V Jonas Urba
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Answers Posted By V Jonas Urba
Answer to boss told me the comp can let me go w/ bonus & severance now she seems to be avoiding the option.
Do you potentially qualify as a whistleblower?If so do not post any details or make public.
You will need to retain legal counsel.
No company is required to offer anyone a severance package - unless you are a union member and the CBA requires it.
If you resign it's unlikely that you will recover unemployment benefits without good cause. That definition requires specific and detailed facts.
Schedule a consultation with a labor and employment lawyer to help you keep your best interests as the top priority.
posted Mar 31, 2016 07:09 AM [EST]
Answer to RE: Asked 3 questions and no responses for months. Anyone out there?
Semi emergent leave?Was this the first time that you took leave to care for your autistic son? Autism is not a spontaneous condition. It's usually serious and usually qualifies under the FMLA. Such conditions usually necessitate some advance notice to your employer.
The FMLA protects employees but the notice requirements under the FMLA also protect the operational needs of employers. If it's not emergency medical care it may not qualify.
It would be pretty unusual for an employer with 50 or more employees not to provide any employee, who may potentially qualify to care for a family member as permitted under the FMLA, with medical certification forms. You may have described a non-qualifying reason for taking leave and the employer accepted the risk of not providing you with a form.
Did your employer inform you that the reason for your leave was non-qualifying and you "took leave anyway"? If your reason has not been medically certified for an entire day off work were you in fact fired? Being denied unemployment benefits might confirm that you voluntarily separated from your job? Did you timely fight for and receive such benefits?
Assuming you won your unemployment hearing you probably introduced medical records associated with your son's "semi emergent" medical care or treatment on the day you took off. Hopefully you provided these records to your employer at the time that it informed you that you no longer had a job.
Some reasons that other lawyers have not responded to your inquiry might be because we have no knowledge of your prior attendance record at work, whether you had a history of inconsistent leave requests, whether your employer received reliable information from another employee or outside source casting doubt on your prior leave requests, or whether your had suspicious patterns of absences?
We do not know why it was necessary for you to take the entire day off unless your son was hospitalized. Even if you obtained an after-acquired doctor's note will a second or third medical opinion confirm that it was necessary for you to be with your son for the entire day?
Both you and your employer took risks. Another reason why no attorney has responded to your prior posts might be because "potentially FMLA qualifying" does not exist. You either have medical records which excuse you from being at work for the entire day, which you shared with your prior employer either before or at the time they fired you, or you don't. The medical records with implied certification will either hold up to second and third medical opinions or they will not.
posted Mar 25, 2016 2:28 PM [EST]
It sounds like you may be confusing an ADA AA reasonable accommodation (i.e. only working a single shift) with FMLA leave. Those are generally separate matters unless you suffer with a disabling condition which requires unforeseeable medical treatment or attention.
Here is what the United States Department of Labor states about notice under the FMLA. If your employer knew or should have known that you are unable to work an additional shift then you are not taking FMLA. Under those circumstances your employer would be providing you with a reasonable accommodation of limiting the number of hours you work at any given time. Of course, if you engaged in the interactive process with your employer, and you and your employer reached such an agreement, then your employer would have scheduled some other person to work the extra hours, so long as that was not an undue hardship on your employer, which they asked you to work.
According to the U.S. DOL you are required to comply as follows:
FORESEEABLE LEAVE:
In general, the employee must give the employer at least 30 days advance notice of the need to take FMLA leave when he or she knows about the need for the leave in advance and it is possible and practical to do so. For example, if the employee is scheduled for surgery in two months, the need for leave is foreseeable and at least 30 days advance notice is required. If 30 days advance notice is not possible because the situation has changed or the employee does not know exactly when leave will be required, the employee must provide notice
of the need for leave as soon as possible and practical. When the employee has no reasonable excuse for not providing at least 30 days advance notice, the employer may delay the FMLA leave until 30 days after the date notice is provided.
When the employee could not have provided 30 days advance notice, but has no reasonable excuse for not providing a shorter period of advance notice, the employer may delay the FMLA leave by whatever amount of time that the employee delayed in notifying the employer. In the case of FMLA leave for a qualifying exigency, the employee must give notice of the need for such leave as soon as possible and practical, regardless of how far in advance the leave is needed. For planned medical treatment, the employee must consult with the employer and try to schedule the appointment at a time that minimizes the disruption to the employer. The employee should consult with the employer prior to scheduling the treatment in order to arrange a schedule that best suits the needs of both the
employee and employer. Of course, any schedule of treatment is subject to the approval of the treating health care provider.
LEAVE THAT IS UNFORESEEABLE:
When the need for leave is unexpected, the employee must provide notice to the employer as soon as possible and practical. It should generally be practicable for the employee to provide notice of leave that is unforeseeable within the time required by the employer’s usual and customary notice requirements. For example, if the employee’s child has a severe asthma attack and the employee takes the child to the emergency room, the employee is not required to leave the child to report the absence while the child is receiving
emergency treatment. When the employee does not give timely notice of unforeseeable leave and does not have a reasonable excuse, the employer may delay or deny the FMLA leave. The extent of an employer’s ability to delay FMLA coverage for leave depends on the facts of the particular case. For example, if it was possible for the employee to give notice of the need for leave the same day it was needed, but instead gave notice two days after the leave began, then the employer may delay FMLA coverage of the leave by two days.
posted Mar 25, 2016 10:55 AM [EST]
Here is what the United States Department of Labor states about notice under the FMLA. If your employer knew or should have known that you are unable to work an additional shift then you are not taking FMLA. Under those circumstances your employer would be providing you with a reasonable accommodation of limiting the number of hours you work at any given time. Of course, if you engaged in the interactive process with your employer, and you and your employer reached such an agreement, then your employer would have scheduled some other person to work the extra hours, so long as that was not an undue hardship on your employer, which they asked you to work.
According to the U.S. DOL you are required to comply as follows:
FORESEEABLE LEAVE:
In general, the employee must give the employer at least 30 days advance notice of the need to take FMLA leave when he or she knows about the need for the leave in advance and it is possible and practical to do so. For example, if the employee is scheduled for surgery in two months, the need for leave is foreseeable and at least 30 days advance notice is required. If 30 days advance notice is not possible because the situation has changed or the employee does not know exactly when leave will be required, the employee must provide notice
of the need for leave as soon as possible and practical. When the employee has no reasonable excuse for not providing at least 30 days advance notice, the employer may delay the FMLA leave until 30 days after the date notice is provided.
When the employee could not have provided 30 days advance notice, but has no reasonable excuse for not providing a shorter period of advance notice, the employer may delay the FMLA leave by whatever amount of time that the employee delayed in notifying the employer. In the case of FMLA leave for a qualifying exigency, the employee must give notice of the need for such leave as soon as possible and practical, regardless of how far in advance the leave is needed. For planned medical treatment, the employee must consult with the employer and try to schedule the appointment at a time that minimizes the disruption to the employer. The employee should consult with the employer prior to scheduling the treatment in order to arrange a schedule that best suits the needs of both the
employee and employer. Of course, any schedule of treatment is subject to the approval of the treating health care provider.
LEAVE THAT IS UNFORESEEABLE:
When the need for leave is unexpected, the employee must provide notice to the employer as soon as possible and practical. It should generally be practicable for the employee to provide notice of leave that is unforeseeable within the time required by the employer’s usual and customary notice requirements. For example, if the employee’s child has a severe asthma attack and the employee takes the child to the emergency room, the employee is not required to leave the child to report the absence while the child is receiving
emergency treatment. When the employee does not give timely notice of unforeseeable leave and does not have a reasonable excuse, the employer may delay or deny the FMLA leave. The extent of an employer’s ability to delay FMLA coverage for leave depends on the facts of the particular case. For example, if it was possible for the employee to give notice of the need for leave the same day it was needed, but instead gave notice two days after the leave began, then the employer may delay FMLA coverage of the leave by two days.
posted Mar 25, 2016 10:55 AM [EST]
Answer to in new how soon after being terminated must I receive my accrued vacation pay
I think you have the reverse. You want more than 30 days to pass before you are paid or unemployment will be delayed.As long as you did not commit misconduct you should receive unemployment. However if you get paid a lump sum within 30 days of your last worked day then unemployment benefits may be delayed.
posted Mar 21, 2016 3:48 PM [EST]
Answer to i have a small company...3 employees total.
If the new mother is a New York City resident she is protected by the Pregnant Workers Fairness Act and the New York City Human Rights Law. These laws cover employers with four or more full time employees and you should consult with a labor and employment lawyer to determine whether there is any possibility that your business might be covered. Not doing so could be costly.Furthermore, the New York State Human Rights Law was amended on January 19, 2016 to cover all employers and their employees, regardless of size, for discrimination based on gender or sex and now permits prevailing attorneys to recover their fees when successful. Also, if the employee has a "pregnancy related" condition then she is temporarily disabled under the State Human Rights Law.
In addition, caution is advised because lactating mothers are covered under the Patient Protection and Affordable Care Act which amended Section 7 of the Fair Labor Standards Act. This allows break time for nursing mothers. Employees are permitted reasonable time to express breast milk, in private, at work and not in a bathroom for one year after a child's birth.
Your employee sounds like a low-wage worker who was paid leave as part of your company's benefits package. If you truly need to replace her do so methodically. Your best option would be to consult with a labor and employment attorney in an effort to avert a potentially costly mistake. All employment law cases are based on specific facts which require careful analysis and evaluation. Unfortunately there is no canned or boxed answer to fit your facts.
posted Mar 16, 2016 08:14 AM [EST]
Answer to Can a company alter the terms of a 90 day without cause termination agreement?
Interesting. A lawyer needs to review your entire contract.Every employee has a duty to mitigate damages. Being offered or refusing to accept another position, depending on the terms and conditions of the new job, might be breaching your duty to mitigate. However, you do not need to accept any new and unknown position without details and you certainly would demand a contract with the new employer as you entered with this employer. Those specific facts need to be analyzed. The type of work, position, etc....
If you lived in metro NYC then a 1.5 hour commute each way might be reasonable. Your location could change everything again depending on specific facts.
A lawyer needs to review and evaluate what you left, why you moved, what you were promised, what the employer planned to gain, whether it got what it hoped to get by your move. what you do, and what your damages could reasonably be?
You need to consult with a labor and employment lawyer. You may be able to do so long distance with scanned documents and email. Florida's public policy and employment laws are nothing like New York's and many things an employer might get away with in Florida would be prohibited in New York. I used to practice there and am fortunate to limit my practice now to New York. Good luck.
posted Mar 14, 2016 3:36 PM [EST]
Here is what the New York State Department of Labor says about commissions due to commissioned sales persons. If you are owed monies and the DOL can not help you then, depending on the amount in controversy, and the language of your agreement, you may have to pursue litigation. Consult with a labor and employment lawyer if you need to do so.
"Payment of Commissions Frequently Asked Questions (FAQ). Article 6 of the New York State Labor Law sets forth various requirements relating to the
payment of wages to individuals who work on a commission basis.
Commissions: A commission is compensation based on a percentage of or some other amount based upon a salesperson’s orders or sales.
Commission Salespersons: Under the Labor Law, a commissioned salesperson is an employee whose principal activity includes sales and who is paid, in whole or part, on a commission basis.
The Labor Law excludes employees whose principal activity is of a supervisory, managerial, executive, or administrative nature.
Written Agreement: The Labor Law requires that a commission salesperson’s pay/employment agreement must be in writing and signed by both the employer and the salesperson. It must contain:
A description of how wages, salary, drawing accounts, commissions, and all other
monies earned and payable will be calculated,
How often the employee will be paid (See Frequency of Pay FAQs),
The frequency of reconciliation (if the agreement provides for a revocable draw),
Any other details pertinent to the payment of wages, salary, drawing accounts,
commissions, and all other monies earned and payable when the employment
relationship ends.
Statement of Earnings: The employer must provide the commission salesperson, upon written request, with a statement of earnings paid or due and unpaid.
When is a commission considered to be “earned?” The commission will be considered “earned” at the time specified in the written employment agreement. If the agreement is silent on this topic, a commission is considered to be earned in accordance with the past dealings between the employer and commission salesperson. If there are no such past dealings, then a commission is considered earned when the commission salesperson produces a person ready, willing, and able to enter into a contract upon the employer’s terms.
Once a commission is “earned,” it is legally considered “wages” under the Labor Law and subject to all other provisions of the Labor Law regarding the payment of wages.
What, if any, deductions may an employer take from a commission salesperson’s
commission? Unearned Commissions (non-wages): Employers may make adjustments and/or apply charges in accordance with the applicable terms of the written employment agreement. For example, an employer may reduce an employee’s unearned commissions by any expenses incurred by the employee.
Earned Commissions (wages): Once earned, commissions are considered wages and deductions are limited to those permitted by Section 193 of the Labor Law. (See Wage Deductions FAQs).
Do any commissions have to be paid to a commission salesperson who has been terminated or left employment? All commissions earned by a commission salesperson are legally considered wages and must be paid to the salesperson even if the employment relationship with the employer has ended. If the commissions have not yet been earned, the terms of the written employment agreement –
which must include language addressing this situation – will control."
posted Mar 13, 2016 1:47 PM [EST]
"Payment of Commissions Frequently Asked Questions (FAQ). Article 6 of the New York State Labor Law sets forth various requirements relating to the
payment of wages to individuals who work on a commission basis.
Commissions: A commission is compensation based on a percentage of or some other amount based upon a salesperson’s orders or sales.
Commission Salespersons: Under the Labor Law, a commissioned salesperson is an employee whose principal activity includes sales and who is paid, in whole or part, on a commission basis.
The Labor Law excludes employees whose principal activity is of a supervisory, managerial, executive, or administrative nature.
Written Agreement: The Labor Law requires that a commission salesperson’s pay/employment agreement must be in writing and signed by both the employer and the salesperson. It must contain:
A description of how wages, salary, drawing accounts, commissions, and all other
monies earned and payable will be calculated,
How often the employee will be paid (See Frequency of Pay FAQs),
The frequency of reconciliation (if the agreement provides for a revocable draw),
Any other details pertinent to the payment of wages, salary, drawing accounts,
commissions, and all other monies earned and payable when the employment
relationship ends.
Statement of Earnings: The employer must provide the commission salesperson, upon written request, with a statement of earnings paid or due and unpaid.
When is a commission considered to be “earned?” The commission will be considered “earned” at the time specified in the written employment agreement. If the agreement is silent on this topic, a commission is considered to be earned in accordance with the past dealings between the employer and commission salesperson. If there are no such past dealings, then a commission is considered earned when the commission salesperson produces a person ready, willing, and able to enter into a contract upon the employer’s terms.
Once a commission is “earned,” it is legally considered “wages” under the Labor Law and subject to all other provisions of the Labor Law regarding the payment of wages.
What, if any, deductions may an employer take from a commission salesperson’s
commission? Unearned Commissions (non-wages): Employers may make adjustments and/or apply charges in accordance with the applicable terms of the written employment agreement. For example, an employer may reduce an employee’s unearned commissions by any expenses incurred by the employee.
Earned Commissions (wages): Once earned, commissions are considered wages and deductions are limited to those permitted by Section 193 of the Labor Law. (See Wage Deductions FAQs).
Do any commissions have to be paid to a commission salesperson who has been terminated or left employment? All commissions earned by a commission salesperson are legally considered wages and must be paid to the salesperson even if the employment relationship with the employer has ended. If the commissions have not yet been earned, the terms of the written employment agreement –
which must include language addressing this situation – will control."
posted Mar 13, 2016 1:47 PM [EST]
Most employees, including you, are "at will" employees. No union, government, or contract protections.
You have not provided any employment discrimination facts regarding your situation. Although you have done a good job for more than 4 years your position may be terminated for a good, bad, or no reason at all. Discrimination would be unlawful but I did not read that you believe that you have been discriminated nor did you mention that you have been discriminated.
Although the other boss "promised" that your schedule would not change your employer may change your schedule unless the change is motivated by or caused by discriminatory motive.
You may want to schedule a personal conference with a labor and employment lawyer. There may be facts which a skilled lawyer may discover from consulting with you which you have not shared.
Or you may decide to begin searching for a new job in confidence. When management or ownership or teams change within any business situations like the one you describe are not uncommon.
posted Mar 13, 2016 1:00 PM [EST]
You have not provided any employment discrimination facts regarding your situation. Although you have done a good job for more than 4 years your position may be terminated for a good, bad, or no reason at all. Discrimination would be unlawful but I did not read that you believe that you have been discriminated nor did you mention that you have been discriminated.
Although the other boss "promised" that your schedule would not change your employer may change your schedule unless the change is motivated by or caused by discriminatory motive.
You may want to schedule a personal conference with a labor and employment lawyer. There may be facts which a skilled lawyer may discover from consulting with you which you have not shared.
Or you may decide to begin searching for a new job in confidence. When management or ownership or teams change within any business situations like the one you describe are not uncommon.
posted Mar 13, 2016 1:00 PM [EST]
Is it medically necessary for you to have an ergonomic chair appears to be your question. What other employees use for chairs is irrelevant since you are not privy to their HIPAA protected health information or documentation. All the other employees may have bad backs but they do not need to disclose that to you.
Focus on your own situation. If you need an ergonomic chair get a doctor's note the next time you go to the walk-in clinic for a cold, flu, or to have a prescription filled, etc... Should be no big deal.
Persons who need reasonable accommodations for a medical condition do not have to regularly treat for such condition. All you need is for a physician who has either treated you in the past or currently examined you or reviewed your MRI results, etc.... to prescribe an ergonomic or other reasonable accommodation. Since you are not a doctor you may be surprised to learn that a physician prescribes or thinks of something else for you which is not what the other employees are using for their conditions.
Good luck. It's an interactive process. You ask for something, the employer responds, you reply to their response and the process goes back and forth until it is resolved or sometimes an employee who does not feel valued moves on to another employer.
posted Mar 12, 2016 6:59 PM [EST]
Focus on your own situation. If you need an ergonomic chair get a doctor's note the next time you go to the walk-in clinic for a cold, flu, or to have a prescription filled, etc... Should be no big deal.
Persons who need reasonable accommodations for a medical condition do not have to regularly treat for such condition. All you need is for a physician who has either treated you in the past or currently examined you or reviewed your MRI results, etc.... to prescribe an ergonomic or other reasonable accommodation. Since you are not a doctor you may be surprised to learn that a physician prescribes or thinks of something else for you which is not what the other employees are using for their conditions.
Good luck. It's an interactive process. You ask for something, the employer responds, you reply to their response and the process goes back and forth until it is resolved or sometimes an employee who does not feel valued moves on to another employer.
posted Mar 12, 2016 6:59 PM [EST]
Answer to Can an attorney negotiate a severance package if I would like to resign(from current job)?
Every employee who becomes a plaintiff in an employment discrimination charge or complaint has the burden to prove it.Burden of proof really is a burden or it would not be called that. And labor and employment lawyers like the ones on this list serve handle those cases.
Severance payments are not legally required by any law. Even when employers do offer them they can be relatively low. Sometimes only 1 week of earnings for every year of service or less.
If your employer did offer you separation or severance pay it would most likely be after a lawyer has helped you gather some of the evidence you might need for court.
If you quit or resign you may not qualify for unemployment. Each case depends on the unique facts of that case.
The facts you posted are too vague for a lawyer to suggest that you do or might have a claim or that you have no claim.
Schedule a consultation with a labor and employment lawyer to go into your particular facts in detail. It takes a lot of time to analyze just one potential client's fact scenario.
Feeling discriminated is not the same as being discriminated. Bring all of your evidence including names and contact information of witnesses, documents, and logs or writings you may have to a lawyer for review.
Employers rarely pay money without proof that what they did or continue doing is wrong. They can treat everyone badly. They can not treat a person or member of a group or class of persons badly just because the person or the group belongs to one or more protected classes. You have to prove that they are doing the latter.
posted Mar 11, 2016 1:19 PM [EST]