Offer & Acceptance: An offer is an indication by one person (“offeror”) to another (“offeree”) of the offeror’s willingness to contract on certain terms without further negotiations. A contract is then formed if there is express or implied agreement. A contract is said to come into existence when acceptance of an offer has been communicated to the offeror by the offeree.
In the United States, a firm offer allows merchants to make offers to buy or sell irrevocable for up to three months provided that the offer be put down in writing or otherwise authenticated. Such offers are defined by UCC § 2-205 of the Uniform Commercial Code of the United States.
A firm offer in effect creates an option contract without requiring any consideration from the prospective buyer. Because the firm offer holds the seller to a higher standard than the potential buyer, it reflects a change from traditional common law, which treated all parties to a contract the same way, to a more modern view that holds certain parties to a higher standard of behavior.
Capacity?
The capacity of both natural and artificial persons determines whether they may make binding amendments to their rights, duties and obligations, such as getting married or merging, entering into contracts, making gifts, or writing a valid will.
Consideration?
It is a central concept in the common law of contracts and contract theory: it is value paid for a promise. Consideration is needed for a valid contract. An example; if you sign a contract with a man, agreeing to buy his car for an amount of money, his consideration is the car, which he promises to give to you. Your consideration is the money that you pay for the car. However, a contract saying that he would give you his car for nothing would not be valid, because you aren’t giving him any consideration
This post will identify common attributes of good employee rights cases. (Please note this post cannot answer whether it is advisable for you to bring a legal claim for your situation: if you are seeking advice about whether to pursue a legal claim, you should talk to an experienced employment law attorney about your specific circumstances).
Generally speaking, an employee rights case is more promising, and more worthwhile to pursue, when several or all of the following factors are present:
The employee is within the legal deadline (statute of limitations).
If an employee is beyond her legal deadline, then her case obviously can’t be pursued no matter how good it is. For example, an mployee in Nevada has 300 days or less from an employer’s discriminatory action (e.g. date of discharge, suspension, harassment, etc.) to file a discrimination complaint. If the employee is beyond the 300th day after the adverse action she wants to contest, then the right to pursue that claim is forever lost.
As another example, several wage claims (e.g. an unpaid overtime claim) have two-year statutes of limitations. Say an employee wished to pursue overtime wages that he was not paid between January 1, 2005 and June 1, 2006. If the employee filed a legal complaint for unpaid overtime on May 16, 2008, the employee, because of the two-year statute of limitations, could only pursue wages for the short period between May 16, 2006 and June 1, 2006. With each day that passed, the value of the employee’s wage claim– no matter how strong the proof– would be increasingly diminished.
Also of note, some types of legal claims have very short statutes of limitations (e.g. OSHA retaliation claim at 30 days, Sarbanes Oxley whistleblower claim at 90 days).
Because of all this, it is important for an employee to evaluate legal claims and deadlines promptly. Employees who have evaluated their legal claims early can make their legal claims and strategies stronger, and avoid the diminishment of claims and rights.
The employee has lost (or will lose) a significant amount of wages, income, or other tangible monies.
The legal system is effective at some things (e.g. repaying financial losses) and not effective at others (e.g. “proving a point to the employer”). Employees who have lost tens of thousands of dollars- for example, employees who were not paid wages owed to them for several months or years, or employees who were unlawfully discharged and out of work/income for several months or years- have tens of thousands of dollars “on the table,” so to speak. If such an employee wins a legal claim, she will have a significant amount of tangible monies that the legal system can recognize and award to her.
However, all too often an employee will not have significant financial losses or potential damages, yet will rush ahead and file a legal claim.
Again, if an employee has lost significant monies because of the employer’s actions, he or she has more on the table that can be won in a legal proceeding. And this of course assumes that the employee has proof of legal violations that makes winning a possibility.
The employee has strong evidence, i.e. documentation, witness statements and/or recordings that proves the employer’s unlawful conduct (e.g. discrimination, retaliation for wage complaint). Obviously, the more proof an employee has of the employer’s wrongdoing, the better the odds the employee will win a legal claim or reach a favorable settlement.
Good proof usually comes in the following forms:
- Documentation (e.g. the employee has copies of emails from her supervisor admitted her wages are underpaid, or making negative comments about her disability);
- Witness Support (e.g. a coworker who witnessed the employee’s termination meeting is willing to testify that the employer terminated the employer on a discriminatory basis, or in retaliation for the employee’s whistleblowing);
- Recordings (e.g. employee has tape-recording of HR manager threatening to fire the employee over his medical restrictions or wage complaint); and
- Suspect timing or other strong circumstantial evidence (e.g. the employee was fired one week after returning from short term disability leave).
- Talk to your fellow employees and ask question if they suffered and had the same kind of treatment fromt the employer.
- Document everything, keep a copy of all the correspondence and even secure your email.
- Keep copies of your paystubs in regular file
- Keep record of your time cards and time sheets
- Kee a copy of the handbook if your employer provides one. Make sure you get the latest handbook from your human resources.
-Keep an eye on all the posters required by Laws for instance your employer has posted an FMLA or WAGE and Hourly Poster outside HR offices, lunch room, or other prominent places.
The better quality of proof the employee has, the stronger the potential legal claim. It is not enough for an employee to be right: the employee must prove she is right and prove the employer violated employment law.
The employee has proof of fraud or blatant falsifications by the employer (e.g. the employer gives documents to the government stating an employee will be paid $15.00 per hour, and the employee has payroll stubs confirming the employer only paid him $8.00 per hour). Some employers falsify documents to the government, or commit blatant fraud in which they pay workers at wages that are less than what the employers report to the government. This can occur with immigrant workers, such as H-1B professionals.
If an employee has copies of documentation that proves an employer committed fraud (e.g. copies of documents the employer gave the government, and copies of payroll stubs showing the employer failed to pay the wage rates stated to the government), an employee may have very strong legal claims in this situation.
The employer has the financial resources to pay the legal award or settlement. It is important the employer can pay for its liabilities if the employee wins a legal claim. In most situations, this is not a concern. Most employers have the financial resources necessary to pay the legal award an employee seeks. Most employee litigants are not seeking dollar amounts that would (if awarded) be so large as to put the employer out of business.
Summary
Generally speaking, the more factors above that are present in an employee’s legal matter, the better the “case” the employee may have. Again, it must be emphasized that these are not rigid rules, and that every situation is different. Employees can benefit by keeping the factors above in mind, and considering where their potential claims may fall on the spectrum of good and bad. Finally, the factors may help employees identify some areas in which further research, or legal advice, may assist with decisions.
DISCLAIMER: The information in this blog is NOT legal advice, nor does it establish an attorney-client relationship between you and Attorney Malik W. Ahmad.
