Answers Posted By Francis Fanning

Answer to Could this be age discrimination?

The facts you report suggest that age may have been a factor in the decision to lay your mother off, but the mere fact that she is nearly 65 is not the only thing to be considered. What was the age of the other person laid off? What were the ages of the transcriptionists kept, and what jobs were they given? If the other person laid off was also older than the people kept, this would certainly strengthen your mother's argument. If the other transcriptionists had skills your mother didn't have that related to the positions they were given, this would weaken her case.
As with any discrimination case, your mother has the burden of presenting a prima facie case of age discrimination and ultimately proving that age was the reason for her termination. Unlike other forms of discrimination, in an age case it is not enough to show that age was a motivating factor. A recent U.S. Supreme Court case, Gross v. FBL Financial Services, held that age must be the "but for" factor for the adverse action.

posted Jan 26, 2010 12:19 PM [EST]

Answer to Can an employer request separate physician notes for intermittent leave?

The U.S. Department of Labor has promulgated detailed regulations addressing questions regarding the application of the FMLA. The answer to your question is found in 29 C.F.R.§825.308. Normally, an employer may not request recertification any more often than once every 30 days. In the case of an approved intermittent leave, the employer cannot request recertification during the period for which the intermittent leave was certified as necessary unless:
1. the employee requests an extension of leave; 2. circumstances described by the previous certification have changed; or 3. the employer receives information that casts doubt on the continuing validity of the certification.
This limitation means that an employer cannot require you to provide medical certification every time you use intermittent leave.

Your employer may be asking for a note from the doctor simply as evidence that you went for an appointment, rather than as recertification of your need for intermittent leave. This issue is not addressed in the regulations. However, most doctors provide patients with a statement of charges every time the patient visits. I would suggest that this should be adequate proof to your employer that you did indeed attend a medical appointment, and demanding anything further from the doctor would arguably violate the regulation.

posted Nov 23, 2009 12:04 PM [EST]

Answer to Do employers have to track salaried, NON-EXEMPT employee hours?

An employer is required to pay overtime to non-exempt employees, whether they are salaried or hourly. It is the employer's responsibility to keep proper records of hours worked. There is some controversy about how overtime is calculated for salaried non-exempt employees, but there is no question that an employer who fails to keep a record and pay for overtime hours can be liable for unpaid overtime and liquidated damages.
If you are working more than forty hours per week and not being paid overtime, you should keep your own record of the hours worked and report the hours to your employer so that there is no question about whether you worked the hours. If the employer refuses to pay overtime as required, go to the U.S. Department of Labor and make a complaint with the Wage and Hours Division.
There is an exemption for certain computer professionals, but it only applies if you are being paid at least $27.63 per hour.

posted Nov 17, 2009 11:12 AM [EST]

Answer to Employee Agreement includes non-compete clause. Is non-compete reasonable and/or enforcable?

Arizona law limits non-compete agreements to those that are necessary to protect legitimate interests of employers, and they must be reasonably limited in time and geographic scope. Whether the agreement is necessary, whether one year is reasonable and whether an agreement that covers the entire country is reasonable are all questions that depend upon the nature of the job and the industry.
I would not recommend that you change the language, since that will only serve to make it more easily enforceable. Before negotiating with the prospective employer over the non-compete, you should have it reviewed by an experienced employment attorney and discuss the practical as well as legal issues that these agreements present. These agreements often create a stumbling block when you seek other employment, regardless of whether they are enforceable.

posted Nov 13, 2009 5:12 PM [EST]

Answer to Is this wrongful discharge or retaliation?

I cannot say whether the facts you described would be enough to prove a constructive discharge. Constructive discharge occurs when an individual quits on account of conditions made so oppressive by the employer that a reasonable person would feel compelled to quit. The "reasonable person" standard is an objective standard. In other words, the fact that you feel compelled to quit doesn't mean that others in your situation would feel the same way. The standard creates a fact question, which in court is normally decided by a jury at trial.
What is more important is that proving a constructive discharge is simply a way of proving a discharge as opposed to a voluntary resignation. That alone does not make the discharge wrongful. I assume that you work in the private sector and that you do not have a written employment contract or a union collective bargaining agreement that requires your employer to have good cause to terminate you. If this is true, your employer is free to terminate you for any reason or no reason, as long as the reason doesn't violate public policy. Although there are certain kinds of retaliation that make a termination wrongful, retaliation for being perceived as a troublemaker is not enough. Unless you complained about unlawful discrimination, reported unlawful conduct or refused to participate in unlawful conduct, you are not protected from retaliation.
The unemployment question is somewhat different. You need not prove wrongful discharge to collect unemployment, but you must show that your termination was not voluntary. Unemployment officials use a somewhat more relaxed standard for finding a constructive discharge. Nevertheless, the burden is yours to prove that your resignation was not truly voluntary.

posted Nov 12, 2009 12:17 PM [EST]

Answer to How do I fight unemployment disqualification if it was a voluntary quit?

Ordinarily you will not qualify for unemployment if you quit voluntarily. To qualify, you must convince the administrative law judge who is hearing your appeal that the facts leading to your resignation constitute a "constructive discharge." One form of constructive discharge that has been recognized for unemployment compensation purposes is a drastic reduction in earnings. The employer's decision to make you a "1099" contractor was not a legitimate act unless it involved substantially more freedom than you had as an employee. If your duties remained the same, you were still an employee for purposes of being covered by unemployment insurance. I would recommend that you explain the facts to the judge, emphasizing the drastic reduction in pay and the other unfavorable treatment, and hope that he or she finds it to be a constructive discharge.

posted Nov 9, 2009 11:32 AM [EST]

Answer to Can my employer change the percent I am vested in my 401(k) after firing me?

A 401k plan is governed by a body of tax and benefit law known as ERISA, the Employee Retirement Income Security Act of 1978. Any ERISA benefit plan has to be operated in accordance with a plan agreement that dictates how and when benefits are payable, and when vesting occurs. Your employer has no discretion in changing or denying benefits. The plan requires a document, called a "summary plan description," to be made available to a plan participant upon request. This document summarizes the terms of the plan, including the vesting terms. If you have questions about your plan benefits, the plan has a plan administrator, who may or may not be your employer or someone in the employer's organization. You should direct your questions to that person. The plan is also required to have an appeal process if you are dissatisfied with the administrator's decisions regarding benefits. All of this information is contained in the summary plan description. If you do not have it already, I suggest you ask for one and follow the instructions for contacting the plan administrator, and, if necessary, appealing the decision to limit the percentage of your vesting. If it gets more complicated than that, you should consult with an attorney.

posted Aug 24, 2009 4:47 PM [EST]

Answer to Who notifies my previous employer that I've secured a new job so that severance payments are stopped

There is no assurance that your former employer will discover that you have a new job if you don't report it to the old employer. However, it is likely that the information will come to light at some future date, and the old employer will then demand repayment of the excess severance payments. Depending on the amount overpaid, you may be facing a lawsuit that will seek attorney fees and interest as well as a refund of the overpayment. As in most situations, honesty is the best policy.
If you ever intend to use the former employer as a reference in the future, your honesty about finding new employment and ending the payment of severance will likely be seen as refreshing and admirable and a reason to praise you as a reliable employee. Trying to get some extra money by not reporting it will likely poison your reputation with the former employer and taint any good reference you might otherwise expect.

posted Aug 19, 2009 11:05 AM [EST]

Answer to I am a Shop Stewert for a large company. I had a violation and was treated harsher then others with the same violation. Is this retaliation?

If your boss decided to write you up because of your criticism of him on behalf of the other employees, this would be an unfair labor practice. You should complain to the National Labor Relations Board and have the board investigate it.

posted Aug 5, 2009 12:24 PM [EST]

Answer to Severance pay for some, but not all - Fair or Unfair?

Severance pay is usually paid by an employer in return for a release from any legal claim. Although is is common for employers to pay severance in the event of layoff, it is not required by law. You are right in noting that paying severance to some employees and not to others is discriminatory. However, employment discrimination is not unlawful unless it is based upon some unlawful criterion, such as sex, race, religion, color, national origin, age or disability. The fact that the employer paid severance in the past but is not paying it in this round of layoffs may have to do with the employer's financial distress. If others who were laid off with you did not receive severance, you will have a hard time making a case by comparing yourself to people who were laid off in earlier days.

posted Aug 3, 2009 11:44 AM [EST]