Answers Posted By Jill J. Weinberg
I would need to know what type of work you do to see if you are exempt from overtime.Such asssessments are very fct sensitive. If you are not properly classfied as exempt(there are 2 components: how you are paid (hourly or salary) and what are your job duties) then you would have a valid claim for overtime. Only a court (or federal agnecy) can require your employer to comply with overtime laws.
Keep track of your overtime hours after you are converted to salary and then you can contact a lawyer to assess if you are owed overtime because you were misclassified.
answer to Can my employer convert all stff to Exempt to cut out our overtime? posted Dec 9, 2011 2:31 PM [EST]
Keep track of your overtime hours after you are converted to salary and then you can contact a lawyer to assess if you are owed overtime because you were misclassified.
answer to Can my employer convert all stff to Exempt to cut out our overtime? posted Dec 9, 2011 2:31 PM [EST]
There are several missing facts to your question. Did you comply with company policy about exhausting paid time off (ex. vacation pay) during FMLA? An employer in Texas can require an employee to use up such PTO simultaneously with FMLA. If there is such a policy is HR claiming you failed to follow it?
If there is no such policy, then the FMLA allows you to take unpaid FMLA leave to CARE for your child as well as recover from child birth or other related medical issues. Your caring for your child does not prevent you from traveling with your child. On the otherhand, if the child was left behind, the employer may contend you no longer needed FMLA to take care of your child and so you no longer qualified for FMLA leave (although I would not recommend an employer rely on such an argument b/c there is no requirement under FMLA that you must be with a child or other family member 24/7 to qualify for FMLA).
Did you provide a different reason for being on FMLA and the employer is contending that information is false so that is why you were terminated?
Or did the company have a layoff or eliminate your position while you were on leave? Assuming that occurred for legitimate reasons ( and not to retaliate against you for taking FMLA) then your job does not have to be held open.
Assuming no layoff, you did not violate company policies related to FMLA or misrepresent facts to your employer, and your FMLA was to both recover from child birth and care for your child (which is common but adoption is also covered) I do not see how the company can justify lawfully terminating you while on FMLA. The Federal Department of Labor is a good place to start your claim and research.
answer to within rights of FMLA posted Oct 6, 2011 12:41 PM [EST]
If there is no such policy, then the FMLA allows you to take unpaid FMLA leave to CARE for your child as well as recover from child birth or other related medical issues. Your caring for your child does not prevent you from traveling with your child. On the otherhand, if the child was left behind, the employer may contend you no longer needed FMLA to take care of your child and so you no longer qualified for FMLA leave (although I would not recommend an employer rely on such an argument b/c there is no requirement under FMLA that you must be with a child or other family member 24/7 to qualify for FMLA).
Did you provide a different reason for being on FMLA and the employer is contending that information is false so that is why you were terminated?
Or did the company have a layoff or eliminate your position while you were on leave? Assuming that occurred for legitimate reasons ( and not to retaliate against you for taking FMLA) then your job does not have to be held open.
Assuming no layoff, you did not violate company policies related to FMLA or misrepresent facts to your employer, and your FMLA was to both recover from child birth and care for your child (which is common but adoption is also covered) I do not see how the company can justify lawfully terminating you while on FMLA. The Federal Department of Labor is a good place to start your claim and research.
answer to within rights of FMLA posted Oct 6, 2011 12:41 PM [EST]
The agreement MUST be reviewed by an employment law attorney who keeps up with the constantly changing non-compete law cases. The attorney must first determine if the agreement was properly written under Texas law. Even if the correct language is in the agreement, then there must be an analysis of the specific facts surrounding your access/knowledge of confidential information (as defined in the agreement) and how the company PROTECTED such information (under lock and key? pasword protected? labled " highly confidential? etc..
If your prospective new employer wants to hire you away, is it willing to pick up your legal fees etc. if/when you get sued for alleged violation of the (assumed) valid NC? If so, have the business agree to it in writing. If not, are you willing to shell out $10,000 to $100,000 to defend yourself?
To minimize liability,learn what your options and liablities may be BEFORE you jump ship.
answer to No compete clause limitations? posted Jul 29, 2011 5:39 PM [EST]
If your prospective new employer wants to hire you away, is it willing to pick up your legal fees etc. if/when you get sued for alleged violation of the (assumed) valid NC? If so, have the business agree to it in writing. If not, are you willing to shell out $10,000 to $100,000 to defend yourself?
To minimize liability,learn what your options and liablities may be BEFORE you jump ship.
answer to No compete clause limitations? posted Jul 29, 2011 5:39 PM [EST]
A document signed by one party may be enforceable under certain circumstances (such as partial performance by the other party who did not sign). Only a Judge or jury can decide based on all the facts.
Also, sometimes a party who has signed never asks for a signed copy from the other party and that is why at first glance it looks as if only one person signed. The other party may have signed it but failed to send a fully signed copy or original to the other party.
answer to Is a non-compete agreement binding for a subcontractor if only the subcontractor signs it? posted Jun 26, 2011 1:24 PM [EST]
Also, sometimes a party who has signed never asks for a signed copy from the other party and that is why at first glance it looks as if only one person signed. The other party may have signed it but failed to send a fully signed copy or original to the other party.
answer to Is a non-compete agreement binding for a subcontractor if only the subcontractor signs it? posted Jun 26, 2011 1:24 PM [EST]
An employer can require an employee to use up FLMA leave at the same time he/she is on workers' comp if the company follows required notices to the employee regarding your FMLA rights. If the company has not done so, contact the FEDERAL Department of Labor
(www.dol.gov).
Also, a company cannot retaliate against an employee who files workers' comp. If the company treats you more harshly then others out on NON-workers comp medical leave, it may be considered retaliatory under Texas law and you should consult an attorney who handles workers comp retaliation cases ASAP.
answer to can an employer charge your fmla time if you are out on a workmen comp claim? posted Jun 26, 2011 1:18 PM [EST]
(www.dol.gov).
Also, a company cannot retaliate against an employee who files workers' comp. If the company treats you more harshly then others out on NON-workers comp medical leave, it may be considered retaliatory under Texas law and you should consult an attorney who handles workers comp retaliation cases ASAP.
answer to can an employer charge your fmla time if you are out on a workmen comp claim? posted Jun 26, 2011 1:18 PM [EST]
Employers cannot have their cake and eat it too. If an employer wants to employ an executive (i.e., a store manager) then that person must (1)perform executive duties AND (2)be paid a guaranteed salary NOT subject to deductions based on hours worked. Indeed, that is another issue in assessing if someone is properly "exempt" as an executive under the FLSA (Fair Labor Standards Act).
Even if a store manager is properly "exempt" from overtime based on his duties, then the store manager must be paid a guaranteed salary EVEN IF in some weeks the hours actually worked are less than in other weeks. EACH work week "stands alone" (the salary for each work week must be the same) even if an employee is paid every 2 weeks.
Generally, if amount of salary for each week VARIES based on ACTUAL hours worked, then the "guaranteed salary" requirement under the FLSA is not met and the exemption is lost. If the exemption is lost, then the employee has a claim to be paid for all hours actually worked EACH week over 40 hours at 1.5 his hourly rate (so if hourly rate is $10 than the overtime rate is ($15).
Generally, an employee is paid on a salary basis if he has a "guaranteed minimum" amount of money he can count on receiving for any work week in which he performs "any" work. This amount need not be the entire compensation received,(for ex., monthly bonuses can be excluded but the salary must be at least over $455 (gross) a week. If the employee was promised more $455 per week, than the HIGHER weekly salary must be paid. However, whether an employee is paid on a salary or hourly basis is fact specific and thus evaluation of particular circumstances is necessary by employment law counsel.
answer to Am i getting cheated? posted Jun 26, 2011 1:11 PM [EST]
Even if a store manager is properly "exempt" from overtime based on his duties, then the store manager must be paid a guaranteed salary EVEN IF in some weeks the hours actually worked are less than in other weeks. EACH work week "stands alone" (the salary for each work week must be the same) even if an employee is paid every 2 weeks.
Generally, if amount of salary for each week VARIES based on ACTUAL hours worked, then the "guaranteed salary" requirement under the FLSA is not met and the exemption is lost. If the exemption is lost, then the employee has a claim to be paid for all hours actually worked EACH week over 40 hours at 1.5 his hourly rate (so if hourly rate is $10 than the overtime rate is ($15).
Generally, an employee is paid on a salary basis if he has a "guaranteed minimum" amount of money he can count on receiving for any work week in which he performs "any" work. This amount need not be the entire compensation received,(for ex., monthly bonuses can be excluded but the salary must be at least over $455 (gross) a week. If the employee was promised more $455 per week, than the HIGHER weekly salary must be paid. However, whether an employee is paid on a salary or hourly basis is fact specific and thus evaluation of particular circumstances is necessary by employment law counsel.
answer to Am i getting cheated? posted Jun 26, 2011 1:11 PM [EST]
The Texas Pay Day law allows you to file an administrative claim for unpaid wages (including vacation pay) with the Texas Workforce Commission
(same agency taht handles unemployment claims. You can file such a claim even if you do not have possession of the written policy. However you must file as soon as possible to be within the 180 days deadline for filing.Theyou may process is designed so that you can file without needing a lawyer
(although at some point you may wish to retain one).
answer to Can an employer take away your earned vacation time when you get fired? posted Jun 21, 2011 07:30 AM [EST]
(same agency taht handles unemployment claims. You can file such a claim even if you do not have possession of the written policy. However you must file as soon as possible to be within the 180 days deadline for filing.Theyou may process is designed so that you can file without needing a lawyer
(although at some point you may wish to retain one).
answer to Can an employer take away your earned vacation time when you get fired? posted Jun 21, 2011 07:30 AM [EST]
An attorney would need to review the agreement you signed to properly answer whether your NC is valid. In Texas a properly written NC can be enforced by a court or arbitrator. But the one you signed may not meet all the requirements.
answer to Is a non compete valid in my particular case as a contracted financial rep in Texas? posted Jun 7, 2011 4:02 PM [EST]
answer to Is a non compete valid in my particular case as a contracted financial rep in Texas? posted Jun 7, 2011 4:02 PM [EST]
Yes if you can show you quit your job for a good well-documented work-related or medical reason. You should be prepared to present evidence that you tried to correct the problem before you quit.
answer to I resigned my position am I entitled to unemployment compensation. posted May 9, 2011 4:26 PM [EST]
answer to I resigned my position am I entitled to unemployment compensation. posted May 9, 2011 4:26 PM [EST]
First, have you had a lawyer review the non-compete (NC) yet? That must be done before proper advice can be given on it.
Second, you can't force any employer to give you a raise without a contractual obligation to do so. Do you have one?
Third, if you are being under appreciated and underpaid, why would you want to stay? If you have an updated resumeshowing how you turned the compnay around, you should be a catch for another company!
You can use the NC as an excuse never to leave, but that is not a reasonable understanding of the NC. You are not a slave to this unappreciative and stingy employer. Chances are you are wearing your dissappoinment on your sleeve and the company resents your demands to be properly rewarded. You can let them control your fate or you can take charge of it instead!
answer to If the current employer has "stifled" my career, not allowing for raises, growth opportunities, etc, posted Feb 16, 2011 12:41 PM [EST]
Second, you can't force any employer to give you a raise without a contractual obligation to do so. Do you have one?
Third, if you are being under appreciated and underpaid, why would you want to stay? If you have an updated resumeshowing how you turned the compnay around, you should be a catch for another company!
You can use the NC as an excuse never to leave, but that is not a reasonable understanding of the NC. You are not a slave to this unappreciative and stingy employer. Chances are you are wearing your dissappoinment on your sleeve and the company resents your demands to be properly rewarded. You can let them control your fate or you can take charge of it instead!
answer to If the current employer has "stifled" my career, not allowing for raises, growth opportunities, etc, posted Feb 16, 2011 12:41 PM [EST]
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