Employment Legal Questions

This is an evolving area of the law with the rules favoring the employer. Are you paid for the hours you work over 40 hours at your regular rate ? How are the other pharmacists paid for time over 40 hours ? One also runs the risk of being ‘blackballed’ in the industry. Ed Dimon, Esq. 732-797-1600... Read More

Let me clarify the exempt/non-exempt issue before I try to answer your question.  Employers who make more than $500k per year in gross revenue and have involvement in interstate commerce (which almost every employer does) must pay employees at least minumum wage and pay them overtime for hours worked in a single week over 40.  The requirement to pay overtime is subject to some statutory and regulatory exemptions that are too lengthy to explain here in full.  For example, if the employee is a professional (Doctor, lawyer, accountant, engineer and others that require advanced education) or a administrator (someone who has the ability to interpret policy and/or make recommendations about important issues - like the head of HR) or an executive or member of managment and there are others are all exempt from the overtime payment requirement as long as they are paid a consistent salary over about $23,500 per year.  The exemption tests are based on job duties, not titles. A differrent set of laws prohibits discrimination in pay on the basis of race or gender, among other things.  To determine whether there is a violation of those laws, one must ask whether others are being paid more for the same or substantially similar work and whether the reason for that difference is race or gender.  In connection with this inquiry, it doesn't really matter whether those employees are exempt or non exempt.  If their total pay is higher than yours and the reason for that difference is race or gender, then your employer is probably violating the law.   Many employers get the classification issue (exempt v. non-exempt) wrong, either through lack of understanding of the law or just plain cheating the system.  If an employee is mis-classified as exempt and is working more than 40 hours per week, that individual is losing money.  However, the reverse is not necessarily true.  A company can never go wrong paying an employee hourly, even if that person is the presiden of the company.   If you think you are being discrimiated against because of your race or gender, you should contact the EEOC or the Texas Workforce Commission - Civil Rights Division (doesn't matter which but the EEOC is a little scarier for employers).  If you think you have been mis-classified as exempt, when you really should be hourly, you should contact the US Department of Labor, wage & hour division.  Both the EEOC and the DOL have websites that will explain these matters further.  ... Read More

As I suggested on another list where you posted this question you were likely "at will". They need no reason to fire you. If you chose to date someone at work it is not at all unusual that those relationships eventually result in one or both daters losing their jobs. Was that discrimination? It could have been if the employer did not approve of who you were dating (for example someone of the same gender since gender discrimination is illegal under Title VII "because of sex" prohibitions when such actions are motivated by gender or gender identification). But those are not your facts. If you have a written contract of employment or union agreement pay one of us to review it for you. If you have no protection and there was no discrimination apply for unemployment and secure a new job. Good luck.... Read More

It sounds like you've answered your own question.  If your employer has already refused to reimburse another employee for stolen tools, get insurance to cover yourself.  If you are required to supply your own tools and you also supply a locked tool cabinet, the employer would not be liable for loss due to theft unless it was reasonably foreseeable to the employer that the theft would occur.  Given that theft has already happened once, it may be foreseeable that it would happen again, but this would depend on many circumstances.... Read More

You must weigh the benefits of the separation agreement against the risks of bringing an action for whistle blowing. Oftentimes, the company will increase the benefits to avoid any issues. Whistle blowing actions are expensive and time consuming and present future employment issues. Please call to discuss. Ed Dimon, Esq. 732-797-1600... Read More

Let's start with some basics - You as the client have the absolute right to terminate the lawyer's services at any time.  (Fracasse v. Brent (1972) 6 Cal.3d 784, 790.)  When a client discharges a lawyer, the lawyer is entitled to be paid for the services provided as set by the fee agreement. An attorney, however, does not have an absolute right to withdraw from representing a client for any reason or whenever he or she feels like it.  The way an attorney withdraws, and under what circumstances, can affect whether the attorney can enforce a lien against the client's case.  For example, an attorney may not withdraw until the attorney has taken "reasonable steps to avoid reasonably foreseeable prejudice to the rights of the client, such as giving the client sufficient notice to permit the client to retain other counsel.  (Rules of Professional Conduct, Rule 1.16(d).)  If I understand your question correctly, your attorney quit in the midst of your deposition, which could be highly improper if the deposition is continuing immediately. Under certain circumstances, attorneys must withdraw from representing a client, such as when a client asks the attorney to violate the law or rules of professional conduct, or where the attorney has a mental, physical, or emotional condition that makes it unreasonably difficult to continue the representation.  Attorneys must seek a court order allowing their withdrawal. In other cases, an attorney may permissively withdraw.  The most common scenario is a personality clash with the client.  This is good cause for withdrawal, but it is not necessarily a justifiable excuse that would allow an attorney to enforce a lien.  (Estate of Falco (1987) 188 Cal.App.3d 1004, 1014).  And, again, the attorney must get court approval. The circumstances leading to your attorney's withdrawal are not fully described, but what is described seems suspect.  Request your complete client file, both hard copies and electronic documents.  You are entitled to everything at no cost to you, even if the attorney says you owe him or her money.  And, then seek in-person advice right away.  If your deposition is set to continue, ask the other attorney(s) involved to "stipulate to a continuance of the deposition," and put the agreement to postpone your deposition on the record with the court reporter in the room.... Read More

You should consult with a FMLA and ADA lawyer. Our firm regularly handles FMLA and ADA legal claims for our clients. We offer free consultations and work on a contingency fee.    Ohio FMLA attorney https://mcoffmanlegal.com/practice-areas/columbus-family-and-medical-leave-act-lawyer/... Read More

Contact an employment attorney immediately. We represent employees throughout Ohio. We offer free consultations and work on a contingency fee. This could be a violation of FMLA and ERISA.    Ohio FMLA lawyer https://mcoffmanlegal.com/practice-areas/columbus-family-and-medical-leave-act-lawyer/... Read More

Are you a member of one or more protected classes of employees and if so, was the yelling by your supervisor because of your membership in such class or classes. Yelling at you or demeaning you is not illegal unless that occurred because of your membership in a protected class. This is complicated stuff. Call some employment lawyers to discuss if you believe it was discriminatory. The United States Supreme Court tells us that Title VII is not a general civility code. Your employer can yell, humiliate or demean you unless you can prove it was discriminatory. However, if you happen to work in one of New York City's 5 Boroughs the burden of proof is different. Generally a little easier to prove discrimination in New York City than in the rest of New York and the country. ... Read More

There are several issues wrapped up in your question.  Let's start with the term, "1099 employee" - while I recognize that term is common and is a pay status that is frequently [mis]used, legally there is no such thing.  If you are an employee, taxes are withheld from your check and you get a W-2 at the end of the year.  If you are an independent contractor, you are paid by the job and you get a 1099 at the end of the year. Oversimplifying things a bit, you are an employee if your employer tells you when and where to do your work, gives you the tools and supplies with which to do your work, and supervises the details of your work.  Further, if the work you perform is an integral part of the goods and services the employer provides to his customers, you are probably an employee.  You are a contractor if you provide your own tools and supplies, if you are free to hire other employees to do the work, if you pick your own schedule, if you are free to work for other people.  Guessing from the context of your question, I'd say you are an employee.  Which means you should be getting overtime and any other benefits, such as workers comp or insurance, the employer offers other W-2 Employees.   Whether you are a contractor or an employee and unless you have a written contract that says otherwise, your employer is free to change your wages or pay rate on a go-forward basis (ie for the work you do in the future) but he is not free to change the rate of pay for the work you have already done. You use the word "salary".  Are you paid a flat rate per week or per day for all hours worked or do you get paid for the number of hours you actually work?  Do you ever work more than 40 hours in a single week?  If so, does your employer pay you 1.5x your hourly rate for the hours over 40?  If you are working more than 40 hours per week and not getting overtime, you should visit the U.S. Department of Labor's Wage & Hour office there in Houston and discuss your situation.  ... Read More

There are two sets of law that apply to this situation - federal and California.  The Affordable Care Act ("ObamaCare") amended federal wage and hour laws to require employers to provide reasonable, unpaid lactation breaks for new mothers for up to 1 year after the birth of the child. Employers with fewer than 50 employees are not required to accommodate if doing so would impose an "undue hardship" on the employer, meaning it would be difficult or costly given the employer's size, facilities, and other available resources. California law is much broader in terms of rights.  In 2002, the Legislature made it mandatory that all employers regardless of size accommodate mothers with unpaid breaks to express milk and other provisions. (See, Cal. Labor Code 1030, 1031.)  An employer is not required to provide the breaks if it would "seriously disrupt" the employer's business, but this is a more difficult standard to meet than "undue hardship" under federal law.  (Labor Code 1032.) Labor Code 1033 provides for civil penalties of $100 per violation. California law does not impose time limitations, as does federal law. These statutes collectively provide rules stating which employers are covered (all employers), expressing milk v. breastfeeding at work (latter is not covered unless the employer has child care facilities at work), location (must provide private location, not toilet stall), the "serious disruption" exception, and civil penalties for violations.  You can read more here from Nolo.com. It sounds to me like your employer is treading on thin ice already, and it would be illegal for your employer to deny you the right to express breast milk after the 1 year period, as that time limitation only applies under federal law, not California law.    ... Read More

You are in a difficult legal position. You are scheduled to receive a severance and the date keeps getting extended. If you quit, you will not be paid the severance. I would work with the employer to keep getting paid as long as possible. You may also be able to obtain continued employment with them. Ed Dimon, Esq. 732-797-1600... Read More

The answer to your question turns on whether you meet the requirements for an exemption to the overtime pay requirements of the federal Fair Labor Standards Act (FLSA).  If you are exempt, your employer is not required to pay you overtime pay.  Further, absent some industry-specific regulations, in general there are no limits on the number of hours an employer can require you to work. Whether or not you are exempt depends on a number of factors including whether or not you are paid hourly or on a salary basis, whether or not your compensation is subject to increase or decrease based on the quantity or qualty of your work and what job duties you regularly and customarily perform.  So the determination of your status as exempt or non-exempt is one that can't be resolved in this forum.  That said, my quick search of several sources on the subject indicates that RNs are often considered exempt under the Professional exemption to the FLSA which also covers doctors, lawyers, accountants, engineers and other for whom advanced education is required for the job.  You can get a definitive answer to that question by visiting with your local US Department of Labor Wage & Hour office.  There is one in all of the major Texas cities.  Dallas and Ft. Worth share one located in Arlington. If you are exempt and the work-load situation you describe appears to be a permenant condition of that position, consider using your remaining time there to look for another job.  ... Read More

Disclaimer - This is not legal advice, nor does it form the basis of an attorney-client relationship.   There is no exact science to what a severance package entails. It is whatever you feel comfortable giving, either in terms on monetary compensation or an extension of benefits such as healthcare. ... Read More