Answers Posted By Phyllis Towzey

Answer to Can an employer deny FMLA for Military Exigency even though the employee hasn't received FMLA P/W?

It appears that your husband's employer is not educated about the FMLA, particularly the newer provision for military exigency leave.

I recommend that as a first step your husband provide his employer with a copy of the Department of Labor (DOL) fact sheet on Military Exigency Leave, which is available here:

http://www.dol.gov/whd/regs/compliance/whdfs28mc.pdf

If they still are not cooperating, then you can seek assistance from the Wage and Hour division at the phone number on the fact sheet.

Another option is to hire an employment attorney to send a letter to the employer advising them of your husband's FMLA rights, and warning them of the consequences if they refuse leave, retaliate against your husband, or otherwise violate the FMLA. However, this can be expensive for you - getting an attorney to deal with this would probably cost $500 to $750. That's why I think that, as a practical matter, you should try the two other options I mentioned above first. Of course, if they do take adverse employment action as threatened, then it's definitely time to get a lawyer involved, and your lawyer can demand that the company reimburse you for your attorney's fees.

Thank you to you and your husband for your service - I'm sorry to hear his employer has been so reluctant to provide the leave he is clearly entitled to.

posted Sep 8, 2015 3:26 PM [EST]

Answer to i have been working for the same company for 7 years. Just recently a new company came in and bought them out, and is demanding that I sign a non-compete. My old employer never had me sign one. If I refuse to sign and they say that I must or I can't work

Yes, they can let you go if you refuse to sign. You may be eligible for unemployment, because this requirement is a material change in the terms and conditions of your current job. However, I have not researched specific cases where this argument was made in an unemployment claim. You should consult an employment lawyer to research this before making a decision whether to quit your job. Another option is to discuss with your employer whether any part of the noncompete is negotiable (i.e. will they reduce the geographic area or the time period, or more narrowly the define the specific competitive activities you are restricted from engaging in).

posted Aug 30, 2015 08:54 AM [EST]

Answer to In Florida, are employers required to pay employees after they give a two week notice? I gave a two week notice to my employer and they told me not to come in for those two weeks. Are they required to pay me for those two weeks because I gave them notice?

They do not have to pay you for the notice period; however, you are entitled to receive unemployment compensation benefits for the two week period.

posted Aug 28, 2015 07:08 AM [EST]

Answer to Can one be forced into a new role when the position is eliminated?

First, let me say I'm sorry to hear that you find yourself in this position. I'm sure it's very upsetting considering the timing and your many years of service with the company. The issue is going to be how different the new role is - you mention it's a new reporting structure, but it's not clear from your question whether it's also a substantially different job. If the company is reorganizing and just realigning your old responsibilities under a new reporting structure, then you probably have no choice but to accept the position. I agree with Mr. Schofield that you have a very difficult claim if you turn down the offer.

However, if the job is sufficiently different in duties, and in the past the company has a practice of offering the option of a transfer OR a severance package, then you should tell HR that you don't understand why this choice is not being offered to you, and that you are concerned that it may be related to your pregnancy. Under the Pregnancy Discrimination Act (part of Title VII) a company must treat you the same as they would if you were not pregnant. This also means, however, that being pregnant does not give you any additional job protection (other than your rights under the FMLA).

Good luck!

posted Jul 31, 2015 11:07 AM [EST]

Answer to If I use a company credit card for personal use but pay for it is that still illegal?

It depends on the company's policy regarding use of the credit card for personal purchases. If the company does not permit that, then this could be considered theft (you were using the company's credit/money without their consent for the time period from the purchase until you made payment). At the very least, it was a breach of your fiduciary duty to the company.

posted Jun 24, 2015 3:25 PM [EST]

Answer to I walked out of my job and quit, can my employer cut my pay to minimum wage! I did not give notice!

Generally a company cannot retroactively change your rate of pay. However, they could reduce your last paycheck as you describe if the company had a written policy in place that stated that if an employee failed to give a specific notice they would be paid only minimum wage for their last paycheck. Of course, if you have a written employment agreement, then what is in that document would control.

posted Apr 17, 2015 09:21 AM [EST]

Answer to I was terminated and accused of stealing from my ex employer. I proved through invoices and direct contact with clients that I did not steal from my ex employer who did no leg work to find out if what he had heard was true. Do these circumstances negate a

Your non-compete is probably still enforceable, but you should have a lawyer review it to get a definite answer. Most non-compete agreements have a provision saying that it is a separate and independent covenant, and that it is enforceable regardless of the reason employment terminates.

posted Feb 5, 2015 3:17 PM [EST]

Answer to I had a mental breakdown due to stress and anxiety from work. The more I tried to do wht was asked the more I was told I was wrong and written up. The treatment I received enhanced my mental state to the point of

You may have a claim for wrongful termination under the FMLA, but only if your use of FMLA leave was the basis for your termination. If you would have been fired anyway, then you would not have a claim. The company will likely argue that you were fired for all the performance issues you were previously written up for.

Other possible claims could include an employment discrimination claim, if you were harassed at work based on your sex, race, religion, disability, or other protected class -- it's not clear from your question whether you feel you were just unfairly treated and given unrealistic demands at work (not illegal) or harassed for one of the reasons noted above (which would give you a claim). Also, if your stress-related condition is a symptom of a disability, you may have rights under the ADA if they refused to reasonably accommodate you.

These situations are very fact-specific, and I recommend you meet with an employment law attorney in your area to review your circumstances in more detail, and advise you.

All in all, though, it sounds like even if you do not have a viable legal claim, you were in a workplace that was toxic to your mental health. I wish you the best of luck finding a job in a more employee-friendly environment.

posted Feb 3, 2015 4:34 PM [EST]

Answer to I was accused of stealing a phone and fired...

You have a claim for assault and battery. You did not mention whether the police arrived. If they were not called, you should go ahead and report the crime. You should then speak with an attorney about filing a civil action for assault and battery against the manager, as well as an action for damages against the employer for breach of fiduciary duty and negligent supervision (of the manager who assaulted you). As far as your job, it may be something your attorney can negotiate with the company over, but you would not have a claim for wrongful discharge if you were fired because they incorrectly believed you were guilty of theft, unless you have a written employment agreement that guarantees you certain rights, or unless you are in a union. Florida is an "employment at will" state, which means your employer can fire you for no reason at all. You should consult with an attorney who practices in your area (Miami?). Good luck. I'm sorry you were treated this way.

posted Oct 7, 2014 3:17 PM [EST]

Answer to Can a employer make Saturday mandatory after a 40 hour work week ?

I agree with Mr. Schofield's answer, with one caveat - if you have a genuinely held religious belief that prevents you from working on Saturdays - for example, you are a Seventh Day Adventist or an Orthodox Jew - then, depending on the circumstances, you may be entitled to a reasonable accommodation on religious grounds for some or even all Saturdays. This accommodation, however, is not automatic, and you should consult an employment law attorney before addressing it with your employer.

posted Sep 9, 2014 08:02 AM [EST]