Answers Posted By Anthony Cameron

Answer to Confusion about overtime pay...

In more than 32 years of doing this....

...I've never seen this one!

Setting the pay issue aside for a minute, the mandatory overtime is probably lawful, so long as you are off one day out of every seven. You don't state what your specific industry is. There are certain regulated industries where that much mandatory OT would not be lawful.

The goofy negative incentive to work overtime would not be lawful if you are properly a non-exempt worker. Just because somebody slaps a title on you doesn't mean you are automatically exempt. Exemption as management turns on your actual duties, the existence of written job description, how much discretion you exercise and the custom and practice in your industry.

Frankly, unless you got something like a 20% raise with your "promotion", this pay scheme doesn't pass an initial smell test. You basically have four choices:

1. Quietly find another job;

2. Continue in this one and accept this curious scheme;

3. Take as much detailed data as you can assemble about your job and your industry to a skilled employment lawyer in the Chicago area (preferably a MEL panelist);

4. Take the exemption issue and OT issue to the Illinois Department of Labor;

I like number three because you can do it without the employer knowing you are checking on their behavior. After an attorney sees the whole picture, he or she can advise from there. You have control over how far you want to take this. If IDOL gets it, they decide how far to take it.

Our office is 300 miles from you, so we are probably not a viable option.

Good Luck!

Anthony B. Cameron
Quincy

posted Nov 30, 2005 10:05 AM [EST]

Answer to Demotion

Without intending to be cold....

....I must first tell you that private employers in Illinois really don't have any legal obligation to avoid acting "unfairly". There is no real concept of "fairness" or "equity" in the our state's workplace law, only minimum compliance with statutory standards.

Worse, the general rule in Illinois is that there is no action for "wrongful demotion."

Finally, I peeked at your email address and it looks like a work email. You should understand that your employer probably has and probably uses a monitoring system (incoming and outgoing)and that is perfectly lawful. You have no expectation of privacy in a proprietary employer email system, even if it is connected to the internet, as opposed to an intranet.

Under the Illinois Human Rights Act and the various U.S. Civil Rights titles you might still have an action depending upon your age, sex, religion, marital status, military discharge and handicap. You may also have preserved an action if you have opposed discrimination in the workplace and maybe if you have engaged in certain kinds of whistleblowing (although, again, retaliatory demotion is disfavored under state law, so the reported misconduct would almost have to violation of a Federal Statute.)

It is impossible to tell your age from your answer but what has occurred in your situation is a pattern we sometimes see with workers over 40 (especially in certain pension schemes)to "run them off."

If you want to place a more detailed answer, I'll check back for it later. In the meantime, if you do nothing else, keep a daily journal of your experiences and conversation in the work place. Record things that happen as comtemporaneously as you can. At a minimum write them the same day they happen. That way, you will at least have an accurate record of how things unfolded over time. Clients, for reasons I've never understood, resist or simply stop keeping these journals and almost always regret that inattention. I can't tell you how many people come in terminated a couple of years after first consulting me and say "Well I stopped keeping my journal because things were going better."

Two other issues come to mind. Who replaced you? Younger, different gender, non-handicap? Is there a separate (better) bonus pool for management than for rank and file?

I'm sorry this has darkened your holidays. I can't be much more help to you without more specifics.

Anthony B. Cameron
Quincy

posted Nov 27, 2005 6:44 PM [EST]

Answer to Extending Time-bared Filing Period

Vague and General Propositions like this...

...make for unreliable answers. There is almost no way to responsibly answer this question because theories "extending" filing deadlines are fact-dependent.

Some theories are concealment of the discrimination by the employer and a temporary disability suffered by the claimant. Remember, the time only starts to run when the claimant becomes aware of the discrimination.

If you would like to state the question in more concrete terms, I'd be glad to look in on this board next week and try to give you a general answer.

Anthony B. Cameron

posted Nov 25, 2005 5:01 PM [EST]

Answer to Retaliatory Discharge: Effective Notice

When Protected Activity Occurred

The issue is not when the E/er knew of you complaint form or when they got the complaints from the various EEO agencies. It is when did they know you were "Opposing Discrimination?"

I see no notice problem here. You could create a problem for yourself if you do not timely file another complaint with the various EEO agencies about the term for opposing discrimination. It is not unusual that the underlying case doesn't win but the retaliation for bringing it up does.

This could get a little intricate. I can't imagine you will have a lot of trouble engaging a skilled employee rights lawyer. Find a MEL member in your area at your early convenience. You will be glad you did.

Anthony B. Cameron
Quincy

posted Nov 25, 2005 4:51 PM [EST]

Answer to Non-Compete - Same Industry, different location/customer base

Spend a few dollars...

...and show the agreement to an empoyment lawyer in your area. It looks to me like you have some advantages. First, your current employer seems to be short of funds. They would have to pay a lawyer to pursue the non-compete. Second, you appear to be in the Second Appellate District of Illinois where the severing employee doesn't do badly.

As I've said in this forum before, the worst strategy is usually just to go ahead and make the change, hoping you don't get sued. Sometimes your lawyer can write the original employer and simply explain why the new job isn't a violation and that will put it to rest.

Get an opinion and a strategy from someone who has the agreement in front of them and has time to hear your version of the old job vs. the new job.

Good Luck!

Anthony B. Cameron
Quincy

posted Nov 13, 2005 7:34 PM [EST]

Answer to Overpaid After Quitting

Let's Fix ...

....This before it gets any worse.

In strictest legal terms, this money never becomes yours.

Whether written or verbal, you worked for this employer on a "contract of hire". An essential element of a "Contract of Hire" is that you do the work more or less as agreed and the employer pays you more or less as agreed.

When you stopped doing the work, no matter the form of your resignation, and the employer paid you any earned time it owed you, the relationship was done. If payroll continued to forward checks to your account, the law does not treat that as a windfall to you. It treats it as "unjust enrichment" and the employer can file a suit in equity to recover the o'payment.

According to the banking rules and the regs of the IDOL, the bank cannot go back into your bank account and reverse the transactions. There are any number of bankers out there who will let them do it anyway.

I recommend you go to your bank tomorrow morning and cancel the direct deposit authorization. Withdraw the excess deposited and place it in some other account that bears interest. Notify your employer that they have o'payed you but that you now have a negative tax impact because of the o'payment and you would like to give them back fifty cents on the dollar and sign releases to call it square.

If you don't do this and you spend the money, someday you will get a summons for the funds and the employer will probably prevail. It is a Rule of the World that you will get the summons at the most inconvenient, stressful possible time. For your own sake, don't try to claim ownership of the money. In the end you will be inconvenienced and probably spend some avoidable attorney fees. Is this worth sitting around for five years or so, waiting for the other shoe to drop?

Think of this as a headache and not a windfall, and you will be happier with the outcome over the long haul, I guarantee you.

Anthony B. Cameron

posted Nov 13, 2005 7:12 PM [EST]

Answer to Supervisors employing off duty staff

Run, Do not Walk....

...To your park district attorney with this problem.

The liability issue is in about third place for me. First, depending on the nature of the pay for this "private" work, there may be violations of the Illinois Gift Ban Act. Next, it is impossible to argue that this doesn't raise simple conflict of interest issues, when the policy-makers have side agreements with the Unit's employees. Then there is the obvious liability issue. Moreover, these situations almost aways have "use of public property" questions attached to them (Usually tractors and trucks but it can be as small as shovels or folding chairs).

Tell your lawyer and ask him to draw up a resolution prohibiting dealing by commissioners with PB employees (or at least full time employees.). If your resolution is voted down, talking to the Illinois Attorney General's Office is an option, but, in my opinion, the last option.

Anthony B. Cameron
Quincy, IL

posted Nov 13, 2005 6:55 PM [EST]

Answer to Unfair mandatory overtime

Probably Yes...

Generally speaking, the conditions of employment can be established by the employer and, as long as they don't violate the Wage and Hour Standards of the Ill. and U.S. DOL's, the employer does not have to treat the shifts the same and does not even have to have a rational basis for treating them differently.

Two things to watch for here that might give you a little edge:

1. Make sure they are calculating your OT pay correctly. IDOL just promulgated new regs for calculation of OT, so make sure your employer's software has caught up to the law.

2. You do have a little squawk if your mandatory OT is spontaneous. If it is scheduled more than a day in advance,then it is just "conditions of employment."

Except in healthcare, most employers eventually figure out that mandatory OT is a bad deal for them over the long haul and eventually add people.

Good Luck and be extra safe on those extended shifts.

Anthony B. Cameron
Quincy

posted Nov 13, 2005 6:33 PM [EST]

Answer to Discrimination because of ADHD and # of Children?

Layoff vs. Separation

You are obviously stressed and I don't blame you.

You present a lot of issues but the starting point is are you terminated or are you laid off? One doesn't usually see severance packages with a layoff.

So let's start there. First, what is your status? Second, and while we're at it, how many people does your employer employ in Illinois and overall?

If you will provide me that Info, I'll take a shot at your other, fascinating issues.

Anthony B. Cameron
Quincy

posted Jul 5, 2005 2:45 PM [EST]

Answer to Discrimination for a disability

Depression as a Disability/Resignation Makes Case Tougher

Your question is a little short on facts but I can tell you that Depression is a cognizable disability.

The fact that you resigned makes your case much harder. In effect you have to prove no reasonable person could have tolerated your treatment and that it was tantamount to a termination.

You can make an IDHR or EEOC complaint yourself. Perhaps your best bet here is to see if there's a mental health advocacy or disability-advocacy group in your area. Some of those folks are good at talking a claimant through the complaint process. They might be able to help you locate a lawyer experienced with mental health discrim. claims.

Anthony B. Cameron
Quincy

posted Jun 1, 2005 10:50 AM [EST]