No. 16/2015”) Employers are not allowed to double post Expatriates in multiple positions, such as:

• Employ Expatriates for dual positions, whether both positions are within the same company, or in different companies;
• Employ Expatriates who are currently employed by other Employers.

Exempted from the double posting prohibtion are Expatriates who work as members of the Board of Directors, or the Board of Commisisoners.

3. The Procedures to Obtain the Work Permits

Every employer that employs Expatriates is under an obligation to obtain written permission from the Ministry of Manpower (“Work Permits”). The following are the Procedures to obtain the Work Permits in Indonesia:

Permits to be held by the Sponsor Company:

• Foreign Workers Recruitment Plan (Rencana Penggunaan Tenaga Kerja Asing or “RPTKA”);
• Telex Vitas;
• Foreign Worker Recruitment Permit (Izin Memperkerjakan Tenaga Kerja Asing or “IMTA”);

Permits to be held by the hired Expatriate:

• Limited Stay Visa (Kartu Izin Tinggal Terbatas or “KITAS”);
• Multiple Exit / Re-Entry Permit (“MERP”);
• Registration Letter (Surat Tanda Melapor or “STM”);
• Temporary Stay Registration Letter (Surat Keterangan Pendaftaran Penduduk Sementara or “SKKPM”);
• Arrivals Permit Card (Kartu Ijin Pendatang or “KIJ”); and
• Arrival Reporting Evidence Letter (Lapor Kedatangan or “LK”).

Data required from the sponsor company at the beginning of the procedure consists of the planned: (1) name of sponsor company; (2) business domicile of the company; (3) name of head of the company; (4) job of Expatriates; (5) job description of Expatriates; (6) number of Expatriates hired; (7) work location of hired Expatriates; (8) period of Expatriates employment; (9) wage of Expatriates; (10) start of employment; (11) number of Indonesian workers hired in the sponsor company; (12) the appointment of Indonesian workers as Expatriates companion; and (13) training program for the Indonesian workers.

Is At-Will Employment A Myth?

California law provides for at-will employment unless there is an agreement to the contrary. As a result, an employer may believe it is free to terminate an employee at any time and for any reason or no reason.

The reality is far more complicated. A variety of limitations and exceptions to at-will employment have built up over time. An employer who decides to fire a worker should not have a false sense of security that the at-will doctrine will protect it against a wrongful termination lawsuit.

Implied Agreement

At-will employment can be negated by an implied agreement to not discharge an employee without good cause. Written or verbal representations by the employer of continued employment, other statements by the employer that create an expectation of job security, or the establishment of a progressive disciplinary policy can create such an implied agreement.

Discrimination

An employer may not dismiss an employee because of his or her race, gender, age, religion, ethnicity, national origin, disability, or sexual orientation. Because the protected characteristics are so numerous, one or more of them are likely to apply to most employees. Thus, an employee frequently will be in a position to at least claim that a termination is based on illegal discrimination.

Public Policy

An employer may not dismiss an employee in violation of a fundamental and substantial public policy. Such cases generally involve terminations based on an employee:

  • Refusing to break the law at the request of the employer;
  • Performing a legal obligation;
  • Exercising a constitutional or statutory right or privilege (e.g., seeking a reasonable accommodation for a disability; taking lawful medical, pregnancy, or family leave; filing a workers’ compensation claim); or
  • Complaining about or reporting a legal violation (e.g., employment discrimination, sexual or racial harassment, wage or overtime violations, workplace safety violations).

Burden of Proof

The at-will doctrine is further undermined by how the burden of proof is allocated in wrongful termination lawsuits. The employee has the initial burden of establishing that (1) he or she is in a class protected by the “discrimination” or “public policy” principles discussed above, and (2) there is some causal connection between his or her protected status and the employment termination (e.g., the termination occurred shortly after the employee filed a workers’ compensation claim or complained about employment law violations). If the employee satisfies that burden, then the burden shifts to the employer to put forward a legitimate nondiscriminatory reason for the termination.

How to Preserve At-Will Employment

California has at-will employment, meaning that either the employer or the employee can terminate the employment relationship at any time, with or without cause, reasons, or notice.

But the at-will presumption can be negated by express or implied agreements to the contrary. In addition, an employer may not dismiss an employee for discriminatory or retaliatory reasons. As a result of these exceptions, employers often find themselves subject to claims by terminated employees.

An employer can adopt various strategies to maintain at-will treatment and protect itself against wrongful termination lawsuits. Following are some key do’s and don’ts:

DO Include Repeated At-Will Statements

Job applications, offer letters, employee manuals, performance evaluations, and other employment-related materials all should clearly and prominently state the at-will policy. The policy should be restated next to any provisions that might be interpreted as conflicting with an at-will arrangement. For example, any list of reasons in an employee manual as to why an employee may be discharged should be accompanied by a disclaimer that the list is not exclusive and that the employment always remains at-will. It is hard to repeat the at-will policy too many times.

DON’T Give Assurances of Job Security

An employer should train its managers to not unwittingly make verbal statements to employees that might be interpreted as contradicting at-will employment, such as:

“If you continue to do fine work like this, you can look forward to a long and successful association with the Company,” or

“As long as you do a good job, you will always have a home here.”

DON’T Have Probationary Periods or Permanent Employees

Use of a “probationary” period for new employees arguably creates an inference that an employee can only be terminated for good cause once he or she has satisfactorily completed the period. An initial phase of employment instead should be referred to as an “introductory,” “orientation,” or “training” period. In addition, employees who complete the introductory period should be referred to as “regular” rather than “permanent” employees.”

DON’T Have a Progressive Discipline Program

A progressive discipline policy arguably creates an implied contract between the employer and the employee, requiring the employer to follow all the steps in the policy before discharging an employee. The practical result is that the employee can no longer be summarily terminated, as would otherwise be permissible with at-will employment.

DO Be Mindful of Anti-Discrimination Laws

An employer should take special care before discharging someone who is a member of a protected class (e.g., based on race, age, ethnicity, or disability), or whose termination might be viewed as in retaliation for a protected act (e.g., whistle-blowing). In such cases, an employer must be prepared to establish good cause for the termination, notwithstanding the general presumption of at-will status.

Conclusion

There are many traps for the unwary in attempting to maintain an at-will employment policy. Accordingly, an employer should have a competent professional periodically review its employment documents and practices. And because of the risk of wrongful termination claims, an employer should consult with legal counsel before discharging employees.

Common US Employment Law Violations

There are many people in the United States that have excellent, fair employers – yet there are also those whose workers’ rights are violated each and every year in regards to underpayment, overtime and rest break violations. For this reason, it is important to know your rights and find a great employment law attorney.

There are several employment law violations that are more common that others in the US, and the first one of these is lack of overtime payment. The particular law that applies will depend on the state, but in some cases, employees can be told that they are not entitled to overtime payment when they actually are.

In all cases, workers are entitled to overtime payment if they do not meet all the of a particular overtime exemption’s requirements. Furthermore, some people may be compensated for overtime, but this sum may be far lower than the amount that they are legally entitled to. In this case, finding a good unpaid overtime lawyer is an ideal solution.

In addition to the lack of overtime payment or the miscalculation of overtime payment that disadvantages the employee, there are other common employment law violations which employees need to be vigilant of. One of these is failure of the employer to give additional pay when it is required by law.

This does not only apply in regards to overtime, but also in other situations when an employee is legally entitled to be compensated for not taking an unpaid meal period – working instead due to the employer’s demands – or not taking other legally required rest breaks. In some state law, workers are entitled to extra pay in these situations.

If you are an employee who frequently is required to skip rest breaks or unpaid meal breaks, then it is strongly recommended to seek the assistance of a unpaid overtime lawyer who will be able to provide you with guidance. This is one way of assuring that you know your rights and will be able to assert them for you and your family’s benefit.

Another common violation of employment law is that statutory employees are classified instead as “independent contractors”, which denies them a number of rights that they should be entitled to. These rights include minimum wage, overtime and a variety of other protections provided by state and federal law.

This miscalculation can be a genuine error on the part of the employer, but it can also be a calculated business move that severely disadvantages the worker. Again, seeking the advice of an employment attorney or a unpaid overtime lawyer will help clear up this issue and help each determine whether they have been misclassified as an independent contractor.

Lastly, employees may be entitled to certain rest breaks and meal times which the employer does not provide. There may also be failure to provide vacation pay, all of which result in the employee receiving far less than they deserve at the unjust benefit of the employer. Again, if the employee suspects their rights are being violated, it is advised to seek legal help.

These are just a few of the most common violations of workers’ rights in the US – from lack of overtime pay to miscalculation of employee status, these will also have a huge effect on the lives of employees and their families. This can mean less income, fewer breaks and longer hours than is legally allowed.

It is important for every worker in the country to know their rights and to seek professional help in defending them when necessary. This ensures a fairer workplace and one where employees can work safely and securely and be adequately financially compensated for their contribution to the company that they work for.

The Justice Law Group was founded on the premise that competent legal representation and justice should be had by all. They provide individualized services to each and every client that they represent. They take the time to understand your individual needs, problems and how your injuries, whether they are personal or financial, have impacted your life, your family and your well-being. Justice Law Group specializes in all types of law in San Diego and Los Angeles, including Personal Injury and Lemon Law, Business Law and Employment Law.

Personnel File Inspection

Why You May Want to Inspect Your Personnel File.

You may want to inspect your personnel file for multiple reasons. An employee wants to know that important records are included. Perhaps inaccurate information needs to be tagged, removed, or make subject to rebuttal. California has enacted Labor Code Section 1198.5 as a set of protections and procedures for personnel file inspection. This article lists the key parts of the law in simplified terms. Managers will sometimes place career damaging “poison pills” in a personnel file without giving any indication of dissatisfaction with employee performance. Your personnel file will be the basis for future decisions regarding pay, promotions, reassignments and transfer, and possibly layoff or termination. You may want to inspect your file in preparation for an upcoming meeting with management or to assess the fairness and truth of a performance evaluation.

Personnel File Checklist of Rights

    1. California employees have two personnel file rights: to request inspection and to receive a copy of records.
    1. A personnel record is a record that relates to performance and to an employee grievance. Personnel records by definition of the law do not include: (a) Records relating to the investigation of a possible criminal offense; (b) Letters of reference; (c) Ratings, reports, or records that were obtained prior to the employee’s employment or by identifiable examination committee members (f) Obtained in connection with a promotional examination.
    1. Inspection is to be at reasonable intervals and times.
    1. Inspection is to be no later than 30 calendar days from date employer receives a WRITTEN request.
    1. The employer and employee can extend the compliance date, but only by WRITTEN agreement and for no longer than 35 calendar days from the date of employer’s actual receipt of the written request for inspection.
    1. If there is a written request for copies, the employer is to provide copies of the personnel records to the employee [or his representative].
    1. The employer may charge the employee the actual costs of reproduction of the records.
    1. The employer and employee [or his representative] may agree, as in the inspection time limit, to extend the time for reproduction and delivery of records to a date not to exceed 35 days from the date the employer receives the request for copies.
    1. If the employee is currently employed, the employer is not required to make the records available during the employee’s performance of duties. [ My firms argues “performance of duties” does not mean uncompensated time. An inspection of personnel records is also for the benefit of the employer because all employers have an interest in true, accurate and complete records. Further, the employee is still controlled by the employer while conducting the inspection.]
    1. The request for records is to be writing, and may be on a form provided by the employer. The form may be verbally requested from the employee’s supervisor or other person known to the employee to be designated to receive the verbal “form” request.
    1. If the employee or his representative makes a verbal request for the written personnel file form, the employer must provide the “request form” at that time.
    1. Alternatively, if the employee or his representative elects, he or she can simply write out the employee’s request for the personnel file without the use of the employer-provided form.
    1. The employer must maintain a copy of each employee’s personnel records for a period of not less than three years after termination of employment.
    1. As to current employees, the employer must make a current employee’s personnel records available for inspection, and, if requested by the employee or his or her representative, provide a copy of the records at the place where the employee reports to work, or at another location agreeable to the employer and the requester. If the employee is required to inspect or receive a copy at a location other than the place where he or she reports to work, no loss of compensation to the employee is permitted. As to former employees, the employer must make a former employee’s personnel records available for inspection at the location where the employer stores the records, unless the parties mutually agree in writing to a different location.
    1. As to former employees, in addition to inspection, the employer must provide a copy of the records at the time and place of the inspection.
    1. Alternatively, a former employee may receive a copy by mail if he or she reimburses the employer for actual postal expenses.
    1. If the employee was fired for harassment or workplace violence, the employer can produce the file by alternative methods: a) permit the inspection at a location other than the workplace that is within a reasonable driving distance of the former employee’s residence or b) provide a copy of the personnel records by mail.
    1. An employer is required to comply with only one request per year by a former employee to inspect or receive a copy of his or her personnel records.
    1. A person who is a representative of the employee for purposes of requesting inspection or copies is a person designated in writing by the employee to “inspect or receive a copy” of those records.
    1. The employer may take reasonable steps to verify the identity of a current or former employee or his or her authorized representative.
    1. An employer may designate the person to whom a request for inspection and/or copying is made.
    1. Prior to making records available for inspection or providing of the personnel file, the employer may redact [delete or black out] the name of any nonsupervisory employee contained in the file.
    1. Records specifically excluded from the documents an employer must make available are: (a) Records relating to the investigation of a possible criminal offense; (b) Letters of reference; (c) Ratings, reports, or records that were: (A) obtained prior to the employee’s employment or (B) prepared by identifiable examination committee members or (C) obtained in connection with a promotional examination.
    1. The right to inspect a personnel file is controlled by other laws for certain categories of employees: (A) Some Public Safety Officers (B) Some government agency employees.
    1. If the employer delays or fails to produce the file, the current or former employee or the Labor Commissioner may recover a penalty of seven hundred fifty dollars ($750) from the employer.
    1. A current or former employee may also bring for a court order [injunction] to compel the employer to produce the file as required by law.
    1. If the employee obtains the order compelling production, he or she may recover costs and reasonable attorney’s fees in such an action.
    1. If a current or former employee files a lawsuit that “relates to a personnel matter,” then the rights to inspect the file are pre-empted and replaced by the subpoena procedure available through the lawsuit.
    1. An employer is not required to comply with more than 50 requests to inspect and receive a copy of personnel records filed by a representative or representatives of employees in one calendar month.
  1. If the employee is a union member, and if the collective bargaining agreement provides for a specific means to obtain employee records, then the union agreement will trump the general statutory procedures, but only if the union agreement includes provisions that relate to:
  • (a) wages, hours of work, and working conditions of employees.
  • (b) A procedure for the inspection and copying of personnel records.
  • (c) Premium wage rates for all overtime hours worked.
  • (d) A regular rate of pay of not less than 30 percent more than the state minimum wage rate.

Personnel File Inspection Action Steps

Here is a checklist of actions you can take both during after the inspection:

    1. List what’s missing. Are there documents you know should be in the file? Did you expect to see a positive performance evaluation or mid-year review, or perhaps a recognition for reaching a performance milestone?
    1. List what’s surprising. Has an important document been removed or altered? Is what you’ve been told about your performance or opportunity contradicted by what is in the file?
    1. Identify what is inaccurate or untrue.
    1. Look for hard data that you would expect to be central to your performance evaluation. For example, sales completed, projects on schedule, new customers signed. If the data is not in the file, ask that it be added. Why is this data part of a “personnel file?” This firm argues that the data directly relates to your work performance as a key measure. By the way, a “file” in the 21st century is digital and cloud based. There is no necessary storage limit or location for a file. A “personnel file” is defined by its content, not its labeling.
    1. Inspect you file regularly, just as you might get an annual checkup. You’ll find the record or summary you keep invaluable as the years go by, as documents can be changed or removed with time, especially if there is a campaign to get rid of you. Also, employers will cite a history of alleged poor performance to hide an illegal motive to layoff or fire. You can rebut those events much more easily as they occur instead of covering everything in the final days of your employment.
    1. Request to add key documents to the file. These can be missing evaluations, needed corrections, and your written rebuttal to negative evaluations. [Our firm argues that inasmuch as your rebuttal concerns the terms and conditions of employment, it is a defined “personnel record” that must be included in the file.]
    1. Take steps to address take the issues you discover after inspection. Go up the chain of command. Follow any company policy covering personnel record. Keep a record of your efforts by date, with whom you communicated, and the outcome. Later, this approach will support your case that a disciplinary action is unwarranted.
    1. Ask that positive statements about performance be included in the records. A “letter of recommendation may be excluded by statute, but our firm argues that many positive communications, often internal, are not “recommendations,” but evaluations.
    1. Time clock records and pay records are part of your personnel file, where ever they may be kept. Ask to see them if you believe your time or pay is not according to law.
    1. Ask to see any file materials not labeled as “personnel files” but kept as so-called “private” files by human resource employees or managers. Our firm argues that content and use of the record determines whether it is part of the “personnel file.”
    1. Insist on receiving copies of all your signed employment documents. These will include: a) arbitration agreements; b) trade secret and confidentiality agreements; c) completion of training documents; d) notifications and acknowledgements of receipt of handbooks or electronically stored policies; e) enrollment in insurance, dental, and vision plans; f) enrollment in long term or short term disability plans; f) participation in 401K or other retirement plan; g) any signed evaluations or warnings.
  1. Do a basic index of the documents in the file. You may later want to check what you receive as copies against your index. As you are allowed to receive copies, it follows you are also allowed to keep copies. That means you can maintain the digital or paper copies at your home or other off-site location. You should do so.

Conclusions About Personnel Files

In large companies decision makers are often well up stream from your position. They may have little direct interaction with you. They will depend largely on what they find in your personnel file to decide your economic future. Inspecting your personnel file should be viewed as you might view copies of your credit report or medical records. Keeping these records as your copies may prove very useful during your employment to address an unfair evaluation, denial of bonus or pay increase, or denial of promotion. Likewise, if you are fired for an illegal reason, the records you keep can be used to rebut the “official” reason of poor performance or misconduct. Current employees can inspect their personnel files at regular reasonable intervals, and prior employees can request their personnel file once each year. They should do so.

Proof of Employment Discrimination

Proof of General Bad Conduct is Not Enough
Employment law seeks to define how people at work relate to one another. While there are laws of economics, and yes, even some economic laws, such as securities laws and antitrust laws, generally, the work of law is not micro but macro. Employment law focuses on what society has decided is most important, the macro-issues. It leaves untouched the micro-issues of how the business is run. But when an employer crosses the line by discriminating or harassing, the right to run a business anyway you want ends.

The macro-issues of employment law are discrimination, whistleblower protection, safe working conditions, workers’ compensation, and pay protections. About everything else an employer may do is mostly up to the employer. Whether you agree politically or not, the California Labor Code defines as the staring point of employment to be the right of either party to end the employment at will. Courts have historically defined this “at will” right to be one of arbitrary prerogative to quit or to fire. But that “hands off” judicial policy is limited to the micro-issues. When it comes to discrimination, whistleblower retaliation, failure to pay wages when and as due, failure to provide safe working conditions, or other listed statutory protections, the courts say basically: “at will” rule has no application.

Proof of Motive – Tough But Possible
The “why” of the employer’s decision to terminate an employee is like a gun that is never seen in the firing, only in the smell of smoke afterwards. Like all cases where the suspect is questioned, motive becomes central. The employer always, I repeat, always, has an alibi. The employee either a) just didn’t measure up; or b) was a terrible employee; or c) was a good employee, but we had to let her go as part of a lay-off.

There are two kinds of evidence to prove an employee was unfit for the job: objective and subjective. The objective evidence is more reliable generally, for example, dismal sales. But subjective factors can be persuasive if the testimony is overwhelming and credible that no one could stand the employee. Almost as surely as the alibi, an employer will round up a herd of fearful current employees to repeat the party line: I found it very difficult to work with the Plaintiff.

Does this mean that only nice people should win lawsuits? Sometimes a difficult employee is also a pregnant woman fired because she will be needing time off for her pregnancy. Sometimes a negative employee with an attitude is an African-American fired because she is African-American. Sometimes the employee who entered the wrong data on a bid proposal is 62 year-old employee is fired because a young boss perceives him as too old for the job. The point is that human motivation is a cocktail of emotions. How does a jury separate out bad management from illegal management?

The situation is reminiscent of the 2016 presidential election. It seems, according to political pundits, that the public viewed both candidates in an unfavorable light. But what if a voter saw the two candidates with equal disfavor, but decided candidate Clinton was less qualified because a woman? There are two considerations here: a) the voter is likely unwilling to see, admit or accept his gender bias, and b) the unconscious bias actually made a difference. That is, the voter’s bias was a “substantial motivating factor” in why he cast his vote for Trump. If there were 12 Trump supporters on the jury to decide the case for gender bias, they would, if following the law, have to find in favor of Clinton.

There are no perfect employers. There are no perfect employees. A jury deciding a case of discrimination or whistleblower retaliation, or perhaps a case of defamation or harassment will find more gray hats than white or black hats.

“Substantial Motivating Factor” — A Term of Art Simplified
What then is the Plaintiff’s burden of proof in a discrimination case? You’ll be surprised to hear that a) motive is a critical element of proof and that b) smoke will suffice. No one expects to see the gun fired. They may not even see the gun. But they are entitled to smell the gunpowder on the manager’s sleeve, even as he comes up with numerous alibis.

In Employment Law, the Plaintiff’s task is to prove that the “substantial motivating factor” of the decision to fire an employee was the illegal reason. That means there may be multiple concurrent reasons. But the fuel additive placed in the manager’s tank was an illegal purpose. That mixed fuel make the termination engine run.

Follow this formula [because it is the law]:

  1. The Plaintiff is in a “protected category,” for example over 40, or disabled, or a minority’
  2. The Plaintiff was qualified for the job, and as skilled for the work as those surviving.
  3. The Plaintiff was doing a reasonably good job, surely not perfect, but good enough;
  4. There was work to be done;
  5. The Plaintiff was fired.
  6. Someone not in the same “protected category” takes over the job, replacing the Plaintiff, or being the benefactor of some or all her re-assigned duties;

According to employment law, if the Plaintiff stops here in the proof, and the Defendant has fallen asleep during the trial, the Plaintiff wins. But the Defendant doesn’t fall asleep. The Defendant has alibis, and wants you to hear them. Stated differently, the Defendant wants to put the Plaintiff to the ultimate burden of proving that discrimination was the cause of the termination.

So now the documents and witnesses are paraded before the jury to show the Plaintiff was a) a scoundrel; b) an incompetent bum; c) a nice guy with few skills or no motivation; or d) a great guy who had to be laid off anyway. Remember, no employee is perfect. There will be documents and witnesses. Know too, a lay-off is an excellent smoke screen for hiding an illegal discrimination. We all know the stories of how older workers disproportionately bear the brunt of a downsizing.

At this point the burden of proof shifts back to the employee. It goes something like this: those reasons just given by the employer for my termination are not the true reasons. Here is evidence of a) how skewed and distorted the reasons are, and b) how others not in my “protected category” did no better than I, but are still working there. In the parlance of law, this is called proof of pretext, and if it is successful, the burden shifts back to the employer to reinforce the “dirt” on the employee. So it goes, back and forth, until the jury is instructed to reach a verdict. Notice that no where in this shifting burden of proof is the Plaintiff required to present direct evidence of an illegal motive. Smoke will suffice if the employee succeeds in proving the employer’s stated reasons for termination are not credible. Think of this pretext proof like this: yes, the employer had these other reasons, but these reasons were like fuel that wouldn’t ignite a decision. The catalyst was that the Plaintiff too old.

Proof of Discrimination: Conclusions
Bias is unconscious and illegal. Give that a moment of thought. We are tagging an employer with liability for an unconscious mental or emotional process. Give this secondary conclusion still another moment of thought. We’re placing a burden of proof on the employee to show that this unconscious process motivated a decision to terminate his or her employment. But it can be done if the jury understands that the burden of proof is not absolute assurance. A jury must be instructed by the court to understand that a juror can have less than full certainty. The jury is instructed to find only that the most probable explanation for the firing was illegal bias. We know real people in real work situations don’t go about bragging about bias. We will never hear that kind of testimony in court. The best an employee can present is indirect evidence, and the burden of proof is only to show that it is more probable than not [51% likely] that illegal bias caused the termination.

Raising a Grievance: Six Steps to Raise a Grievance at Work

It is unfortunate, but events may happen during the course of your employment that you are not happy about. Some of these events will be minor and, while irritating, are not something worth making a fuss over. Others, however, may be more serious and it is important to know what to do in these situations.

In some situations, all that will be necessary will be an informal chat with your supervisor or boss. But in others more formal action may be required, such as raising a grievance.

Definition: A grievance is a concern, problem or complaint that an employee will raise with their employer.

All procedures relating to grievance situations should be:

  • Fair and transparent
  • Set down in writing, in specific and clear language.
  • Rules and procedures should be explained;

This article will explore the six steps in raising a grievance at work.

  1. Let your employer know
  2. Raise a formal grievance
  3. Your employer will investigate your grievance
  4. Grievance meeting should
  5. Employer’s decision
  6. Appeal

Each company will have its own Grievance Procedure. You can find it in the Office Manual or the Terms of Business or your contract. If you cannot locate the procedure, then you should ask your HR department, or your supervisor or the office administrator, as they should be able to guide you to it.

In light of each company having its own procedure the information below is generalized.

Step One: Letting your Employer Know

It will not be possible to resolve a situation if you do not tell your employer about it. You will need to make them aware. It is advisable to do this informally at first, as it gives you and your employer the opportunity to resolve the issue quickly.

Step Two: Raise a Formal Grievance

If step one cannot be done, or has failed for any reason then you should raise a formal grievance. This should be done without unreasonable delay and in writing. Your written grievance should set out, what has happened, how/why it has upset you, and what you feel should be done to resolve the issue.

Step Three: Investigation

Your employer then has the opportunity to investigate your grievance. A formal investigation can involve meetings with staff and witnesses and/or the accumulation of documentary evidence. Your employer must fully investigate your grievance in order to make an informed decision about the matter.

Step Four: Grievance Meeting

A meeting should then be held with you (you are allowed, by law, to be accompanied if you wish) and your employer, to discuss your grievance and the evidence and/or statements your employer has gathered. This meeting should be held promptly, without unreasonable delay.

You should use this meeting as an opportunity to explain the grievance in as much detail as possible and how you think the situation can be resolved.

Step Five: Your Employers Decision

Once the meeting has concluded your employer will take the time to decide what action can or should be taken, if any. Keep in mind it is entirely feasible that your employer may uphold your grievance but state that there is nothing which can be done to resolve the situation. This decision will be confirmed to you in writing, this letter should also contain details about appealing the decision, including the time limits you must act within.

Step Six: Appeal

If you are not happy with the decision you may have the right to Appeal.

You can only Appeal the decision if you feel certain evidence was not looked at properly or misunderstood. You cannot Appeal just because you are not happy with the decision, you must have a solid reason for thinking your employer made the wrong decision.

In conclusion, if a situation arises at work it is always best to attempt to resolve the issue informally first. But, if this is not possible or unsuccessful then you should raise a formal grievance. Your employer will then formally investigate your grievance. After the investigation is complete a meeting will be held to discuss your grievance and a decision will be made as to whether or not your grievance is upheld and what action can result from the decision. If you believe that the wrong decision was made because the evidence was not properly evaluated at you can Appeal the decision.

Understanding What a Wrongful Termination Lawyer Can Do For You

Wrongful termination is the legal term describing a situation where an employer terminates the working contract of the employee by breaching of at least one or more terms of the employment contract. Lucky enough, there is a law in place to protect against a wrongful discharge.

A wrongful termination lawyer helps you to understand the rights of an employee, provisioned under the employment law. Upon cessation of employment, get an attorney to go through your contract and assess if there has been any violations. The experienced lawyer will then conduct a thorough scrutiny of the reasons of your dismissal from employment and advise you accordingly.

Below are the some of the scenarios that require an attorney after cessation of employment.

Covenant of Good Faith: Termination of employment when there is a covenant of good faith between you and your employer brings forth cause for a wrongful termination case. The covenant of good faith exists so that an employee undertaking the duties of his/her job properly, expects to receive the agreed upon benefits of the agreement without the employer unfairly taking them away.

Discrimination: This is a typical scenario for wrongful discharge lawsuits. If your termination was because of your sex, race, religion, age, or disability, you can file a lawsuit.

Insufficient Cause / Retaliation: There are instances where the dismissal of an employee is out of exercising their employee rights. When an employer terminates the contract of an employee in retaliation for reasonable exercising on an employee’s rights, it is a case of wrongful termination. Different states have different laws, but some laws are universal such as whistleblowing, legitimately taking leave under the Family and Medical Leave Act, exercising union rights, serving in the military, and a host of other violations.

Constructive Dismissal / Hostile Work Environment: There are cases where the employer has committed conduct referred to as “repudiatory breach” that has forced an employee to resign, or the working conditions are so bad that an employee could no longer feel comfortable working there and resigns. In either situation, an employee has resigned due to hostile work environment and can seek a wrongful termination attorney.

Proving a Wrongful Termination Case: As with any lawsuit, you must be able to prove your termination was illegal. Secure an explanation from your employer preferably in writing. You will also need to acquire a copy of all the documents in your personal file at work. Your attorney can help get the copies because the law does not require your employer to give you the copies. With these, you can build a strong case.

Compensation: The compensation for wrongful termination of employment includes reinstatement, back pay, front pay, compensatory damages, punitive damages, injunctive relief, and others. An experienced wrongful termination lawyer can help to sort out the issues between employer and employee and obtain justice for employees who have been wrongfully discharged. Generally, employment lawyers will represent you on a contingency basis, meaning that unless they recover you money, they will not be paid.

Get in touch with an employment lawyer to get a clearer understanding of labor laws and the process of filing a wrongful termination case in court against an employer.

Do You Feel Your Employer Terminated You Without Cause?

A wrongful termination lawyer can help you to get these reasons noticed and taken care of. A business shouldn’t feel they have all the power to do what they want and treat people any way they want. If they go that route, they will find employees are fearful to speak up because they don’t want to get fired. Don’t let them get away with such behaviors.

May be Hard to Prove

It may be hard to prove, but the more your wrongful termination lawyer investigate, the more they can use to help with building a case. They may be able to reach out to other current and past employees of the same company. Finding a constant theme of such behavior helps to verify it in a court of law.

Most people don’t realize though, even with an at will employer, there are still limits to what they can do legally. If you were considered a whistleblower and they got rid of you, this is a huge concern as there are laws to protect you against that. Your wrongful termination lawyer is going to be able to explore them with you and explain how they apply.

Look into it

Part of why it is hard to prove has to do with the risk of you just being a disgruntled employee trying to retaliate. It doesn’t hurt for you to look into the matter and speak with a wrongful termination lawyer. Let them know the situation and they can tell you if they feel it is worth pursuing and if they can represent you.

They can also share with you the information they need you to give, the possible outcomes, the cost of hiring them, and other information. Based on what they tell you, it is your decision to move forward with the case against your previous employer or not.

Possible Outcomes

There are several possible outcomes when you work with a wrongful termination lawyer. The company may offer a settlement to help keep this all under the radar. They don’t want to go to court and they don’t want the negative publicity. You may be inclined to take that money and it is your decision.

You can also decline it and continue with the court proceedings so it goes on record what they have done to you and they are held accountable. You can still qualify for a settlement this way but it can take time to get through the courts. Sometimes, it is years before the case is completed so you need to be ready for that.

Do you really want your job back? Perhaps you loved working there and that the outcome you want. Yet it may be harder than you think to go back to the same old routine there after what you have been through. You need to carefully think about that possibility too.

There is the risk your wrongful termination lawyer won’t be able to prove enough to help you win the case. If you have worked there for a time, have good reviews, showed up as scheduled, and more then it is easier for them to show there was no just cause for you to lose that job.

We specialize in certain areas of the law including your rights if you have been wrongfully terminated, you have been injured in an accident, and so much more. The right representation can help you to get a favorable outcome. We know the law inside and out and we will fight to help you get the compensation you deserve. You can trust Justice Law Group to give your case the personalized attention it needs. We will help you to navigate through the legal system, explain your rights and your options, and be by your side every step of the way!

10 Signs to Detect If Your Employer Is an Abuser Before He Beats You

Abuse is not an old headline at all among overseas Filipino workers. Serious cases of employer’s abuse from the tale of Flor Contemplacion, to the executed Jakatia Pawa, to the most recent, Joanna Demafelis, the lady kept in a freezer, had marked ailing scars in our history and which had cast fear among aspiring OFWs.

The government has already imposed measures to protect OFWs abroad, even deployment ban to countries with ill regulations on expat workers. Abuse is everywhere, it can happen to anyone and anywhere, even to non- domestic jobs.

There will never be a perfect employer. Even those with flawless values can turn into their darkest and become abusive of their power as your superior. Foreign employers may tend to look down to their employees, especially to those countries who still values slavery in their culture or to those who look down at foreigners as merely second-class citizens.

Damage to an abusive employer doesn’t just include physical harm, this also includes psychological, emotional, and social damages. For workers abroad and aspiring OFWs, there is a way to detect if you are deployed to an employer who has a great chance to intimidate you.

Here are 10 common indicators of an abusive employer you should be cautious about before he beats you in whatever way he knows:

1. Obvious illegal abuse such as unwanted physical contact, inappropriate comments, and other treatment you know is prohibited by the law.
2. He happens to yell at you, may it be in front of others or behind closed doors, to degrade you and to undermine your confidence. He always makes you feel bad, worthless, and incapable of what you’re doing.
3. He collects your passport and visa and keeps it to somewhere out of your knowledge or access.
4. When he is too demanding with your work outputs. This is usually normal but if you think that you have done your best but still seen as not enough, he may just be being abusive.
5. When he speaks ill of people who are not present or even backstab you when you are not around.
6. When he limits you to talk with relatives or friends while even during break time. He may even collect your personal phone and he may limit you from going out. He may even forbid you from talking to anyone, that includes your co-workers, or he may tell everyone to stop socializing with you.
7. When he always checks on what you’re doing and monitors you every minute. He controls your time even your minute breaks.
8. He wants you to work on your rest day and often asks you to work overtime.
9. Invades your privacy. He may listen to your private conversations or even tamper on your personal matters.
10. Workplace stress is a reliable indicator too of how abuse affects your wellness.

If the abuse is still manageable, a finding published at the Journal of Applied Psychology had shown that acts of kindness towards them could lessen the chance of him becoming hard or rude to you. Showing them doses of compassion and empathy may diminish the risk of them hurting you.

However, if your employer went beyond the limits, one should be forward and precautious to whatever things may happen.

OFWs are advised to document incidences of abuse. Have every encounter recorded on your phone or if to no avail, in a notebook, with details on when and where it happens. You can back this up with a list of witnesses’ names if there’s any.

Have it reported to the nearest office of the embassy or any government-related affiliates. Have your family know your current situation and notify it to your respective recruitment agency. Keep important contact details on hand in case of emergency.

If the abuse could already be qualified as a criminal offense such as sexual harassment or discrimination, you can already seek legal help from the government to assist you in filing corresponding charges.

Quitting the job may be the hardest resort, considering the journey you’ve had to reach that opportunity overseas. However, abuse is something that you should never tolerate. You should never risk your health and safety to a job that just pays you well.