Phyllis Towzey
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Answers Posted By Phyllis Towzey
Answer to My employer laid me off 6/28/16 and did pay me the last 2 weeks on 7/1/16. They also offered 2 weeks
I'm a little confused by your question - you said they DID pay you for the last 2 weeks, but then you said "still no pay for working or severance." As Mr. Schofield indicated, you have a right to recover your wages for any time actually worked.With respect to the severance, however, it would depend on whether you gave them anything in exchange for it -- for example, if you signed an agreement releasing them from potential claims, or agreeing not to say bad things about the company. If there was no agreement and nothing done by you in exchange for the severance, however, then legally they probably can change their minds about paying you the severance. If the severance is the only issue (not unpaid wages for hours worked) then you are better off just continuing to follow up with them yourself, rather than spending money on attorney's fees.
posted Jul 12, 2016 06:27 AM [EST]
Regarding the first employee who damaged the equipment, unless you have a signed authorization from the employee to deduct money from his paycheck for damages to equipment, you should not do so. Further, even with a signed authorization, you cannot make a deduction from any paycheck that would then take that pay period below minimum wage.
I also do not recommend reducing his pay retroactively to minimum wage as punishment for walking off the job, unless you had a written policy in place that he was aware of that required employees to give a certain notice (for example two weeks notice) to resign, and stated that violations of that policy would result in their final paycheck being reduced to minimum wage.
I know you feel that this employee took advantage of you and your first reaction is to reduce him to minimum wage or subtract the cost of the damage or not pay him at all. However, the best approach is just to pay him the full wages through the day and time he walked off the job, and just let go of the frustration. You don't want to risk getting a demand (or worse, a lawsuit) from an attorney claiming you violated the wage and hour laws with respect to the final paycheck, as you will then have to incur your own legal fees to defend yourself, and potentially end up paying the employee's lawyer's fees as well. All of that will cost you significantly more than just paying employee the agreed upon wages.
I don't have enough information about the damaged equipment (was it a simply accident vs the employee being grossly negligent or intentionally misusing the equipment) to advise you further than what I stated above.
Regarding the second employee, if you have an address for him, notify him by mail that he is entitled to be paid for the 2 days he worked, but that he must provide the information needed for a paycheck to be issued (for example, his Social Security number). Since he only worked there for 2 days and never filled out the HR info and was not entered into payroll, in my opinion you could pay him by 1099. If you don't have an address for him, leave a message to that effect on his phone, and put a memo in the file that this was done. That way if he resurfaces later and claims you refused to pay him, you have documentation that protects you.
Sorry this advice is probably not what you wanted to hear, but based on my experience with many similar situations, it's the most practical and cost-effective way to handle these situations.
If you need more detailed advice, please contact my office and reference this Question on MEL.
posted Jul 4, 2016 08:56 AM [EST]
I also do not recommend reducing his pay retroactively to minimum wage as punishment for walking off the job, unless you had a written policy in place that he was aware of that required employees to give a certain notice (for example two weeks notice) to resign, and stated that violations of that policy would result in their final paycheck being reduced to minimum wage.
I know you feel that this employee took advantage of you and your first reaction is to reduce him to minimum wage or subtract the cost of the damage or not pay him at all. However, the best approach is just to pay him the full wages through the day and time he walked off the job, and just let go of the frustration. You don't want to risk getting a demand (or worse, a lawsuit) from an attorney claiming you violated the wage and hour laws with respect to the final paycheck, as you will then have to incur your own legal fees to defend yourself, and potentially end up paying the employee's lawyer's fees as well. All of that will cost you significantly more than just paying employee the agreed upon wages.
I don't have enough information about the damaged equipment (was it a simply accident vs the employee being grossly negligent or intentionally misusing the equipment) to advise you further than what I stated above.
Regarding the second employee, if you have an address for him, notify him by mail that he is entitled to be paid for the 2 days he worked, but that he must provide the information needed for a paycheck to be issued (for example, his Social Security number). Since he only worked there for 2 days and never filled out the HR info and was not entered into payroll, in my opinion you could pay him by 1099. If you don't have an address for him, leave a message to that effect on his phone, and put a memo in the file that this was done. That way if he resurfaces later and claims you refused to pay him, you have documentation that protects you.
Sorry this advice is probably not what you wanted to hear, but based on my experience with many similar situations, it's the most practical and cost-effective way to handle these situations.
If you need more detailed advice, please contact my office and reference this Question on MEL.
posted Jul 4, 2016 08:56 AM [EST]
Answer to What if I cannot move merchandise to sales floor in 11 minutes and need at least 15 minutes.
Under the ADA an employer must make a reasonable accommodation that would allow you to perform the essential functions of your job, so long as making that accommodation does not cause an undue hardship to the company.The question here would be whether speed (11 minutes vs 15 minutes) is an essential function of the job, and whether allowing you to take more time would cause an undue hardship to the employer. I can't answer that without more facts about your specific situation.
posted Jul 4, 2016 08:05 AM [EST]
Answer to Can I still get another job and still receive severance pay?
This depends entirely on what it says in her severance agreement. In most cases, the answer would be yes, but whatever the agreement says will control.posted Jul 4, 2016 08:02 AM [EST]
Answer to My boss got in my (a minors) face, what can I do?
I'm so sorry you had a bad experience like this - sometimes people are just jerks. Unfortunately, there are no employment laws that stop a supervisor from being an obnoxious bully, with two exceptions: (1) if his conduct is threatening to the point of being criminal assault (assault does not require that he actually touch you - here's the definition under Florida law:784.011 Assault.— (1) An “assault” is an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.
The other exception is if he is yelling at you and singling you our for this kind of treatment BECAUSE of your membership in a "protected class" - i.e. because of your race, your sex, your religion, your disability, your national origin, your sexual orientation, etc. (age doesn't count if you are young - only if you are over 40). Then if this sort of conduct is repeated frequently you could have a claim of 'hostile workplace" discrimination. Again, however, that only applies if he is singling you out and treating you differently BECAUSE of your sex, race, etc. For example, if he is yelling at you and his insults include demeaning you because you are a woman - calling you a bitch or a stupid girl, etc.
Likely, he's just a jerk and in that case there's really nothing you can do about it, unless it is at the assault level - in which case you can call the police.
As far as his demands about your nails, in Florida dress code and appearance requirements don't have to be reasonable or make sense - it's the company's choice. Unless we get into an area where they are discriminating against certain groups (like not letting a Muslim woman wear a head scarf).
You are young and it probably won't be the last time you have to deal with a boss like this - I know that's not much comfort now.
If things get so bad that any reasonable person would be unable to tolerate the work environment, then you could quit and still be eligible for unemployment - but that's taking a chance (and you won't qualify usually anyway unless you've already worked there for at least 90 days).
My best advice to you would be try not to let him upset you. Keep working there but look around for another job with a company that treats its employees better.
Good luck! .
posted Jun 30, 2016 08:25 AM [EST]
If you collect unemployment benefits for the 45 days, and then your employer later pays you severance wages for those same days, you would owe the unemployment compensations benefits you received back to the state for any day that was a duplication.
posted Jun 27, 2016 08:09 AM [EST]
posted Jun 27, 2016 08:09 AM [EST]
I assume that your employer takes a "tip credit" under the wage and hour laws and pays you a base pay of less than minimum wage. If that is the case, then requiring you to pay for walkouts, breakage, kitchen errors such as the one you describe, etc. is illegal.
So, where does that leave you? Well, if this is an isolated incident, the employer owes you the $50, plus full minimum wage for that work week (since violating the tip credit voids the right of the employer to take the tip credit for that week), x 2 for liquidated damages. Also, if you have in fact been fired in retaliation for objecting to this practice, you also have a claim for wrongful termination under the Fair Labor Standards Act (the wage and hour laws).
My suspicion is that if this incident occurred it's probably not the first time your rights have been violated. You have three options, in my opinion:
1. Make an appointment to consult with an attorney and review your situation. Many attorneys practicing in this area of the law provide a free initial consultation (I do not - I try to help people out through MEL, but I charge for consultations). Your lawyer can then evaluation your claim and send a demand letter to the employer, or even file a lawsuit.
2. Contact the Department of Labor. Here's a link that walks you through that process step by step: https://www.dol.gov/wecanhelp/howtofilecomplaint.htm />The DOL will investigate your claim and audit the business on behalf of all employees. Typically they work out a settlement plan with the employer to get everyone who has worked there in the last 2 years paid properly, and to stop future violations.
3. You can just write this off as a bad experience and walk away. You are out $50 that we know of for sure, and you were working in an bad environment where the owner is apparently habitually drunk on the job. It is illegal for any other restaurant to refuse to hire you because you sued a former employer, but people talk and it does happen.
Any of these options are fine - it's whatever works best for you. Good luck!
posted Jun 17, 2016 06:33 AM [EST]
So, where does that leave you? Well, if this is an isolated incident, the employer owes you the $50, plus full minimum wage for that work week (since violating the tip credit voids the right of the employer to take the tip credit for that week), x 2 for liquidated damages. Also, if you have in fact been fired in retaliation for objecting to this practice, you also have a claim for wrongful termination under the Fair Labor Standards Act (the wage and hour laws).
My suspicion is that if this incident occurred it's probably not the first time your rights have been violated. You have three options, in my opinion:
1. Make an appointment to consult with an attorney and review your situation. Many attorneys practicing in this area of the law provide a free initial consultation (I do not - I try to help people out through MEL, but I charge for consultations). Your lawyer can then evaluation your claim and send a demand letter to the employer, or even file a lawsuit.
2. Contact the Department of Labor. Here's a link that walks you through that process step by step: https://www.dol.gov/wecanhelp/howtofilecomplaint.htm
3. You can just write this off as a bad experience and walk away. You are out $50 that we know of for sure, and you were working in an bad environment where the owner is apparently habitually drunk on the job. It is illegal for any other restaurant to refuse to hire you because you sued a former employer, but people talk and it does happen.
Any of these options are fine - it's whatever works best for you. Good luck!
posted Jun 17, 2016 06:33 AM [EST]
Answer to unemployment for Graduate teaching assistant
If you were a paid employee, then I don't see why you could not apply. The worst that will happen is that the claim will be denied. Go here and follow the instructions to apply online: http://www.floridajobs.org/job-seekers-community-services/reemployment-assistance-center/claimants/file-an-initial-claimposted Jun 15, 2016 2:27 PM [EST]
Well, it depends on which pay stubs are in error. Have you kept track of the vacation time you've used and accrued? You are not entitled to claim more if in fact it was an error, just like you could not keep the money if your employer accidentally printed a double paycheck for you.
posted Jun 15, 2016 2:22 PM [EST]
posted Jun 15, 2016 2:22 PM [EST]
Answer to Sudden Demotion, pay cut, and being told to take it or leave. Help?
There's not much you can do about this situation unless you believe the new supervisor made this decision based on your disability. If he did, you could have a discrimination claim under the ADA. However, if his decision was based on cost-cutting and he really does believe that having a part-time QA Auditor is "wasting money" then that may not be fair, but it's not illegal.The demotion and change in job responsibilities, however, may be sufficient for you to qualify for unemployment compensation benefits if you decline the demotion and leave your employment.
I'm sorry this is happening to you, and wish you the best.
posted Jun 10, 2016 12:42 PM [EST]