Answers Posted By Neil Klingshirn

Answer to Can FMLA be used one day per week to take my wife to the doctor appointments?

As long as you are eligible for FMLA coverage (your employer has over 50 employees, you worked there for a year and you worked at least 1,250 hours in the last year), the FMLA prohibits your employer from terminating your employment because you miss work to care for a spouse with a serious health condition.

Explain to your employer that it cannot count time missed from work to care for your spouse as unexcused absences. If that does not work, consider getting an employment lawyer to explain the same thing, on legal letterhead.

Once you use up your vacation, etc., your time missed will be unpaid, but the purpose of the FMLA is to allow you to care for, among others, your spouse, without losing your job.

posted May 28, 2015 08:08 AM [EST]

Answer to On Intermittent FMLA leave and written up for an absence.

I do not believe that an employer can require more information than that required by the FMLA Certification of Health Care Provider. FMLA leave is available to provide psychological support, for example, which would not necessarily involve a doctor's visit. This is a complicated area of the law, though, so definitely consult with a qualified employment lawyer before you stand on your rights and refuse to provide a doctor's note.

Also, Harold is correct in that employers can monitor the use of FMLA leave and can terminate your husband if, for example, he does not follow evenly applied call off procedures or it catches him using it for a non-approved purpose.

As a practical matter, if your husband can provide a doctor's note easily, he should do so and avoid a dispute.

posted Mar 19, 2015 09:18 AM [EST]

Answer to Wrongful termination?

Here is an article on the rights of minority shareholders in Ohio:

http://www.myemploymentlawyer.com/wiki/Rights-of-a-Minority-Shareholder-Employee-in-Ohio.htm

Your rights as a minority shareholder were probably subsumed into your right, under your employment agreement, to be discharged only for just cause. In other words, as David Neel suggests, you may have a claim for breach of contract, the breach being that you were not removed for just cause. However, I would need to review your contract and the circumstances of your removal before I could form an opinion as to the merits of such claim.

posted Mar 17, 2015 12:07 PM [EST]

Answer to I was put on bedrest the last 4 months of my pregnancy I was allowed my FMLA leave. I was out of work all together 6 months. When I returned to work I was demoted from assistant manager to just a cashier. I've been there for 8 years. Are they allowed to d

Under the FMLA, you have up to 12 weeks of job protection. Here, it appears that your leave of absence went for 24 to 26 weeks. Therefore, the FMLA will not protect your job.

posted Mar 13, 2015 07:07 AM [EST]

Answer to if i settled a discrimination lawsuit and a portion was done as wages and balance was considered the pain and suffering would I be rightfully listed as 'self employed contractor' and required to pay all taxes even the employer portion ?

I agree with Chris. It sounds like the employer checked “Box 7,” which is non-employee compensation, but should have checked Box 3. Box 7 subjects the payment to self employment taxes. Box 3 subjects it only to ordinary income taxation.

Here is an excerpt from the IRS Guidance on reporting damages awards and settlements:

Reporting of Damage Awards on Forms 1099-MISC

IRC §§ 6041 and 6051 and Treasury Regulations 1.6041-1(f) and
1.6041-2 are the operative provisions with respect to the reporting
requirements for the client receiving the settlement or award.

Box 3 of Form 1099-MISC is used to report other income that is not
reportable in one of the other boxes on the form. Generally, all
punitive damages (even if they relate to physical injury or physical
sickness), any damages for non-physical injuries or sickness,
liquidated damages received under the Age Discrimination in
Employment Act of 1967, and any other taxable damages are required to
be reported in Box 3. Generally, all compensatory damages for
non-physical injuries or sickness (for example, emotional distress)
arising from employment discrimination or defamation are reportable
in Box 3. However, if a taxpayer receives an award of back pay that
constitutes wages, it generally would be reportable on Form W-2, not
Form 1099-MISC.

Bottom line, the employer appears to have made a mistake by checking Box 7 instead of Box 3.

The employer can fix this by re-issuing a 1099 with box 3, and not 7, checked. If the employer refuses to do so, get your attorney involved, as it could constitute a breach of the settlement agreement.

posted Mar 13, 2015 07:03 AM [EST]

Answer to I put in for a request for FMLA time after I was denied workman's comp. What happens if my employer never gets back to me about the FMLA request within the 5 business days?

You need to make sure that you gave your employer adequate notice of your need for leave as soon as you could. Notice must be sufficient to enable your employer to understand that you need time off from work to care for or recover from a serious health condition. The information that you gave your employer in connection with your workers compensation claim may be sufficient, but I do not know enough about that or any other notice that you gave your employer to suggest whether it was sufficient or not.

Once an employee provides adequate notice, the employer has to provide a notice stating whether it believes that the need for leave qualifies for FMLA. If not, the employer's notice has to say why not. If so, the notice needs to tell you that you qualify for FMLA coverage, the amount of time available, and any obligations you may have for taking FMLA, like providing a certificate of health care provider.

As a general rule, an employer's failure to provide you this notice puts the employer at a greater disadvantage than the you, since the employer loses the right to require medical certification and such. As a practical matter, though, it is best to communicate clearly and, if necessary, often. You are better off getting approval of your FMLA leave by being persistent than you are getting terminated by being quiet, even if your termination is unlawful.

If your employer has call-off procedures, follow them. An employer is allowed to enforce its call off procedures even for employees who are on FMLA, and even if the employer knows that the employee will be off for an extended period of time.

Finally, you should consult with an experienced Pennsylvania employment lawyer. Every case is different, and the FMLA has procedural pitfalls, so talk to someone who can give you advice tailored to your specific situation.

posted Mar 6, 2015 2:23 PM [EST]

Answer to If a person was laid off from a job and given a packet that states they are eligible for re-hire after a year, applies for a position that is open with the company and the company says they are not hiring people who were laid off, can they be sued for tha

There is not enough information to answer your question, but I will share offer some general legal insights, based on Ohio law.

To enforce an employer's promise, the promies either needs to rise to the level of a contract, or else is a statement that the employer should have expected you to rely upon, and you did rely upon it, to your detriment. You need to consult with a New Mexico employment lawyer to find out if either of these is the case here.

The packet's statement about eligible for rehire could also become important if you are in a protected class, and the company hires someone who is not in the protected class. In that event, there is potential for discrimination, and the employer's reversal of its policy to treat you as eligible for rehire might provide support for a claim of discrimination.

posted Mar 6, 2015 12:41 PM [EST]

Answer to Do 16-17 year olds have to obtain a work permit for a very temporary job?

David is correct.

Note, though, that Section (b) of 4109 says::

(B) Minors aged sixteen or seventeen are not required to provide an age and schooling certificate as a condition of employment if they are to be employed during summer vacation months after the last day of the school term in the spring and before the first day of the school term in the fall, in nonagricultural and nonhazardous employment as defined by the "Fair Labor Standards Act of 1938," 52 Stat. 1060, 29 U.S.C.A. 201 , and similar state statutes, or in other employment not prohibited to minors age sixteen or seventeen by law.

This is current as of March 5, 2015. Always check the original source of the law to make sure it is current.

posted Mar 4, 2015 1:07 PM [EST]

Answer to My spouse had a stroke and I had to use a little over 30 days of fmla. My supervisor is now telling me I need a Dr's excuse from his Dr stating I am able to return back to work. Is this really necessary? I've been back to work for almost a month and they

This does not sound right at all.

Google 29 C.F.R. § 825.300(d)(6). This Department of Labor regulation addresses an employer's right to require a fitness for duty certification upon return to work. Note that subsection (d) does not allow a fitness for duty examination unless the employer previously gave the employee a "Designation" notice that states a fitness for duty examination will be required. Did you receive that notice?

Second, a fitness for duty examination is not required for FMLA leave taken for a family member's serious health condition. It makes no sense to require the employee who is caring for a family member to take a fitness for duty exam.

Consult with an employment lawyer if you can. If that is not possible, and your supervisor insists on an exam, contact the Department of Labor. It has the authority to investigate and enforce FMLA matters.

posted Mar 3, 2015 07:40 AM [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

If the reprimands and termination were because you took FMLA leave or had a condition requiring FMLA leave, then your termination may be unlawful.

I am licensed to practice only in Ohio, but I am interested in speaking with you if you would like. I can advise you on your federal FMLA rights, and steer you in the right direction for finding a Florida employment lawyer.

My number is 330-665-5445 ext 2 extension two

posted Feb 3, 2015 3:07 PM [EST]