FAQs

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FAQs 2017-11-15T04:57:18-04:00

Overtime Pay FAQs

When is overtime pay due?

Overtime pay is due whenever an employee works form that 40 hours in a workweek or 8 hours in a day. The 8 hour day rule only applies in California. The overtime pay rate provides you with a 50% increase in your normal pay rate.

How are vacation pay, sick pay and holiday pay calculated?

Vacation, sick, and holiday pay are not regulated by federal law. Typically payment for sick time, vacation and holidays are up to the employer.

Am I entitled to extra pay for weekend or night work?

No, there is no law requring extra pay for weekend or night work. But, your employer can agree to pay you extra for such work. Also, the overtime pay rules apply and if this extra work causes you to work more than 40 hours in a work week, then you are entitled to overtime pay at a 50% pay increase.

When am I entitled to a raise?

The law does not require a pay raise. Pay raises must be agreed upon by the employer. The best way to get a raise is to go ask for one. But there is no legal requirment that your pay be increased overtime.

What if my employer changes my job duties, can they do that?

Yes, your employer can change your duties. There is no law that restricts the scope of your work. You need to do what your employer asks you to do. If you do not like it, you should discuss it with your employer and if you are not satisfiesd, you are free to find another job.

My employer has classified me as an independent contractor and refuses to pay me overtime pay. . Am I entitled to overtime pay?

First you need to determine if you are truly an independent contractor. A genuine indepedent contractor is someone who works for more than one company, controls their own work schedule and even uses their own equipment on the job. An employee, on the other hand, only works for one company and their work schedule and tasks are controlled by the employer and the employer provides the work place and equipment. Generally, if you go to work for the same company each day and work a full day each day then you are an employee and not an independent contractor. Employees are entitled to overtime pay, but genuine independent contractors are not entitled to overtime pay.

If I am paid a salary, am I entitled to overtime pay?

Yes, even salaried employees are due overtime pay. It is a common misconception that only hourly workers get overtime pay. Do not fall for that. Salaried employees are entitled to overtime pay. There are exceptions to the overtime rules and these include outside commissioned sales employees, executives, certain high level administrators, professionals such as doctors and lawyers, and truck drivers.

Do I need my time records to prove an overtime case?

No, if your employer does not keep track of your time, then you are allowed to estimate your time and that will usually hold up.

Do I need to get permission to work overtime?

No, approval is not required. If you worked overtime, you are entitled to overtime pay.

Can my employer force me to take comp time in lieu of overtime pay?

No, comp time cannot be substituted for overtime pay. If you work overtime, you must be paid at your overtime rate.

What is a workweek?

A workweek is any period of seven consecutive days.

Age Discrimination FAQs

Q: Who is protected by the Age Discrimination in Employment Act (ADEA)?
A: The ADEA covers government workers as-well-as private employees over 40 years of age who work for employers with 20 or more employees. The ADEA covers government workers as well as private employees. Most states also have laws that protect workers from age discrimination and may cover employers more broadly than the ADEA.

Exceptions to ADEA protection include the following:

  • Executives or people “in high policy-making positions.??? These individuals can be forced to retire at age 65 if they would receive annual retirement pension benefits worth $44,000 or more;
  • Police and fire personnel, tenured university faculty, and certain Federal employees in law enforcement and air traffic control. If you are in one of these categories, check with your personnel office or benefits plan office for details;
  • When age is an essential part of a particular job, or a “bona fide occupational qualification??? (BFOQ). For example, if a children’s clothing store needs models, youthfulness is a necessary part of the job;
  • State government workers. These individuals are not allowed to sue for monetary damages under the ADEA, but can sue for “injunctive relief??? to force the state to stop the discrimination.

Q: What kind of conduct constitutes age discrimination?
A: Age discrimination can range from the most visible examples of bias, such as when a bank hires a young, inexperienced bank teller instead of an older woman who has years of experience in the field, to more subtle instances of discrimination, such as when an executive is moved to a smaller office after he or she reaches age 55, or when a promotion is filled by a younger staff member before the older workers even hear about the opening. Opportunities in all phases of the employment process, including recruitment, hiring, training, promotion, job assignments, pay, and benefits, must be equally accessible to and inclusive of people of all ages. Individuals over 40 years of age may not be singled out for firing, demotions, or layoffs based on their age.

Q: What kinds of damages can I recover in an age discrimination lawsuit?
A: Victims of discrimination in the workplace can recover back pay (lost wages), front pay (future lost wages), promotion, or reinstatement to the position that was denied because of discrimination; compensatory damages for emotional distress; punitive damages against an employer if he/she was acting with malice or reckless indifference; attorney’s fees and court costs; and any other award that would make the victim “whole,??? (put the victim in the same position he/she would have been absent the discrimination). The employer may also be forced to take corrective or preventative measures to ensure that the discrimination does not happen again.

Q: If I feel I am being discriminated against based on my age, what should I do?
A: If you feel you are being discriminated against based on your age, you should first use whatever complaint procedures are available to you through company management. Check your company’s employee handbook, personnel policies or manual for a discrimination or complaint policy. If the company does not have a formal complaint procedure, ask someone in the human resources or personnel department how to make an age discrimination complaint. Make any reports in writing in order to create a paper trail of the discrimination. Be specific about the nature of the discrimination, thoroughly documenting the details of the misconduct. Consider keeping a diary or journal of the discrimination.

Q: I am 50 years old and the company I work for has just laid off a large number of employees, including myself. Could this be age discrimination?
A: Possibly. Under the ADEA, all employment decisions, including terminations or lay-offs must be executed for a reason other than age. Valid reasons for a lay-off include the genuine economic distress of the employer or poor job performance by the employee. In a large scale lay-off, if most of the employees who were laid off were over the age of 40, and the majority of employees who maintained their jobs were younger than 40, there may be a basis for an ADEA complaint or lawsuit. Your claim would be particularly strong if the employer hired younger workers to take the place of workers over 40 who were laid off.

Q: Is it legal for my employer to lay me off just before my pension vests?
A: If the employer laid you off for a legitimate reason, such as poor work performance, it may be legal. If the employer laid you off because of your age (because he or she didn’t want to pay the benefits due), then it is illegal.

Q: What does it mean when an employer asks me to sign an agreement waiving my rights under the ADEA?
A: Older employees may be asked by their employers to sign waivers, releases or agreements not to sue. In exchange for signing the waiver, the employer usually offers the employee an incentive for early voluntary retirement, such as a significant amount of severance pay. There are a number of restrictions on such waivers. For more information please see the “Waiver of ADEA Rights??? section above.

Q: My employer recently gave me a poor performance evaluation that I didn’t deserve and then used the negative evaluation as an excuse to fire me. Could this be age discrimination?
A: This is a common tactic used by employers to justify age discrimination. It is legally referred to as creating a “pretext??? for discrimination. If you are over forty, and the poor performance evaluation was merely an attempt to cover up age bias, this situation could indeed constitute age discrimination.

Q: I am fifty-two years old and have twelve years experience working as a secretary for a major law firm. Recently, a new boss made life so difficult that I finally quit. Is this age discrimination?
A: It is possible that you have experienced age discrimination. In this case, it is important to determine whether or not your boss hired a younger individual to replace you. If he did, this may constitute age discrimination. Under the ADEA, preferential treatment usually may not be given to a “younger-looking??? employee.

Race Discrimination FAQs

Q: What is national origin discrimination?
A: An employer may not discriminate against an employee based on his or her national origin or based on characteristics associated with a particular national origin. This includes culture, name, ancestry, native language, or accent (unless it interferes with the employee’s ability to perform his or her job duties).

Q: Is there ever a legal reason for an employer to discriminate based on race?
A: Rarely, a “bona fide occupational qualification??? can be applied to discrimination based on race. For example, if a film director wanted to hire an individual to play the part of a Hispanic mother in his next movie, the director could “discriminate??? against an African-American, or white woman who interviewed for the job because being Hispanic is an integral part of the job. Otherwise, there is no legitimate excuse for race-based discrimination in the workplace.

Q: Can a single incident of harassment constitute racial discrimination?
A: A single incident of racially based harassment could constitute racial discrimination if the conduct is particularly egregious. For example, if a supervisor put a noose on an African-American employee’s car as a threat, the employee could likely make a successful claim of race discrimination.

Q: Do discrimination laws only protect minorities?
A: Discrimination laws protect people of all races. Courts have allowed non-minorities, including Caucasians, to sue for racial discrimination. Yet, the number of non-minority racial discrimination cases (sometimes referred to as “reverse discrimination???) is very low compared to the total number of racial discrimination cases filed each year.

Q: Can an employer ask me about my race on an employment application?
A: There are occasions when an employer may legitimately need information regarding the race of employees, such as affirmative action reporting. Yet, if an employer uses the information to discriminate against potential employees, it is illegal.

Q: What are the legal steps I can take to stop racial or national origin discrimination?
A: You can file a suit under either Title VII of the Federal Civil Rights Act or under a State Fair Employment practices law. If you pursue a claim under the Civil Rights Act, you must first file a claim with the EEOC (Equal Employment Opportunity Commission). The EEOC may occasionally decide to prosecute your case, but most often will review your case and then issue you a “right to sue??? letter which will allow you to bring your case in Federal Court. To file a discrimination lawsuit, you will likely need the help of a lawyer.

Q: What kinds of damages can I recover in a discrimination lawsuit?
A: Damages in these cases are based largely on lost income. You simply multiply your monthly compensation by how many months you were out of work. If you earn $10,000 a month and were out of work for 12 months, your lost income is $120,000. We typically add another 20 to 30% to this number for lost benefits. Many cases also warrant emotional distress damages but this is hard to quantify. Interest, costs and legal fees are also recoverable as well punitive damages in certain cases.

Sexual Harassment FAQs

Q: Does all sex-related conduct in the workplace constitute sexual harassment?
A: The Civil Rights Act does not prohibit “genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex.??? A recurring point in the Court’s opinions is that “simple teasing,??? offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the “terms and conditions of employment.??? The court has stated that the sexually harassing conduct must be both objectively and subjectively offensive, in that a reasonable person would find it hostile or abusive. Further, the victim of the harassment must also perceive the conduct as hostile or abusive. Conduct that is not severe or pervasive, or conduct that is not considered offensive by the victim, is not considered sexual harassment under Title VII.

Q: What type of conduct has been found to constitute sexual harassment?
A: Conduct that constitutes sexual harassment must be viewed in the context of the entire work environment and considered on a case-by-case basis. If one employee was telling sexually explicit jokes to a co-worker and the co-worker found the jokes funny and entertaining, this would not be considered sexual harassment. However, if the co-worker found the jokes offensive and was made uncomfortable by them, this would be considered sexual harassment. Conduct that has been found to constitute sexual harassment has included the following:

  • repeated sexual innuendo, obscene jokes, slurs, lewd remarks and language, and other offensive sexual comments;
  • content in letters and notes, facsimiles, e-mail, and graffiti that is sexually abusive or of a sexual nature;
  • sexual propositions, insults, and threats;
  • demeaning names based on gender or sexual orientation
  • persistent unwanted sexual or romantic overtures or attention
  • leering, whistling, or other sexually suggestive sounds or gestures;
  • displaying pornographic pictures, calendars, cartoons, or other sexual material in the workplace;
  • coerced or unwelcome touching, patting, brushing up against, pinching, kissing, stroking, massaging, squeezing, fondling, or tickling;
  • subtle or overt pressure for sexual favors;
  • coerced sexual intercourse (e.g., as a condition of employment, promotion or salary increase).

Q: Can a single incident constitute sexual harassment?
A: In “quid pro quo??? cases, a single sexual advance may constitute harassment if it is linked to the demand for the exchange of a tangible employment action, such as discharge or demotion. In “hostile environment??? cases, a single incident usually is not enough to constitute a “hostile environment.??? The more egregious the conduct, the less need there is for the victim to show that the conduct is repetitive. One should note, however, that most hostile environment claims are shown to be pervasive due to the repetitive nature of the conduct. Often, a single derogatory comment or offensive gesture will not be enough to bring a claim under Title VII.

Q: If I feel I am being sexually harassed, what should I do?
A: Tell the harasser to stop. Some experts say that up to 90% of the time, this works. If this does not work, use whatever complaint procedures are available to you through company management. Check your company’s employee handbook, personnel policies or manual for a sexual harassment or complaint policy. If the company does not have a formal complaint procedure, ask your human resources or personnel department how to make a sexual harassment complaint. Make any reports in writing in order to create a paper trail of the harassment. Be specific about the nature of the harassment, thoroughly documenting the details of the misconduct. Consider keeping a diary or journal of the harassment and save any offensive notes, pictures, or other material used to harass. DO NOT retaliate back against the harasser.

Q: What legal steps can I take to stop sexual harassment?
A: You can file a suit under the Federal Civil Rights Act or under a state “fair employment practices??? law. If you pursue a claim under the Civil Rights Act, you must first file a claim with the EEOC (Equal Employment Opportunity Commission). The EEOC may occasionally decide to prosecute your case, but most often will review your case and then issue you a “right to sue??? letter, which will allow you to bring your case in Federal Court. To file a sexual harassment lawsuit, you will almost always need the help of a lawyer.

Q: What kinds of damages can I recover in a sexual harassment lawsuit?
A: Victims of sexual harassment in the workplace can recover back-pay (lost wages), front-pay (future lost wages), promotion or reinstatement to the position that was denied because of discrimination; compensatory damages for emotional distress; punitive damages against an employer if it was acting with malice or reckless indifference; attorney’s fees and court costs; and any other award that would make the victim “whole,??? (put the victim in the same position he/she would have been absent the discrimination). The employer may also be forced to take corrective or preventative measures to ensure that the discrimination does not happen again.

Q: I agreed to go on a date with my boss because he implied that my job would be at stake if I did not. Now I am angry and want to sue. Is it still sexual harassment even if I agreed to the date?
A: If you were forced into going on a date in exchange for job security, you can sue whether or not you accepted the exchange. It was illegal for your boss to put you in that position in the first place.

Q: I was having difficulties with a co-worker who was constantly displaying pornography in the office. I was so fed up that I quit. I didn’t think my manager would help so I didn’t bother complaining or reporting my co-workers behavior. Can I still bring a lawsuit?
A: For the employer to be liable, the sexually harassing conduct must be reported to a manager, or the management of the company must know about it and have had the opportunity to correct it. In other words, to bring a successful suit, you must have used the complaint processes provided to employees by the company and have given the management the opportunity to correct misconduct.

Q: Does sexual harassment apply only to men harassing women?
A: Sexual harassment is illegal whether a man sexually harasses a woman, a woman sexually harasses a man, or an individual sexually harasses another individual of the same sex.

Q: Can an employer refuse to hire me because I am pregnant?
A: An employer cannot refuse to hire you based on the fact that you are pregnant, as long as you are able to perform the major functions of your job.

Q: I am on pregnancy leave. Am I entitled to the same benefits that my company extends to workers on leave for other temporary medical conditions?
A: Yes, if your employer extends benefits to workers on leave, than it must provide the same benefits to you. Also, any health insurance provided by your employer must extend benefits for pregnancy or related medical conditions on the same basis as costs for other medical conditions.

Q: I have recently started work with a new employer. When I began receiving medical benefits, I was already six months pregnant. The health insurance company has refused to cover the costs of the pregnancy. Is this legal?
A: If a health insurance plan excludes benefits for pre-existing medical conditions at the start of coverage, it is legal to deny benefits for the costs arising from an existing pregnancy. In this situation, it may be legal for your benefits to be denied, depending on the terms and conditions set forth by your carrier.

Disability Discrimination FAQs

Q: What types of accommodations have courts deemed “reasonable??? for individuals with disabilities?
A: The term “reasonable??? is subjective and the terms of a “reasonable accommodation??? are often based on the nature of the company, e.g., whether the company is large enough and sufficiently financially stable to restructure its facilities to provide the accommodation. It is crucial to evaluate each situation on a case-by-case basis. The following are examples of accommodations which courts have deemed reasonable:

  • Modifying existing facilities to make them more usable by disabled employees, such as installing computer screen magnifiers or telecommunications for the deaf;
  • Modifying exams and training materials, such as allowing an employee extended time to take an exam, or offering the exam in an oral rather than written format;
  • Providing unpaid leave for medical treatment;
  • Restructuring work schedules, such as allowing a ten hour/four day workweek so that a disabled employee can attend weekly physical therapy;
  • Hiring readers or interpreters to assist an employee; and
  • Reassignment of the disabled employee to a vacant position for which the employee is qualified.

Q: If I have a disability and I am in a job interview, is it legal for the employer to ask me questions about my disability? Can the employer require a medical evaluation before making an employment offer?
A: The prospective employer can ask you questions about your ability to perform tasks essential to the job in question. He/she cannot ask you questions about the existence, nature or severity of a disability, past or present. Medical evaluations can be conducted only if all prospective employees in the same job category are subjected to medical evaluations. You cannot be singled out for a medical evaluation based on a perceived or actual disability.

Q: How does the ADA pertain to drug and alcohol users?
A: Drug testing is not considered a medical examination, and is therefore not covered under the ADA. Individuals currently using illegal drugs are not protected by the ADA. Alcoholism is considered a disability and can be covered by the ADA as long as the individual is qualified to perform the essential functions of his/her job. An employer may be required to provide an accommodation to an alcoholic, but an employer can discipline, discharge or deny employment to an alcoholic whose use of alcohol adversely affects his/her job performance. An employer also may prohibit alcohol in the workplace and require that employees not be under the influence of alcohol while in the workplace.

Q: How does the ADA pertain to HIV/AIDS?
A: Acquired Immune Deficiency Syndrome or AIDS as well as testing positive for the virus HIV, are generally covered under the ADA as disabilities. Therefore, it is illegal for an employer to fire, refuse to hire, or otherwise discriminate against a qualified employee with AIDS/HIV.

Q: What should I do if I believe that I am being subjected to disability discrimination?
A: The ADA mandates that you inform your employer of your disability and need for an accommodation. It is best if you do this in writing. You must then work with your employer to find an accommodation. that works for both of you. There are many public and private organizations that can assist you in this process if you and your employer are having difficulty finding an appropriate accommodation. (please see the “Useful Links??? section of this site). If your employer is not cooperative, or if you are unable to find a solution, you may want to seek help from an attorney. You may contact this firm for an initial consultation at no charge.

Q: What kinds of damages are available under the ADA?
A: A victim of disability discrimination can recover economic loss such as back pay (lost wages) and front pay (future wages) that he or she would have earned absent the discrimination, or a court may require an employer to reinstate or promote a person to a position denied because of discrimination, as well as compensatory damages for emotional distress, and punitive damages if the employer acted with malice or reckless indifference. In a successful lawsuit, the plaintiff can recover attorney’s fees and court costs. The employer may also be forced to take corrective or preventative measures to ensure that the discrimination does not happen again.

Family Medical Leave Act FAQs

Q: Who is considered an “immediate family member??? for purposes of FMLA leave?
A: Under the FMLA, immediate family members are spouses, children, and parents. Spouses must be legally married partners, as the FMLA does not apply to unmarried domestic partners. The term parent does not include a “parent-in-law,??? (your spouse’s parent). Children must be under 18, unless they are incapable of self-care because of a mental or physical disability. “Children??? refers to biological children, adopted children, foster children, step-children, or any child for whom the employee is acting in a parental capacity. Care for grandparents, in-laws, and siblings is not covered under the FMLA.

Some state and local laws cover these terms more broadly, so please check with a local plaintiff’s employment attorney if you have further questions. For example, Connecticut state law extends coverage to a “parent-in-law,??? or a spouse’s parent.

Q: Is there any way to obtain paid leave under the FMLA?
A: The FMLA only covers unpaid leave. You can elect to take accrued paid leave (such as vacation time or “sick days???) for part or all of the FMLA leave period. When accrued paid leave is substituted for unpaid FMLA leave, the employer may count it against the 12 week FMLA leave period, if the employer notifies the employee of this at the beginning of the leave period.

Q: Does the FMLA protect men who take leave to care for a newborn or adopted child?
A: Yes. The FMLA protects men and women equally.

Q: Is FMLA leave the same as workers compensation leave?
A: No, but an employer can count a workers compensation leave as FMLA leave if it notifies the employee in writing before the leave period.

Q: Can pregnancy leave be considered FMLA leave?
A: Yes, as long as the employer notifies the employee in writing before the beginning of the leave period.

Q: If I have complications during pregnancy, can I obtain extended leave under the FMLA?
A: The FMLA does not cover extended maternity leave for complications during pregnancy. Check your local state laws and your company’s human resources department for ways to extend your leave.

Q: What if my employer does not notify me that my pregnancy or workers compensation leave is considered FMLA leave?
A: Usually, an employer cannot retroactively (after the fact) count the leave as FMLA leave. An employee must be notified in writing that a leave is designated as FMLA leave. If the employer did not know the reason for the leave, it may retroactively count it as FMLA leave while the leave is in progress, or within two business days after the employee returns to work.

Q: Does FMLA leave cover continuing visits to a physical therapist?
A: FMLA leave covers “continuing treatment by a health care provider.??? This includes absences over a period of time for therapy treatments prescribed by a doctor after hospital treatment or for the treatment of severe arthritis.

Q: Do I have to provide medical records to my employer to take FMLA leave?
A: While an employer may request medical certification from a doctor to confirm a serious health condition, you are not required to provide your employer with medical records.

Q: Can my employer make me obtain a “second opinion??? about my medical condition when I request FMLA leave?
A: An employer can require additional medical certification at its own expense. It may also have a health care provider contact your health care provider, with your permission, to confirm information in your medical certification. However, the employer may not seek additional information about your health condition or that of a family member. An employer may also require re-certification during the period of leave, as well as reports regarding the employee’s medical status and intent to return to work.

Q: If my spouse and I are employed by the same employer, how much FMLA leave can we each take for the birth of our child?
A: If you and your spouse work for the same employer, you may only take a combined total of 12 weeks FMLA leave for the birth, adoption or foster care of a child.

Q: Is my employer required to maintain my health benefits while I am on FMLA leave?
A: Yes, an employer is required to maintain any benefits you had or would have had if you had not taken FMLA leave. However, if you decide not to return to work when your leave ends, your employer can require you to reimburse him/her for the premiums he/she paid during your leave.

Q: How much notice am I required to give my employer to take FMLA leave?
A: If the need to take leave is foreseeable, employees are required to give 30 days notice to their employer. If you have a medical emergency, it may not be foreseeable or practical to give notice. However, if the leave is for planned medical treatment, the employee must try to schedule the treatment so as not to unduly disrupt the employer’s business.

Q: Can I collect unemployment insurance if I am on FMLA leave?
A: No, you may not.

Q: Am I guaranteed reinstatement after FMLA leave?
A: You have no greater right to reinstatement than you would have had if you had not taken leave. In other words, if your position is eliminated while you are out on leave, you do not have the right to be reinstated. However, this is only true if the elimination of your job is unrelated to your leave. For example, if you work in the accounting department and your employer decides, while you are on leave, to lay off the entire department and outsource the company’s bookkeeping needs, you are not entitled to reinstatement. But your employer cannot eliminate your position because you were out on leave. That would constitute retaliation against you for taking leave.