Answers Posted By Anthony Cameron

Answer to I was laid off and then replaced...

STANDING ALONE, NO FOUL

Simply because an employer arbitrarily eliminates then replaces a position does not establish a cause of action in Illinois.

If, however, there is sufficient evidence to conclude that this was done because of one of the prohibited human rights categories (Illinois' can be slightly broader than the federal ones) such as race, gender, age, disability, national origin (there are others). The size of the layoff would suggest this was not a targeted whack at you but it is really hard to tell from you limited explanation.

There are a lot of fine employement lawyers in Lake County. I suggest you arrange a consultation. Human Rights cases are very fact-driven and only a skilled questioner.

If you just refuse to pay for a consultation, go to the Illinois Human Rights Department's (not Commission) and talk to one of the intake screeners. Sometimes they will get interested enough in what you tell them that they'll bring a supervisor in to help vet your case. There is no charge for this service but you are not getting an overall legal checkup of your situation that way either.

You have 180 days from the time you learn of the discrimination so don't delay in doing something!

Anthony B. Cameron
Quincy, Illinois

posted Jun 28, 2006 7:29 PM [EST]

Answer to Was I discriminated against based on my Nationality?

BEST ANSWER IS PROBABLY IN YOUR FEEDBACK

If you brought that case into my office, I'd want to see your disciplinary record and your evaluations for your whole career. If there had been a downturn even before the trip to Italy, I'd probably tell you to walk away from the whole thing. If there was no warning at all that your performance or deportment was slipping, I'd urge you to at least take the first step.

Other than that, I can't add much to what Aaron said. Perhaps you're in touch with him by now. He'll take excellent care of you.

posted Jun 24, 2006 4:36 PM [EST]

Answer to Signed non compete and was fired 6 months later -

SOME BAD NEWS AND SOME NO NEWS

No competent lawyer is going to interpret an unavailable document for you.

Your one question is: Can they enforce a document, otherwise enforceable, which I don't have and they won't give me? Sure they can.

Under Illinois Law, you can get a copy of your personnel file IF YOU WERE AN EMPLOYEE. Given that you were an outside contractor, you probably don't have that right. If I were you I'd write them and act as if I did and ask for a copy of all documents related to your service there. Who knows? They might comply.

If they send you some things and not the agreement, you can later argue that they abandoned their rights under the agreement.

You really need to sit down with a skilled employment lawyer and devise a strategy. Keeping a stiff upper lip and hoping for the best will probably get you in world of hurt here. Talk to a lawyer.

posted Jun 24, 2006 4:31 PM [EST]

Answer to FMLA(first its serious enough, now its not)

TODAY, THE ANSWER IS "NO"...

You can't hold him or her accountable. Physicians' independent judgment is universally protected. Whatever caused the physician to change his/her mind is almost certainly not actionable.

It sounds to me like you have first a medical provider problem and then a resultant legal problem. You fix the provider problem and the legal issue goes away. Moreover, it is probably desirable to maintain your eyesight to the greatest degree possible.

One way to get current care and to make sure there are always folks around to sign you FMLA papers is to go to a teaching hospital. If I were in your shoes, wild horses could not keep me from going to one of the fine teaching environments up there. You'll have 20 doctors instead of just one and probably a little clearer instructions as to how to protect your eyes.

Also, and I don't want to name them all, you live in a city where there are all kinds od disability advocacy groups. Some are quite good and even have employment law referrals.

Finally, if you think this Doctor really, really misled you, you do have the option of making a disciplinary complaint to the Department of Professional Regulation. If I were in your shoes, I believe I'd leave that alone and just find a teaching hospital who would support my family leave and has lots of residents running around who are available to fill out my papers 24/7/365.

Good luck. Someone close to me fights a corneal disease, so I really would like to hear about your medical progress. You can email me at dacamara@adams.net

Anthony B. Cameron
Quincy, IL

posted Jun 24, 2006 4:24 PM [EST]

Answer to Salary vs. Hourly

EMPLOYER'S POSITION IS UNTENABLE

First, you position must be analyzed to see whether you meet the specialization, responsibility or supervision elements of an exempt employee. If you don't, then your employer has a problem for having declared you one.

Being salaried a little like being pregnant, you either are or you aren't. If you are salaried, you are to be paid on the down days. It's what makes you different from a wage earner.

This glitch is just going to keep repeating itself so there is no sense waiting for it to run into real money.

You could just file a complaint with the Illinois department of Labor (they are very helpful) but I think you're better off finding a lawyer with a knowledge of employment law to send them a wakeup letter. If they retaliate against you in any way, that is a separate action.

Let's play this out. Their only defense is that you shouldn't have been salaried. That means they owe you some overtime for the last few months. They're not likely to take that approach. They make take the naive approach and say you're salaried BY THE DAY. That dog won't hunt. You will almost certainly win your claim but I think you should first try to resolve it with private counsel. Unless this company's attorney is utterly unfamiliar with employment law, they will relent and there will be no residual bad feelings.

I don't know where Earlville is or I could probably point you to an experienced employemnt lawyer.

Best of Luck,

Anthony B. Cameron
Quincy, IL

posted Jun 24, 2006 4:13 PM [EST]

Answer to Does

Hotly litigated and fact-dependent

The true answer to your question depends on the unique pattern of your trade or profession.

Large employers have gathered stats that show grossly overqualified people don't stay in their entry level positions. So, in general, there is a rational basis for the refusal to hire in certain labor grades or job classifications based upon excessive qualifications. It's not just so fatuous as to be false on its face.

On the other hand, you're correct: "Too qualified" is often code for "too old".

Things a finder of fact would consider would be to the extent of your overqualification (Nuclear Physicist working at a convenience store would probably be a righteous refusal. Convenience Store former manager refused a clerk's job at another C-Store, I'd look for another reason); The nature of your industry (Foreman of welders for ten years is a long time not to have held a modern welding torch.), How much over forty you really are (every lawyer will tell you that 70 is the same as 41 and the difference doesn't matter--it does. It establishes the atmospheric condition of your case.); Salary expectations in your old and new jobs; The type of leadership you would have in the job (Many employers believe the overqualified hire can highjack the supervisor's role by becoming sort of the "Alpha Male" in the work place.); and the custom and practice in the industry for job changing (stable for, say, heavy equipment sales, unstable for Realtors and taxi drivers). These are just a few of the fact-specific considerations.

If your application was sufficient on its face and you were truly told you were overqualified, contact the Illinois Human Rights Department and fill out the complainant's questionaire. The Dept. will do some initial screening, and if they conclude you have an open question of Age Discrim, they'll file and investigate a the complaint for you.

The upside is there is no fee. The downside is you don't get to see the Employer's detailed responses. You will have to prepared to go into a lot of detail.

You question is extremely topical. As out population ages, there is going to be more and more appellate court litigation on this. In ten years, we'll have a pretty good list the factors that courts and HRCs can consider. Right now, the law is still developing in this one area.

Good Luck and don't waste any time. You only have 180 days to file an HRC complaint from the date you first knew/believed you were being discriminated against.

Anthony B. Cameron
Quincy

posted Jan 12, 2006 5:54 PM [EST]

Answer to EEOC Investigation Appeal Review

The way you have posed this question

The answer is about a thousand page treatise.

I know no useful way to answer it except to ask for the missing vital information.

Grounds for dismissal

Letter accompanied by a "Right to Sue" letter

did the case begin as a Chicago HRC case or an IDHR complaint or was the original filing?

Is any part of this outcome the result of a failure by either side to provide information or cooperate?

In any case, I'm guessing you have a serious timeline to do one of several things quickly here, so don't delay following up.

Anthony B. Cameron
Quincy



posted Dec 25, 2005 10:58 AM [EST]

Answer to Severance release signed, but no payment has been sent.

Variables

The general rule is that any earned pay is to paid NLT the pay period following your departure. Here, the negotiation appeared to follow your departure and I don't know when your pay periods are.

Also, it is lawful and proper for the agreement to contain a seven day cooling off period (another delay) if you are over forty.

If we assume your pay periods were the first and 15th, just for an example and you signed the agreement on the 16th of December, it's not late until the 16th of January.

Also be aware your severance can impact when you can start drawing IDES, if that is an issue for you.

If you'd like to provide more specifics, I can give a more precise answer.

Anthony B. Cameron
Quincy

posted Dec 25, 2005 10:44 AM [EST]

Answer to Soliciting business from clients

From 300 miles away and with nothing to gain...

...I'm telling you not to be penny wise and pound foolish.

No responsible lawyer is going to give you the go ahead to anything like what you're suggesting without interviewing you concerning the circumstances of your company's engagement and reviewing the agreement microscopically.

Here are some issues for you to be thinking about however:

1. What did you get or what did they give in exchange for that language?

2. How does the agreement define "contractor?" Is it you or is it the LLC?

3. What other possible breaches of this agreement might you be committing if you took full time employment or, to put it another way, what is the "out" language in your agreement?

4. What, other than losing your contractual services, is the harm to the New Jersey Co. if you take this step?

5. Are their trade secret, recipe and customer list issues?

6. What is the custom and practice in your industry?

7. Has this company allowed similar contractors to do what you're considering (it sounds like it from some of your language.)?

8. Sometimes there's a legitimate "Who Started It?" issue where "contact" means literally "initiate contact with..." I'm familiar with one industry where it's always OK to passively receive job inquiries but not OK to send out resumes to customers or competitiors.

These are just a warm-up. Please spend a few dollars and see a MEL lawyer in Chicagoland. I can tell you from 32 years of experience, the best money an employee with a non-compete, non-contact can spend is a sit-down with a good employment lawyer for an interpretation of the actual agreement and the mutual devising of a strategy. At the end of the day, the most expensive thing you can do --in money and heartache--is go ahead and merely hope for the best.

You seem like a very bright person. Please do what bright, successful people do and mitigate your risk.

Best to you and Happy Holidays

Anthony B. Cameron
Quincy

posted Dec 13, 2005 2:48 PM [EST]

Answer to Filing Law Suit

The answer to your question drips with irony

The legislative history of the Act indicates that the opponents of such seemingly (to them) broad plaintiffs' rights, seeing they couldn't kill passage, tried to limit the impact of the act.

The argument for the 90 day window was that employers had to plan their affairs around liability considerations so the short window following the long investigation allowed employers to know whether they were facing liability or not.

The funny, ironic thing is that the way the Regs and Practice have developed, the employer doesn't know when the 90 day Right to Sue letter has gone out, thus doesn't know when his liability is terminated.

The employer does get a copy of the finding but, in some cases the 90 day letter might not go out for a year after the finding.

Now, in my own view, the practical purpose for the 90 day window is really to give the plaintiff scant time to scare up funds to engage a lawyer. Many people get all the way through the process of the EEOC or their own State or City's HRC, get a positive finding and then fail to get counsel out of lack of funds or lack of sophistication.

So, the historical reason is the management of liability issues by employers. At least one practical result, in my view, is to bring about the abandoment of some viable claims.

Anthony B. Cameron
Quincy

posted Dec 3, 2005 3:26 PM [EST]