Gabel Law Firm, P.C.

06/04/2019

Democrats in Congress are pushing legislation to end forced arbitration in employment. Many companies, in response to pressure from their own workforces, have already ended forced arbitration. Surprisingly, some pro-business Republicans are receptive to the idea.

I'm hopeful that these hearings will be productive. The Federal Arbitration Act was never intended to cover employment disputes in the first place. A chain of SCOTUS decisions ruling that it DOES cover employment were wrongly decided. Democrats' have proposed various bills to amend the Act to correct the Court's incorrect interpretations of the statute.

A wonky legal issue is gaining (some) bipartisan support.

01/16/2019

In a tight labor market, employees putting social media pressure on employers to end practices like forced employment arbitration could be a powerful tool.

Employers who want to be seen as great places to work may decide to stop practices like forced arbitration so that they appear–and actually are–more open and welcoming.

social media campaign by Google employees may put pressure on employers, including Google, to end forced arbitration in employment.

10/04/2018

This is a critical point, not just about sexual assault claims, but about sexual harassment claims, and claims of wrongful conduct generally: corroboration is NOT required to prove the allegations.

In any one person says/another person says in which there is an allegation of wrongful conduct, a denial, and no external evidence about who is telling the truth, we don't simply conclude that the accused is innocent.

We CAN'T do that: if we did, anyone would be able to get away with anything just by ensuring that their wrongdoing wasn't recorded and that there were no eyewitnesses.

That's not how things work in a court of law, and it isn't how things should work in a workplace investigation (or a Senate confirmation hearing) either.

When there's no corroborating evidence, an investigator, or a judge or a jury (or a Senator) is entitled to, and in fact is duty-bound to, make a conclusion based on ALL of the evidence about who is more likely to be telling the truth, and then to act on that conclusion, by finding liability or no liability, making an employment decision, or making a decision about whether someone should be confirmed to high office.

The lack of other witnesses cannot, and must not, be used to draw the conclusion that the accused did nothing wrong, or there can be no justice in these situations.

We should never summarily declare a r**e victim’s testimony to be “no proof” because it lacks “corroboration.”

10/02/2018

One of the key elements of California's new sexual harassment bills that applies to and founders: it will now be specifically illegal in many cases for investors and venture capitalists to harass founders and owners of businesses they're funding.

SACRAMENTO – As the movement continues to expose the pervasive sexual harassment and assault that millions of women and men have endured, Governor Jerry Brown signed two bills by Senator Hannah-Beth Jackson (D-Santa Barbara) today to combat sexual harassment in the workplace by ending the l...

10/02/2018

This article busts some common myths about paid family leave.

Paid family leave can be a win-win for workers and employers.

09/21/2018

Everyone should read these explanations, now trending on Twitter, from women about why they didn't immediately report harassment and sexual assault they suffered.

This is also why management-side employment lawyers shouldn't use the "why didn't they report it earlier" defense in harassment and discrimination cases. It's an insult to the victim. There are many, many good reasons, including embarrassment, power imbalances, and fear of retaliation.

Hopefully, that these brave women are speaking out now will help to discourage lawyers from using that defense in the future.

09/18/2018

Many Republicans like to say that the government should be run like a business. But if Supreme Court nominations were run like a business, Brett Kavanaugh would be out of the running by now.

Suppose Kavanaugh, instead of being nominated to the Supreme Court, was applying to be a senior executive in a publicly-traded company. Applying for a position as, oh I don't know, one of the top nine executives in the company (just theoretically).

And suppose that, after a few rounds of interviews, things are looking good for him: he's smart and knows their business; he has stellar, blue-chip credentials and good recommendations; he seems to get along well with everyone; and so on.

And suppose further that, right at that point, a woman credibly alleges that he sexually assaulted her 30-plus years ago. What do you think would happen?

I'll tell you what would happen, in this environment: he would NOT get that job. Hell no. Not in ten million years. That company would not want the bad PR. That company would not assume the risk that he might abuse women again--even if it wasn't totally sure he ever had. The company would absolutely question his character.

I'll also tell you what would NOT happen: senior executives and board members would not come forward and call what he was alleged of doing youthful indiscretion. They would not try to explain it away as saying that it wasn't relevant to his character or job now. No one at the company would go into attack mode against his accuser--questioning her motives and asking why she hadn't come forward earlier--just to get the benefit of his impeccable credentials at running...whatever (maybe sales and business development).

It just wouldn't be worth it. As good as they might think he was, there would be other options out there that didn't carry the same risks.

A committee vote on Kavanaugh’s confirmation has been delayed after an accusation of sexual assault.

08/14/2018

Controversial FBI agent Peter Strzok, who has been at the center of the raging political debate over Robert Mueller’s election interference investigation, was fired last Friday. Based on the circumstances of his firing, Strzok could have a valid legal claim for wrongful termination on the basis that the Justice Department and FBI fired him in retaliation for his exercise of his First Amendment rights.

Controversial FBI agent Peter Strzok could have a valid legal claim for wrongful termination for exercising his First Amendment rights--if he pursued it.

07/10/2018

This devastating New York Times article shows how pregnancy discrimination frequently sidetracks or derails women’s career advancement. The effect spans a variety of different kinds of jobs, from manual labor to executive and professional positions. Employers often shunt pregnant women who are perfectly capable of working into less desirable or less well-paying positions or assignments during their pregnancies. And the discrimination often continues when they return to work after maternity leave. New mothers may find that their status in the organization has worsened. Their managers may give them less desirable work assignments. Their co-workers and bosses may assume that they’re no longer focused on their work, which can lead them to be passed up for promotions.

All of these factors lead to the “motherhood penalty,” the loss in wages and status that women experience at work when they have kids. Research shows that on average, a woman’s income goes down by 4% per child she has, and mothers’ income is usually 5-10% lower than it would be if the same women weren’t mothers. (Men’s income, on the other hand, actually goes up when they have kids, by about 6%, which researchers call the “daddy bonus.”)

Even though it’s common, many victims of pregnancy discrimination don’t speak up. Instead, they either put up with it, or just look for another job after their child is born, hoping to start fresh with a new employer whom they hope will be more receptive to mothers of small children. (Sometimes that works, and sometimes not.) They may think that there’s nothing that they can do, or that a world with this problem is one they just have to live with. But it doesn’t have to be. We haven’t seen too many headline pregnancy discrimination lawsuits or -like shaming of the worst offenders yet. But ultimately, that may be what it takes to get employers to take this issue more seriously.

Many pregnant women have been systematically sidelined in the workplace. They’re passed over for promotions and raises. They’re fired when they complain.