Answers Posted By Neil Klingshirn

Answer to Age discrimination

Equal employer contributions are not discriminatory

I believe that the answer to your question is "no." First, the employer is treating everyone the same by paying an equal amount of each employee's premium. The fact that it is an unequal portion is not discrimination by the employer, but by the insurer who sets the rates. Second, your question is probably better stated as whether this is "unlawful" discrimination. Again, the answer is "no," since insurers may lawfully charge different rates, even if the difference is based on age.

Though harsh, I believe that this is the case. Please consider this as general legal information; it is not specific advise on which you should rely. To do that, I encourage you to consult an attorney in your state.

Regards,

Neil

posted Apr 19, 2001 3:38 PM [EST]

Answer to FMLA/Stroke/termination

Here are some suggestions

First, contact an attorney in LA. I am licensed in Ohio and can only provide general information.

Turning to your FMLA claim, your employer can require you to count time covered by vacation or STD towards your 12 FMLA weeks. As for terminating you without any prior knowledge, the FMLA is loaded with notice provisions designed to prevent just that sort of surprise. Track down an FMLA attorney near you to review this situation. Be sure to bring everything that your employer provided to you.

I wish you the best during this difficult time,

Neil Klingshirn

posted Apr 19, 2001 3:31 PM [EST]

Answer to I was terminated due to the color of my skin, and the fact that I am not one of the favorites, or a

Skin color discrimination is unlawful, but you need the proof to win

Color of skin is an unlawful basis for discrimination. Historically, members of the same race (African-Americans) were pitted against each other, with lighter skinned Blacks receiving favored treatment and status. The Civil Rights Act therefore made discrimination within the same race unlawful when based on skin color.

However, Tony is right, you need proof of this to win. Call him and tell him why you believe that your skin color was the reason for your termination.

Regards,

Neil.

posted Apr 19, 2001 3:25 PM [EST]

Answer to there has been some physical attacks & verbal threats

Report the harassment to the employer and the harasser

Stand up to the harasser, who is the work-place equivalent of the school yard bully. Tell the harasser to stop and, if he or she does not, report the harassment to the employer. If the employer enables the harassment by ignoring it or worse, get out and explore your options for legal recovery.

Unless the harassment is directed at you because of your gender, race, age or other protected class status, or because you engaged in "protected conduct" (see FAQ article on retaliation), you may not have a legal right to recover your losses caused by leaving to avoid the harassment.

Regards,

Neil.

posted Apr 19, 2001 3:22 PM [EST]

Answer to Am I a victim of retaliation?

Absent some other, valid reason, it seems you suffered retaliation

Hi Judith:

Please send me a confidential email at Neil@fklaborlaw.com and describe the following:

The name of the nursing home;

The specific report of neglect that you made;

Whether you put that report and writing and, if so, to whom did you give it;

Your position at the time of your termination;

The number of years you had worked there;

The evaluation results for each year that the nursing home evaluated you;

The reason they gave you for your termination;

Whether they have fought unemployment and, if so, the grounds and the status of unemployment; and

Any other valid reason other than your report of abuse and neglect.

Absent a valid reason for your termination, your report of neglect may have triggered your termination.

Regards,

Neil.

posted Apr 12, 2001 6:41 PM [EST]

Answer to Exempt employee being paid hourly. Is this legal?

Your employer may have lost your exemption from overtime.

Hi Rory:

You ask a good question. I am not sure of the answer but will try to point you in the right direction.

Your employer appears to be claiming an exemption from paying you overtime because you are a salaried, professional employee. In any week in which you are either not paid "on a salaried basis" or are not performing "professional" duties, you are entitled to time and a half for the hours worked that week in excess of 40.

You question whether your employer lost your exempt status during any of the weeks that it docked you for "incorrect" time sheets. I think that the answer is "yes" but could not confirm that in the several minutes I devoted to checking. You can contact the U.S. Department of Labor, Wage and Hour Division and either make an informal inquiry or else file a formal complaint. The DOL will investigate on behalf of everyone affected by this practice. I can find the answer for you, but I charge $185 an hour. It would probably take me 1/2 hour to get you an accurate and complete answer.

If more than one person is affected, you can file on behalf of all of them, so long as they are "similarly situated" to you. This means anyone else being docked for incorrect time sheets.

Finally, remember that you always have the option of bringing this up with your employer. That is often the best place to start. Your employer cannot lawfully retaliate against you for questioning this.

Regards,

Neil.

posted Apr 10, 2001 8:08 PM [EST]

Answer to neneed urgent answer re FMLA , etc. before April 11, 2001, please!

ADA and Workers comp may help

First, consult a Florida attorney. Your matter is serious and you can only get legal advise from an attorney in your state.

That said, you should be eligible for workers compensation benefits if your injury happened at work or arose out of your employment. It sounds like it did. If you have not filed for workers compensation, do so immediately.

Workers compensation will provide lost wage protection, but it may not help you keep your job open. To do that, use up your FMLA time. Then, if you need more time, the Americans with Disabilities Act (ADA) might help. If you are disabled but can return to work within a defined period of time, the ADA may require your employer to provide a leave of absence.

If workers comp does not cover your lost wages while you are on leave, your short term or long term disability plans might. Ask your employer for copies of both. Review them with an attorney.

Finally, the salaried employee status probably will not help you if your employer returns you to work part time. Again, check with a Florida attorney on this.

I hope this helps.



posted Apr 10, 2001 7:47 PM [EST]

Answer to WARN Act Violation

The company appears to have avoided WARN by one layoff

WARN requires a 60 day notice for a "plant closing" or a "mass layoff." It sounds like you are describing a mass layoff.

WARN defines a mass layoff as a reduction that results in an employment loss during any 30 day period for "at least 33 percent of the emloyees (excluding part time employees) AND at least 50 employees."

131 divided by 400 equals .3275. In other words, the company appears to have deliberately avoided WARN notification by one layoff.

Technically, employers can come up to the edge of a WARN violation without triggering the notice requirement, so long as they stay outside of the mass layoff definition.

The problem for the employer with "getting cute" like this is that WARN has two technical traps. First, it covers all layoffs during any 30 day period. Therefore, find out if the company laid of anyone within 30 days before or after your layoff.

Second, buried in section 2102(d) is a rule that says employment losses for two or more groups within a 90 day period have to be counted as a single employment loss. Therefore, look 90 days forward and back. A single, additional layoff will not get you to a mass layoff, since the 90 day rule applies to two or more "groups." However, a layoff of two or more will probably put you over the top, subject to some additional issues (i.e., whether the employment losses have distinct causes).

More helpfully, if your employer is truly in financial distress, it will probably have to lay off two or more people in the next 90 days. I suggest that you keep vigilant and revisit this issue when the 90 days has run, unless the employer previously laid off another group.

Finally, you might get to your last layoff if one or more employees feel compelled to resign because they are convinced that they will be fired with little warning, as were you. This would involve a difficult argument that the resigning employee(s) were "constructively laid off." However, where an employer so obviously structures a layoff to avoid WARN as is your case, courts tend to look very hard at them.

Contact me directly if more layoffs occur and we will take the next steps. I am licensed to practice only in Ohio, but may be able to appear pro hac vice with local counsel should the case so merit it.

Regards,

Neil.

posted Apr 4, 2001 10:50 AM [EST]

Answer to Dismissed for conflict in personalities

Could "personality conflict" be a pretext for discrimination?

If your employer's reason is the real reason, then Tom is correct. The law does not provide a remedy for terminations based on personality conflict. However, your employer's reason sounds fishy. Why did he have to pry complaints from his vendors? Also, why did he fail to counsel you about this issue, especially if it was so serious that it could lead to your termination?

When your employer gives you a phony reason for your termination to cover up unlawful discrimination, the law calls it "pretext." Prove pretext (i.e., that the stated reason is phony) and you may have enough evidence of discrimination to establish a claim.

That said, evaluate how much a claim for losing your job is worth. Most employment suits cost $30K to $50K to pursue to jury verdict. Also, proving pretext is difficult. Therefore, if you have nothing more than a sense that the reason given to you is bogus and viable options for other employment, pursue unemployment compensation until you land the other job.

posted Apr 3, 2001 11:04 AM [EST]

Answer to violation of equal pay laws? (woman making more than men)

The equal pay law protects men as well as women

You appear to describe an equal pay violation. The equal pay act requires equal pay for both men and women.

Please note: your asked to send your question to lawyers in the state of "id". There is no such state. You should re-submit your question to attorneys in your state.

Regards,

Neil

posted Apr 2, 2001 10:07 AM [EST]