Answers Posted By Archibald Thomas

Answer to If I have a primary job and my part-time job is mandating that we are tested for COVID every 2 weeks but wants me to be late for the primary job is this legal when it can actually jeopardize my primary job?

In Florida, there is no legal obligation for an employer to accommodate your schedule to enable you to be on time for work with another employer. However, you may be entitled to have the employer requiring the testing to both pay for the test, if not otherwise covered by insurance, and to pay for the time it takes you to travel to and from the testing site and any time waiting for the test to be administered. Although the Department of Labor has issued no specific guidance on this precise issue, previous guidance issued in connection with required drug testing indicates that compensation may be required for Covid testing and any time you spend to comply with the employer's requirement.

posted Jul 29, 2020 12:57 PM [EST]

Answer to Does the FFCRA apply to an employer that has 5-8 employees?

The FFCRA applies to employers who have fewer than 500 employees. Thus, an employer with 5-10 employees is covered. However, employers with less than 50 employees can be exempt from some provisions of the act depending on the reason for the leave.

posted Jun 30, 2020 12:01 PM [EST]

Answer to What if my employer does not want to pay me and I am sick with COVID-19 am i covered under ffcra?

The Families First Coronavirus Response Act (FFCRA or Act) requires certain employers to provide their employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19. The Department of Labor’s (Department) Wage and Hour Division (WHD) administers and enforces the new law’s paid leave requirements. These provisions will apply from the effective date through December 31, 2020.

Generally, the Act provides that covered employers must provide to all employees:

Two weeks (up to 80 hours) of paid sick leave at the employee’s regular rate of pay where the employee is unable to work because the employee is quarantined (pursuant to Federal, State, or local government order or advice of a health care provider), and/or experiencing COVID-19 symptoms and seeking a medical diagnosis; or
Two weeks (up to 80 hours) of paid sick leave at two-thirds the employee’s regular rate of pay because the employee is unable to work because of a bona fide need to care for an individual subject to quarantine (pursuant to Federal, State, or local government order or advice of a health care provider), or care for a child (under 18 years of age) whose school or child care provider is closed or unavailable for reasons related to COVID-19, and/or the employee is experiencing a substantially similar condition as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of the Treasury and Labor.
A covered employer must provide to employees that it has employed for at least 30 days:

Up to an additional 10 weeks of paid expanded family and medical leave at two-thirds the employee’s regular rate of pay where an employee is unable to work due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19.
Covered Employers: The paid sick leave and expanded family and medical leave provisions of the FFCRA apply to certain public employers, and private employers with fewer than 500 employees.

Small businesses with fewer than 50 employees may qualify for exemption from the requirement to provide leave due to school closings or child care unavailability if the leave requirements would jeopardize the viability of the business as a going concern.

Qualifying Reasons for Leave:

Under the FFCRA, an employee qualifies for paid sick time if the employee is unable to work (or unable to telework) due to a need for leave because the employee:

is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
has been advised by a health care provider to self-quarantine related to COVID-19;
is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
is caring for an individual subject to an order described in (1) or self-quarantine as described in (2);
is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19; or
is experiencing any other substantially-similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.
Under the FFCRA, an employee qualifies for expanded family leave if the employee is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19.

Duration of Leave:

For reasons (1)-(4) and (6): A full-time employee is eligible for up to 80 hours of leave, and a part-time employee is eligible for the number of hours of leave that the employee works on average over a two-week period.

For reason (5): A full-time employee is eligible for up to 12 weeks of leave at 40 hours a week, and a part-time employee is eligible for leave for the number of hours that the employee is normally scheduled to work over that period.

Calculation of Pay:

For leave reasons (1), (2), or (3): employees taking leave shall be paid at either their regular rate or the applicable minimum wage, whichever is higher, up to $511 per day and $5,110 in the aggregate (over a 2-week period).

For leave reasons (4) or (6): employees taking leave shall be paid at 2/3 their regular rate or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day and $2,000 in the aggregate (over a 2-week period).

For leave reason (5): employees taking leave shall be paid at 2/3 their regular rate or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day and $12,000 in the aggregate (over a 12-week period—two weeks of paid sick leave followed by up to 10 weeks of paid expanded family and medical leave).

posted Jun 30, 2020 09:09 AM [EST]

Answer to I saw an email my manager sent to another manager stating a very hurtful statement about me. He apologized for the statement. But I explained to him the damage has already been done. I've considered quitting a job I've been on for 9 years. But because I'm

There is no easy solution to this problem. It may not be a legal issue unless the statement was made due to some discriminatory motive, such as your age. Given the fact that you have been there for 9 years and the fact that you have at least implied that it may not be easy to secure other comparable employment, I would not make a hasty decision. If you are still very upset, perhaps you could speak to your doctor about taking some leave under the FMLA to help relieve the stress caused by the situation. Of course, now you know something about the character of your manager, perhaps you could request your employer to assign you to another manager.

posted Jun 9, 2020 1:32 PM [EST]

Answer to I have been laid off due to covid-19 from my management position at a hotel. I was owed paid time and my insensitive/bonus which was earned prior to being laid off. Are they required to give me what i have earned?

The answer to your question regarding the bonus may depend on the precise wording of the bonus agreement. Some bonus agreements specify that you must be employed at the time of payment. With regard to PTO, this may depend on how you earned PTO, i.e., incrementally or all at once prior to the end of the period and whether there is any policy or statement in the employee handbook regarding payment of PTO upon lay off. To a certain extent, the employer's prior practice and course of dealing regarding these payments to others may be of some relevance.

posted May 5, 2020 1:12 PM [EST]

Answer to If I was hired to work in an office that belong to a larger company, and my office closes. Can my former employer enforce my non compete?

It is impossible to answer your question without examining the precise language of the agreement. If the agreement states that it does not apply if your office closes, you may be fine. But if it merely states that you will not work within a specified geographical area around your old office, it may still be enforceable. There also may be other restrictions such as those relating to confidential or proprietary information or non-solicitation of clients or customers that may be enforceable as well.

posted Jun 17, 2019 11:34 AM [EST]

Answer to Fired before 90 days probationary period for medical condition

Unfortunately, there is no correct answer to this question based on the very limited information provided. However, there are several possible legal issues involved. For example, if the employee has a disability within the meaning of the ADA and the employer could have reasonably accommodated this disability by permitting the time off, there could be a claim under the Americans With Disabilities Act. It is also possible that a similar claim could arise if the employee applies again for this same job after his medical problem is resolved and the company refuses to hire him due to his medical condition. There are several possible defense to this type of claim and due to the complexity of the law, the employee would be well advised to speak to an attorney if he is interested in determining if he has a potential claim.

posted Jun 7, 2019 09:41 AM [EST]

Answer to I work for Publix in Florida, I'm going on FMLA for knee surgery, can they make me take my sick days and vacation time for my FMLA to kick in

The law allows an employer to require an employee to utilize sick days and vacation time concurrently with FMLA leave. If all sick leave and annual leave is exhausted, any remaining time while on FMLA presumably will be treated as leave without pay.

posted Apr 23, 2019 2:30 PM [EST]

Answer to How do I report a illegal timesheet edit without disclosing my identity?

You may file a complaint with the United States Department of Labor, Wage and Hour Division. Complaints are confidential and your identity is not revealed unless, with your permission, it is necessary in order to pursue an allegation. Confidential, anonymous or not, the law prohibits retaliation for filing a complaint. It would probably be a good idea to speak to an attorney to find out what can be done to prevent this from occurring in the future and to evaluate whether your potential claim or the claims of other similarly situated employees can or should be pursued.

posted Apr 17, 2019 07:35 AM [EST]

Answer to Can an employer who is also your landlord force you to work for free or evict you?

Based on the limited information provided, your boyfriend may be able to pursue a claim for minimum wage and overtime compensation. You should discuss this with a lawyer right away since there are various issues that must be analyzed, such as the nature of the employment relationship, the nature of the duties provided by your boyfriend and whether the employer is covered by the Fair Labor Standards Act (most hotels are covered). There is also a two year statute of limitations under federal law. However, in cases of willful violations of the act, you may be able to go back as far as three years to recover any unpaid overtime or minimum wage compensation.

Archibald Thomas
Board Certified Labor & Employment Lawyer
4651 Salisbury Road, Suite 255
Jacksonville, FL 32256
(904) 674-2222

posted Apr 8, 2019 2:29 PM [EST]