have a question for an employment lawyer?

by Alison Green on July 5, 2011

Have you ever wished that you had an employment lawyer on call to answer your legal questions about the workplace?

I’m very excited about this: Donna Ballman has agreed to write a guest post over here. Donna is the fantastic employment lawyer who writes the fantastic Screw You Guys, I’m Going Home blog, where she talks about legal issues in the workplace. (And she wrote the article on workplace rights that you think you have but really don’t, which generated a lot of discussion over here, and more recently she gave excellent advice to the letter-writer whose boss was angry that she missed a meeting to have surgery.)

Rather than picking a topic ourselves, we’d like to hear what you guys want to hear from Donna on.

So, you’ve got an employment lawyer ready to talk to you about a topic. What would you like to hear about?

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{ 84 comments }

{ 84 comments… read them below }

  1. Anonymous*

    Since we’ve established that everything is “at will”, and employers can fire you for anything, or nothing…what the advice on how to keep a job? If excellent peformance, and documentation of excellent performance isn’t enough anymore, what can any of us do except fear getting fired every day we come in?

    1. Ask a Manager* Post author

      I can answer this one, since it’s more about the absence of legal protection than legal protection! And the answer is: Nothing’s guaranteed, but work somewhere reasonable with a reasonable manager (because you’re highly unlikely to be randomly fired without warning and cause in that context — although a layoff for financial reasons is always possible), have savings as a safety net, and be awesome at what you do so that you have a network of people who’d be excited to hire you if the opportunity arose (which is really the ultimate safety net).

  2. Mike C.*

    In my experience in the biotech industry, it always feels like the H1-B folks are indentured servants who are constantly afraid of being fired and deported. They’re generally expected to work for longer hours and seem to get less pay for their work.

    What sorts of practices are legal/gray area/illegal regarding the treatment of H1-B visa holders? If I see illegal practices, who should they report complaints to?

    Thanks for your consideration!

  3. Interviewer*

    References, for an employer to read. So many companies spill nothing except names and numbers. While it’s legal to say anything that reflects an honest assessment of that ee’s work, they won’t for fear of the almighty lawsuit. A refreshing amount of candor from an employment attorney on how many ees actually sue over this issue would be greatly appreciated. Also, some insight on what you can say that will never get you in hot water, or what will get you sued over if you DON’T tell someone.

  4. Anonymous*

    I have a lot of sick time accrued, and I am wondering, if I call out sick, how much information is my boss legally allowed to know about any medical reasons for my missing work?

  5. Anonymous*

    I work for a small business and we are going through a slow period. (business is very cyclical). Do I have any legal protection if we are behind on pay or not paid on time?

  6. Anonymous*

    Apologies if this it too specific. If a company has a grievance policy for terminated employees that technically puts them in an “administrative, unpaid status” while the grievance is being investigated (meaning that they will be paid for said time if they are reinstated), does the terminated employee also have the right to file for unemployment during the time that the grievance is being reviewed by the company? The company has a “suggested deadline” for themselves of thirty business days, which they are well beyond, the employee handbook essentially states that they can take as long as they’d like to respond to the grievance, is this a tactic to keep people from seeking unemployment?

    1. Ask a Manager* Post author

      You might actually call your local unemployment office and ask about this. My hunch is that you can collect, but you’d need to pay it back if you got back pay, but I’m not sure how that part would work in practice.

      1. UI worker*

        This is actually a pretty effective way of avoiding UI payments in my state, at least for a while. You would most likely have what’s called a disciplinary suspension issue on your claim. The up-side is that the issue would probably require the employer to explain what they’re doing to resolve it to the state at some point. My state isn’t impressed by employers, and a business that is using their “procedure” to avoid paying UI wouldn’t be well received.

        1. Ask a Manager* Post author

          The thing I’m thinking about is how in many states you can collect unemployment if your hours are cut or suspended — I’m thinking this might be similar. But it’s worth a call to your unemployment office to find out!

        2. Anonymous*

          That’s exactly the problem with my ability to file a claim, it’s a catch 22 for me. My former employer is stating that my grounds for termination were a result of what my state considers “aggravated misconduct” or “malicious, deliberate acts meant to cause physical harm, property loss or damage”. Which, in my state, makes me ineligible for unemployment. The allegations are totally unfounded, and absurd, which is one of the reasons why I’m filing the grievance in the first place, I have no intentions of returning to the company whatsoever, but I was hoping to have the grounds of termination changed through the grievance, so that I would be able to collect unemployment if needed.

          1. Quix*

            Why not file? If it’s anything like my state, you’ll be automatically denied because your employer says you were fired for cause, but then you can appeal.

            If you have a halfway decent case, you’re more likely to convince a dept of labor referee that you weren’t fired for misconduct than you are to change your employer’s mind.

            1. Anonymous*

              It depends on your state laws, but where I worked (state unemployment office), you should absolutely file for UI. Sounds like the company will protest, but you will have a phone interview with an adjudicator, and the adjudicator will then call the employer to get their side of the story, and make a decision based on evidence provided. So any documentation you have, including witnesses/statements/performance reviews, be sure to get a copy to them prior to your call. AAM is correct though, if you win your case and you are reinstated with back pay, you will have to pay your UI back. In my state, you have a year to pay monies back.

            2. Anonymous*

              Unfortunately I think I’ve been pretty naive about the whole thing. It’s pretty apparent to me that the “grievance procedure” is not in place as a means to resolve any concerns for the terminated employee, rather to protect the interests of the company, but I hadn’t even been thinking about it that way. Though I am aware of previous employees that have been reinstated through this process, I think they did so through legal means. I filed electronically and there is an option in my state for individuals that are “suspended without pay”, which the company handbook states that I am once I have filed a grievance. I guess I’ll see whether or not the claim will get paid once I have the phone interview…

  7. Anonymous*

    If I work at a pot dispensary can my workers comp claim be denied for having pot in my system? If because of my disability I need a break to smoke pot at work Is my employer required to consider that as part of the accommodation I need?

    1. Natalie*

      Wasn’t a similar question just answered in the courts? I want to say Supreme Court but it may have been one of the lower courts.

  9. Anonymous*

    If age is a protected class (over 40) is it “illegal” to push a manager to focus on “younger workers” because they are generally “healthier and not as expensive”? I was also told to focus on “single” (marital status is a protected class in my state) people because then you don’t have to pay for “family benefits”. Where is the line on discriminating versus “good business sense”. Mind you I have continued to try and hire the best person available but what are the ramifications for the manager if there is discrimination proven against the company?

    Before I get completely bashed here..I am actively seeking new employment at a location that doesn’t make me ill.

    1. Naama*

      I’m not a lawyer, but…yeah, that type of discrimination is not just over the line, it’s why the line exists. Not sure what the consequences would be to that particular manager, though. And I wonder what your legal rights & entitlements would be if you were fired due to a refusal to comply with instructions to discriminate.

      1. Anonymous*

        Better get those instructions sent to you via email for your paper trail…otherwise it’s he said/she said

  10. Anonymous*

    Employee vs. independent contractor status. Could we possibly cover topics like what do do if you have to claim unemployment? If you qualify for time and a half after 40 hours, etc.

    1. Anonymous*

      If you live in Illinois and are an independent contractor, you are not eligible for unemployment; unless you specifically paid tax money into the UI system for benefits (most do not).

  11. Anonymous*

    If the official HR policy at a former place of employment states that supervisors are responsible for sending requests for references to HR, can I do anything if this policy is not followed? That is, if my former supervisor (I never list him as a reference) responds to a reference inquiry instead of sending it to HR, do I have grounds for a complaint to HR?

  12. Anonymous*

    While I enjoy and agree with most of Donna’s stuff – her “explanation” of “at-will employment” disturbs me. There is no “at-will” law, it is just a common law doctrine. Employers and employers’ lawyers like to use this all the time, but in reality there are so many exceptions it almost doesn’t exist. There are all the federal and state law issue exceptions such as race, gender, age, disability, fmla, etc.,etc. There are at least 12 major exceptions to at-will such as implied contract, retaliation, public policy, whistle blowing, promises, etc. And of course there are union contracts, company policies, employee handbooks, etc. And, if all else fail, with a halfway decent presentation from your lawyer, a good number of companies would rather settle than litigate.

    1. Ask a Manager* Post author

      In my experience, the vast majority of people do fall into the at-will category, despite the various exceptions to it that you listed. It’s pretty important for people to understand the at-will concept, as for most people, it’s going to be a determining factor in their situation.

      1. fposte*

        I also think that so many people are crippled by the misconception that termination has to be for some significant cause or follow some pattern of warnings that it’s really useful to explain that the law doesn’t actually support that.

  13. fposte*

    How do federal laws apply to state employees? Is it just that the states are protected from federal suit, or do the laws simply not apply and we have to hope for state equivalents? I even recall years ago that interpretations of ERISA meant a state employee was unable to sue for medical malpractice in treatment paid for via a health plan provided by a state gov (a particular case, not necessarily a general finding). Is that still true, and are there other examples of ripple effects beyond the basic “state can’t be sued” problem?

  14. Emma*

    I work with someone that doesn’t pull his weight, takes credit for others ideas, refuses the inevitable change, is pessimistic, “sick” all the time (i.e. on Fridays or Mondays) and has had many bad reviews and has been demoted from his management position.

    He’s horrible to work with! But for some reason despite all of this he continues to hang on and bring everyone down that he works with. I’ve been told that HR will not take action.

    One other detail. He’s blind and has a guide dog. Is this why he’s untouchable? Is that fair?

    1. Ask a Manager* Post author

      Have you seen your company fire other low performers? If not, it may be a case of your company sucking at dealing with low performers, not a fear of lawsuits. (Not that they should be fearful of lawsuits if they have all their ducks in a row on this, which it sounds like they easily could.)

  15. Bob G*

    How about an article about “salaried employees”? For example if I am a salaried employee is my company obligated to pay me for things such as snow days (office closed) or jury duty? What are the pros and cons for the employee to be salary as opposed to hourly?

    What about “sick days”? If the company doesn’t have “sick days” is a salaried employee required to use a vacation day if they are “sick”? What about short term disability (a few days to a week or 2)?

    1. Anonymous*

      Likwise, what are protections for maximum hours that can be worked by salaried, “exempt” employees – are the 20-hour days really legal (I WISH I was kidding…)

  16. Donna mcNamara*

    I’d like to hear more about googling potential employees and using Facebook posts and pictures to screen out candidates. What’s legal in terms of sleuthing and what’s not? Also, what can legally be used to screen out potential employees and what can be used to fire employees? Whatever info is out there on this.

  17. Donna Ballman*

    These are all great questions! It’s going to be hard to pick one. I may use my blog to answer some more questions down the line, so feel free to keep posting questions here, or post them in the comments to my blog.

  18. Anonymous*

    I’m about to start a new job at a private university in Massachusetts. The fact that it is Mass is relevant because this questions deals with health benefits for hetero vs. homo couples. The university offers health insurance to the spouses of hetero and homo couples (homo couples can be legally married in Mass), but also to homo couples in a domestic partnership. Hetero couples in a domestic partnership can not apply for health insurance benefits. This seems like discrimination against straight people to me, but maybe it’s only because this situation applies to me and my boyfriend of 10 years who have chosen not to get married for philosophical reasons. Is it worth bringing up this point to HR, or perhaps bringing it the attention of some sort of org like the ACLU?

    1. Anon2*

      I’m no attorney but it sure sounds discriminatory to me; I’ve thought this type of policy needed correcting long ago. Of course you don’t want to make waves@your new job, but I wonder if you just asked HR in a curious manner, “had anyone thought this policy discriminates against hetero couples” …maybe it had never occurred to them, or had not re visited old policies.

  19. Anonymous*

    I’m hoping someone can help me.
    Several months ago, a fellow employee wrote me an email that said, “You belong on a street corner” and when I asked her what she meant she said, “Well I guess that’s up to you.” This same employee on multiple instances tried to use her height over me (she was over 6 feet and I am just off 5 foot) to intimidate me.
    Just recently, another employee was angered by an email I wrote, which I guess could have been construed as kind of sharp and pointed if you were really stressed out but I didn’t say anything out of line. She called me and proceeded to yell at me and call me a snotty brat. At which point I said, “Okay bye,” and hung up because I knew I’d say something that would have gotten me fired. She proceeded to file a grievance against me for unprofessional conduct and even though my boss was totally aware of the situation, my boss is taking her side. I am being written up. And the other employee is having nothing done against her despite her attacking me.
    My boss said that my UNFOUNDED accusations in both of these cases (despite WRITTEN proof of the first) is grounds for termination and that if I continue to behave in this manner, I will not like the consequences.
    In both cases, I went to HR and talked to them and asked them for help and they have not helped me.
    These two individuals had the same position at different locations and have frequent contact with my boss, who, btw, is a real piece of work and frequently belittles me and my co-workers…so much so that the one guy quit just this week.
    I am looking for a new job, but don’t know what to do in the meantime. They are constantly causing me problems. I get that emails can be taken out of context and that people get angry, but I don’t understand why I’m being written up and threatened and told to be a better employee when these other employees are committing serious offenses and being workplace bullies.

    Also…last week, I had a terrible bike accident and was late to work one morning…by like 15 minutes. I even called my boss to tell her that I would be late. The next day, my husband accidentally took my keys with him to work so I had to find a ride to work and was late, and I told my boss about it. Well he’s in the military and I took Friday off last week to go to a meeting about his deployment that they didn’t tell us about until the last minute.

    So my boss was threatening me over that as well. Telling me that I’m not allowed to miss any more work. I had PTO and took PTO for all of those things because I like to be honest.

    She made me cancel an appointment with my doctor for my Lupus which I won’t be able to reschedule until November!!!

    I also had an appointment on a Saturday coming up, and even though I’m salaried M-F, an hourly employee asked for it off so she told me that “you need to be a leader and if you can’t do that you need to tell me now so that I can find someone who can be a leader…so you need to figure out your schedule because I don’t want to have this conversation again.” She already made me cancel everything I have to do that week AFTER HOURS because we’re going to be short a person and I “had better make sure that I’m 100% available to cover if our hourly person can’t make it in”. Well frankly…she shouldn’t allow the third person to go out of town for a week if we can’t man the phones without them…not to mention they’re an hourly employee whose last day of work is August 30th!!! So why are they letting him take days off work (he has ZERO PTO) and making me work the extra hours???

    Somebody help!!! I can’t take this anymore!!! Isn’t there any recourse I can take to make them stop abusing me??? At least until I find a new job???

  20. adam*

    I am writing an Email to my boss and all the employees, about how bad they treat us the employees, he is a complete egomaniac, and will try to do something drastic. I say in the email that it is completely speculation, and is my opinion, and is not meant to offend or hurt anyone. The claims in the email aren’t false, but are well known to all the employees of the company, the email is just to get the information to everyone. Could he sue me? More importantly, could he win?

  21. april*

    i have a co-worker that cursed at me , calling me every name in the book 2 weeks ago for no reason at all…i went to my boss and reported this co-worker and still nothing has been done…i’m trying to find out if there is any legal ground that i can go to a lawyer with.,considering that my co-worker feels that he did nothing wrong. i am a female and i feel that this is completely unacceptable.

    1. Ask a Manager* Post author

      It doesn’t sound illegal, no. I would try to let it drop, honestly. I know that’s not easy, but these are your colleagues; they’re not friends, you don’t have to like them.

  22. flower*

    Hi, I have a question about languages. I work in the shop as a sales assistance. I am from other country and there are working 5 more persons from the same country as me. So about 2 month ago my boss told for us that we can not speak in our language at all times even there are no customers around. Can they do that?

  25. Anonymous*

    Donna,you say that work place harassment, and bullying isn’t illegal. Well, I have a question regarding that statement. What if your boss puts his hands on you? As in, grabs you by both arms above the elbow hard enough to leave bruises, and gives you a good shake? This happened to me, and I was just wondering if there is anything at all I can do about it. Because from what research I have done, and by reading your article about worker’s rights that we don’t have. It does seem that the only protection out there is for those that are discriminated against.

  26. Donna Ballman*

    That would be assault and battery, and it’s a crime. It’s also a tort, but against the individual and not your company, unless they know about his propensity to lay hands on employees. I’d suggest reporting it, in writing, to HR to put them on notice. If you’re injured, contact a personal injury attorney. If you feel you’re in danger, contact the police. You might also want to talk to an employment lawyer in your state to see if there’s anything else they can do.

  27. Prasha*

    Dear Sir,
    Can an employee get their leaves(annual 14+Casual 07+ Medical 18) in a one month ?
    and can he/she get these leave covering by each month 7 days leave?

    1. Donna Ballman*

      Hi Prasha. If you qualify for Family and Medical Leave, then you will first be able to exhaust your paid leave all at once, then will go on unpaid leave. That’s the only circumstance I can imagine where an employer would approve a full month off, although you’ll want to check with an employment lawyer in your state. Otherwise, when you take your leave depends on getting advance approval from your company. You usually can’t use sick/medical leave unless you’re actually sick, so don’t try to use it for a long vacation.

      I hope this helps.

      Donna

  29. Shilo*

    I was just wondering. I am a salaried worker and have been woring in the hospitality industry for 15 years. I have been on salary for 6 of them. I have worked over time put in extra hours when needed and don’t get any extra for doing so. Since the transit strike in the HRM started I am unable to get to work where I rely on the transit system. I do work the odd shift during the week and I work weekends where I can find a way to work.My employer has cut my pay and is now only paying me for the days that I work. Can they do this? Or what can I do about it?

  30. Donna Ballman*

    Hi Shilo. It sounds like you may not be exempt. First of all, by docking you for certain days, the employer probably made you no longer exempt. If you aren’t exempt, that means you can go back 2 – 3 years and claim all your unpaid overtime. You might want to talk to a lawyer who handles Fair Labor Standards Act claims in your state. In the meantime, here’s an article I wrote about salaried workers who aren’t exempt from overtime: http://jobs.aol.com/articles/2011/07/18/salaried-workers-do-you-get-paid-for-overtime-odds-are-you-sho/

    I hope this helps!

    Donna

  31. Anonymous*

    I have another question. Where I am a salaried worked can they also put me back down to min wage and pay me by the hour intead of prorating me based on my salary wage?

  32. Donna Ballman*

    Sure, Anonymous, they can probably reduce your pay. They can’t do it retroactively, but can do it effective going forward. If you turn down the pay cut and they fire you, you might qualify for unemployment in your state. You might want to talk to an employment lawyer in your state about whether you might have any claims. For instance, if they are reducing women’s pay but not men; if they are targeting you for objecting to something illegal; or if you just returned from FMLA leave then you might have some claims against them.

  33. Anonymous*

    I am a salaried employee (no overtime pay) that had shoulder surgery 3 wks ago. The employer won’t take me back ’til doctor totally releases me, which I understand it’s for insurance reasons. My question is with me being salaried can employer refuse to pay me during my time off?
    Thx

  34. Donna Ballman*

    Your employer can make you use sick/vacation time, and can then dock for full days missed. However, I think you may have potential legal claims. The requirement that you be able to return to “full duty” may well violate the Americans With Disabilities Act. They can’t refuse to grant a reasonable accommodation. EEOC has been going after employers with inflexible leave policies. Take a look here: http://www.eeoc.gov/eeoc/newsroom/release/1-5-11a.cfm and here: http://www.eeoc.gov/eeoc/newsroom/release/7-6-11a.cfm for examples of cases that might apply to your situation. I’m not sure of your occupation, but here’s an EEOC fact sheet that will show how this all works in one industry (the same principles apply to all industries: http://www.eeoc.gov/facts/health_care_workers.html

  35. suazanne*

    hi, im a woman lorry driver and have been at my present job for 2 years we have just got a new transport planner who does nothing but eff and use the c word in front of me, ive ask him not to but he still does it and its upsetting me is there anything i can do many thanks sue

  36. Donna Ballman*

    Hi Suzanne. If you find it offensive and he won’t stop, you might report it to HR as sexual harassment. Whether it is enough to actually be sexual harassment is a question you might ask a lawyer in your state, but you must report it first under the company’s sexual harassment policy if you want to possibly pursue a legal case down the road. If it continues or if you are retaliated against, you’ll need to talk to an employment lawyer in your state about next steps.

    1. Ask a Manager* Post author

      What specifically are you wondering about? There are lots of general articles out there about age discrimination that you’ll find with a quick search; is there some specific nuance you’re wondering about?

  39. Anonymous*

    I currently work in Texas as a non-exempt salaried employee. I am going to be out for two or three weeks for surgery. My company does not offer sick time, but they do offer paid time off. I am only able to work one day of a pay week, then have the surgery. My question is, do I have to use my paid time off to get paid for that week? Also, do I have to use my paid time off for the next two weeks or can I ask for unpaid time off during that time?

    1. Ask a Manager* Post author

      If you’re non-exempt, you’d need to leave paid time off to get paid for that time, unless your company has a different policy.

  40. Anonymous*

    I hope this is something you can answer for me.
    Two things…
    One, my employer laid me off due to “reduction of force.” Or, that is what I was told. From what I understand, Unemployment is saying that may have been the incorrect way for me to have reported it. However, that is what I was told. I have emails verifying that is all I knew before I left.
    There is no way I can be held accountable for the company’s mistake, correct?
    Two…the same company offered me a job at $4 an hour less. I refused. There were many reasons I refused dating back to the previous year, some had to do with my health and a disability (seeking a new line of work).
    Is that a reasonable excuse to turn down a job?

  42. Anonymous*

    If I have sick time and vacation time, can my boss tell me if i take a day off i have to use vacation time or is that up to me. I hardly miss any work but was told by my boss if i miss a day i HAVE to use vacation even though i have quit a few numbers of sick days. Is that legal or is that completely up to me which one i use?

    1. Ask a Manager* Post author

      Yes, it’s legal for them to tell you that. No federal law requires that employers offer paid time off, and when they do, it’s common for them to reserve sick leave for times when you’re actually sick.

  43. Dustin*

    My question is, can an employer tell you that he is punishing you for missing a day for being sick? My boss told me that my punishment was to weedeat a dangerously steep hill, I fell tore my shoe and hurt my ribs when I landed.

  45. taken advantage of!*

    I would like some advice on a situation that is so confusing to me. I have worked for a company for 10 1/2 yrs., after 9 1/2 yrs the business got to huge for my house. yes! my house. I have stored equipment & vehicles at my home with no pay or contract to pay. i have brought up the space that the equipment was taking in my home for many years & pushed to the side all the time stating that my office dont make enough money to get an office yet!. I have plugged equipment up, made phone calls, internet usage, held meetings, interviews, training classes and all at my expense. i was an hourly employee & on our days off had to open doors to accomadate business to be conducted. I have started with this company as an hourly employee & after 7 1/2 yrs. was promoted to salary. I have been recently terminated because of an employee that the company say that did not have a background check ran on after he was employeed for 1 1/2 yrs., which i know is incorrect information & plus because my son’s worked for me. But let me add in that my husband worked with me for 8yrs & the complany knew about it. but i would like to further take action on sueing them for rent. I have pictures with my children taking naps in my living room with equipment layed out thru my living room. Without this equipment being plugged up to my electric business would not be able to be conducted. this is a top business company. There has to be something that can be done…

    1. Anonymous*

      Hi Donna I am “taken advantage of” I have wrote a post on your blog & did not get a response is there any advice you have to offer in my position? Thank you for your time & I hope to hear from you soon..

      1. Ask a Manager* Post author

        This post is actually fairly old and doesn’t get checked regularly, so I wouldn’t count on Donna seeing anything posted here at this point.

  47. barbara*

    If I am a salaried employee and I missed days from work because of a natural diaster can they force me to use my vacation time or should I be paid because I am a salaried employee?

    1. Ask a Manager* Post author

      They can make you take vacation time.

      If you don’t have any vacation time to use, if you’re exempt they still need to pay you for the full week if you worked at least one day.

  48. Jolene*

    Can a human resource manager tell an employee he or she should lose weight? The employee re-injured their back while at work (injury was non-work related and happened several years previous). This employee had a note from a doctor for time out of work.

    Also, should employers have documentation of communication for mandatory overtime?

  49. stephen*

    here we go. i worked for a security company as a guard for 5 years with 3 call offs and i was fired for falling asleep. i was over worked. one month i worked like 25-28, 8hr night-shifts straight with no days off, plus i held over for overtime in the morning sometimes. this was last year is there a statue of limitations on this. i worked the hours because i was in fear of losing my job, and they had a paper trail on me which they help create. do i have a case.
    thanks

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