Answers Posted By Harold Goldner

Answer to An employee is off due to a balance/vertigo type condition that makes him unable to drive or ride in a vehicle. He is an outside salesman and does not want to apply for FMLA but rather work from home. Short term, let's say a week I could agree, but this i

You are confusing FMLA and the ADA (but don't worry; the intersection of these two has been dogging employment practitioners and HR managers for years).

An individual is typically eligible for FMLA when due to a serious health condition, they are incapable of performing the essential functions of their job. No "accommodation" will enable them to function productively. If he can perform some, or a substantial portion of his job, just not do the driving part, then he's not FMLA eligible.

If, on the other hand, he is seeking an "accommodation" so that he can continue to do his job, albeit a week long no-driving modification, that means he's not taking FMLA, he's being 'accommodated' under the ADA, in which case he continues to work his full day/week, etc.

If he's already overtime exempt, that is, he earns a salary or a base plus commissions over ~$24,000/year, then you don't dock his pay, not for ADA. If he's taking FMLA, then that's in accordance with your company's policies. FMLA does not have to be paid, and policies can require employees (exempt and non-exempt) to use up accrued PTO, if any. You don't get to convert a salaried employee into an hourly employee and then dock pay.

I suggest that if your company has HR issues instead of trying to resolve them with questions online, you contact a reliable employment lawyer who handles employer-side issues such as this.

posted Sep 15, 2017 12:39 PM [EST]

Answer to A coworker cussed me again this is the second time this happened. And I'm done with this my boss covered for the one who cussed me he is the macanic is there anything I can do

If you are not being singled out due to your race, religion, color, sex, age (over 40) or actual or perceived mental or physical disability, you aren't being "discriminated against" in violation of any PA statute.

I can also caution you that when coworkers don't get along, one or both get fired, and courts don't get involved in "refereeing" which one was right and which one wasn't. This isn't elementary school.

If the conduct is inappropriate, report it to HR, but otherwise move on (or look for employment elsewhere).

posted May 25, 2017 6:23 PM [EST]

Answer to I reported my manager for a negative extreme change in his behavior and memory loss that resulted in major information technology risks. I was fired 8 hours after reporting him. Do I a right to sue for wrongful discharge?

There is an age-old expression, "When you shoot at the King, you better not miss." Pennsylvania is an at-will state in which you can be fired at any time for a good reason, bad reason, or no reason at all. Your boss could walk in on a random Wednesday and tell you "we've decided someone has to be fired today, and it's you" and there's not a thing you can do about it.

You *cannot* be terminated in violation of a "public policy," which PA courts have interpreted generally to mean "legislative enactment." As a result, you can't be fired usually because of your sex, race, age (over 40), religion, national origin, or perceived, actual or record of disability.

In the case you set up, you "reported" your boss to his boss. Legally, nothing wrong with that. Politically, that was perhaps a little less savvy. Generally "going out of bounds" is often why someone loses a job. It's not fair. It's not right, but it's not illegal.

posted Mar 17, 2017 4:13 PM [EST]

Answer to Sons hours cut in half employer told him if you go to unemployment you will be fired

Where the terms of employment are substantially changed (such as slashing hours by a third), the employee may have necessitous and compelling reasons for quitting the job (for example, to search for full time employment elsewhere). As such, the employee is eligible for Unemployment Compensation.

Terminating an employee for filing for unemployment compensation violates public policy, and therefore can serve as grounds for a wrongful termination claim.

Your son (not you) should contact an employment attorney to determine what, if anything, can be done to remedy his situation.

posted Jan 4, 2017 2:54 PM [EST]

Answer to does a general release need to be witnessed or notarized/ we are in Pennsylvania

No. It does not. You should make sure, however that your "general release" complies with all provisions, if appropriate, of the Older Workers Benefit Protection Act. Don't just take a general release out of a form book and use it. Missing language under some circumstances can void the release. I always urge my clients to run documents past me *before* they use them.

posted Dec 29, 2016 3:00 PM [EST]

Answer to After giving notice of two weeks and the employer terminates me immediately can he demand I bring back a company tablet within the next two days personally to an office I am not near (Im a homecare RN) . Just wonderimg what the timeframe is forreturning e

Not necessarily, but why wouldn't you? You're an employee at will; an employer is within its rights to terminate you immediately once you give notice. If you're not working the next 48 hours, what impediment precludes your returning their property? I can't imagine the cost of an employment lawyer justifying hanging on to the device, can you?

posted Dec 13, 2016 10:57 AM [EST]

Answer to was terminated from a company that I was with for 13 years. Was providing me a severance pay for 13 weeks. However there was a non-compete for 2 years could not work for another company in the same industry. Never worked for another company in same indust

You should contact an employment lawyer and sit down with that lawyer *in person* with any employment agreements and any correspondence you've received from your former employer *in hand* and that attorney can advise you what the best course of conduct is. Non-compete provisions can be enforced, even when in severance agreements, but the non-payment of the amount of the severance package may also work to invalidate the agreement. As with many things legal, the answer is "it depends," and you should not rely upon (nor expect) legal advice over the internet.

posted Mar 21, 2016 2:45 PM [EST]

Answer to Am I eligible for unemployment?

No. Voluntary quit does not entitle you to unemployment benefits. Unemployment compensation law states that persons are entitled to benefits who become unemployed "through no fault of their own".

posted Mar 1, 2016 10:42 AM [EST]

Answer to Can my old employer get me fired bc of me suing them?

If it can be shown that your former employer "got you fired" because you participated in a class action for overtime wages, that could violate the Fair Labor Standards Act, the same statute your overtime claim is based upon, although it sounds farfetched.

You should be sure, however, that you and your former coworkers hire a lawyer and firm which has already handled FLSA and wage and hour cases.

posted Feb 21, 2016 12:25 PM [EST]

Answer to Can an employer diagnose an employee with a disorder and then deny promotion on those means?

If an employee can handle all of the "essential functions" of his or her job with or without an accommodation, then that employee cannot be singled out for special treatment. Doing so would violate both the Pennsylvania Human Relations Act (if the employer has at least 4 employees) and the Americans with Disabilities Act (if the employer has at least 25 employees).

The failure to promote is equally actionable.

Your friend should consult with a Pennsylvania employment attorney to assess *all* of the facts of his or her case, because it's impossible to diagnose these situations adequately over the web, nor is an attorney permitted to "give legal advice" via the web to a non-client.

posted Nov 12, 2015 12:05 PM [EST]

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