Answers Posted By Matthew Hill

Answer to FMLA-Discrimination/HArassment

Document FMLA Threats

The timing of your employer's request to evaluate you is very suspicious, especially in light of the other comments that have been made. The statement that accepting the evaluation will make you a "team player" implies both that the evaluation will be a poor one and that the company may take some action on the basis of the evaluation. Paired with the comment that your leave puts the bank in a tight spot, the comment (if made by someone with decision-making authority) could constitute direct evidence of FMLA retaliation if the bank takes some adverse action against you as a result of the evaluation.

A few thoughts:

1) Because you are already out on FMLA leave, the bank has presumably already approved the leave and made the decision not to designate you a "key employee." Thus, the "tight spot" your employer has been placed in is irrelevant.

2) You will want to be careful that the total number of days of work you miss related to the birth of your daughter (including before the birth) does not exceed twelve weeks. Otherwise, the bank may argue that you have exceeded your leave and terminate you.

3) I have advised clients who have come to me at the stage you are at now to record relevant conversations. Only do this if the recordings take place in a state where this is permissible (including Texas). Also, it may be worthwhile to review your handbook to determine whether it prohibits recording conversations at work. While such recordings may still be permissible, such a policy creates subsantially greater risk.

4) The risk in not participating in the evaluation is potentially greater than that of participating. If you do participate and there are negative consequences, you could potentially have a right to redress what is done to you. If you do not participate, the bank may accuse you of insubordination.

5) What you choose to do somewhat depends upon your goals. If you see your future with the bank, perhaps you should take the most diplomatic road possible and ignore some of the bank's offensive comments and behavior. If the bank's behavior has so offended you that you no longer have an interest in working there, or if you are otherwise dissatisfied and hoping to move on, you may be best served by gathering evidence for a retaliation claim to either use as leverage in severance negotiations or to pursue a claim in court.

6) Overall, you could probably benefit from speaking with an employment attorney who can talk with you about all the details of your situation and work with you to develop a plan of action that will help you best accomplish your goals. The thoughts I have here are only general ones, and any specific action plan should be individually tailored to the details of your situation.

Matt Hill

posted May 13, 2005 7:09 PM [EST]

Answer to unfair wage docking

Docking pay of non-exempt employees

An employer may dock an exempt employee's wages for mistakes as long as the employee's weekly wages are greater than what he would earn if paid the minimum wage for all hours worked during that week. Thus, if an employee was making $6 per hour and faced the $2 per hour week-long deduction you describe, this would be illegal.

Where docking pay is crucial is for exempt employees. If an employer docks the pay of an exempt employee, that employee is forever considered not to be paid on a "salary basis" (unless the employer goes back and corrects its mistake while jumping through a couple of hoops). This results in that employee becoming non-exempt. The employee, and possibly all other employees in similar positions, become entitled to overtime from that point forward, even if their duties would result in their being classified as exempt.

Unfortunately, there is no such penalty possible for employees already entitled to overtime, though.

posted Mar 23, 2005 7:14 PM [EST]

Answer to Resignation

Two weeks notice refused

Assuming you actually stopped working on 9/18/04, your employer is not obligated to pay you beyond that date. Simply offering your employer two weeks notice before your resignation does not entitle you to two more weeks of employment. The employer must only pay you for the days you actually worked.

With respect to the vacation time, whether you are entitled to receive pay for vacation days accrued will depend upon your employer's policy on vacation. Unless the employer has a policy requiring it to pay employees for accrued vacation time, it has no such obligation under Texas law.

posted Oct 11, 2004 12:21 PM [EST]

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