Can I Be Fired While On Disability Leave?

Can I be fired while I am on disability leave – what’s the deal?

Short answer – yes, but....

Can I be fired while I am on disability leave –but I’m on short term/long term disability leave?

Short and Long Term disabilities are not job protected.  But, there are cases where you may qualify for leave under the FMLA and/or the ADA.  The FMLA provides you with job protection, and the ADA protects you from discrimination on the basis of your disability.  We detail your protections under the FMLA and ADA below.

Can I be fired while I am on disability leave –isn’t it discrimination?

Not necessarily, but it might be.  There are plenty of legal reasons for an employer to fire you.  One reason may be that you are on leave indefinitely and that cannot be accommodated by the employer.  Another reason may be economic/business necessity.  Just because you were terminated and disabled/on leave is not enough – you need to prove that you were terminated because you were disabled/on leave.

The Americans with Disabilities Act (“ADA”) prohibits employment discrimination on the basis of disability (or perceived disability).  The ADA also requires the employer engage in an “interactive process” to determine whether your disability can be “reasonably accommodated.”  Sometimes, a leave of absence may be a reasonable accommodation – at a minimum, your employer is required to investigate/consider (i.e. engage in the interactive process) whether this is possible.

Ultimately, it comes down to why the employer made the decision to terminate.  If the decision is made because of your disability, it very well may be illegal.

Can I be fired while I am on disability leave –what about the FMLA?

The Family Medical Leave Act (“FMLA”) is a federal law that applies to employers that have 50 or more employees. Under the FMLA certain employees may take up to 12 weeks of unpaid leave for certain reasons, like a serious health condition.  Although FMLA is “job-protected” (meaning you should be returned to your prior or equivalent position), you can still be terminated while on FMLA if the reason is not related to the leave and is not otherwise not discriminatory.   If your employer can show that the decision to terminate is unrelated to the FMLA leave, it is legal.

I was fired while I was on disability leave - What should I do?

Call us!  Or e-mail.  We can help. 

Your Questions About Overtime Answered

Answers to some of the most frequently asked questions about overtime

How is overtime calculated?

Your overtime rate depends on your regular rate of pay.  Your overtime rate of pay is calculated by multiplying your regular rate by one and a half.  

  • Figure out your regular rate.
  • Multiply your first 40 hours in a week by your regular rate (straight time).
  • Multiply your hours beyond 40 in a week by 1.5x your regular rate (overtime).
  • Add your straight time to your overtime (if this does not match what you are actually being paid, call an employment lawyer).

What is my “Regular Rate”?

Your regular rate of pay is what you are paid for your first 40 hours in any given week.  It should be spelled out for you by your employer, but can get confusing if, for example, you are paid a weekly salary irrespective of hours worked.  A good rule of thumb is to calculate your regular rate of pay by dividing your weekly (pretax) wages by 40 hours.  This formula does not work in every case, but it is a good enough starting point. 

Am I eligible for Overtime?

The Fair Labor Standards Act (FLSA) divides workers into two categories:  exempt (exempt employees ARE NOT entitled to overtime) and non-exempt (non-exempt employees ARE entitled to overtime).  Employers frequently accidentally or deliberately misclassify their employees as being exempt when they are in fact not exempt from federal and state wage laws.

Generally under New York and Ohio overtime wage laws, all non-exempt employers must pay their employees time and a half (1.5x) pay for each hour spent working in excess of forty hours per workweek.

There is a complicated test to ascertain whether you fall into either category, but below are three general categories of workers that are considered exempt:

Can I Get Overtime if I am Paid a Salary?

Whether or not you are entitled to overtime depends on what you do – not whether you get a salary or not.  But, in any case, the first question is often whether you are truly a salaried employee. If any of these are true you may not be a salaried employee:

  • your pay gets cut if you miss part of the work day,
  • your paid time off is deducted from your leave bank or PTO,
  • you make less money when business is slow,

Even if you are salaried, you are still not exempt from overtime unless you also have exempt job duties. If you believe you have been incorrectly categorized, consult with an overtime lawyer.  Employers who are not sure how to categorize employees should talk with an overtime lawyer as well to make sure they are in compliance with all applicable overtime wage laws.

Why would my employer pay a salary if I am entitled to overtime?

Some employers often intentionally misclassify employees as exempt in order to save money.  Others just make mistakes.  Either way, they are breaking the law.

How can I recover unpaid overtime wages?

If your employer or former employer did not pay you time and a half for overtime and you are not exempt from federal and state wage law requirements, we can fight on your behalf to recover your unpaid wages.  An successful plaintiff in an unpaid overtime case may be entitled to recover liquidated damages, or double the amount you were underpaid, plus fees, costs and interest.

What should I do?

Contact an overtime lawyer.  You can call or e-mail us any time.  You will be speaking to an experienced lawyer well-versed in federal and state overtime laws today.

 

 

 

Can I Get Overtime Even Though I am Salaried?

Overtime and Salary

If you suspect that you are being denied some of your hard-earned wages, you should call or e-mail us today.  We have lawyers standing by.  You might be entitled to compensation - find out if you are.  All initial consultations are free.

Whether or not you are entitled to overtime depends almost entirely on what you do - not whether you are paid a salary or not.  Depending on your job function, you may or may not be exempt.  For more information on overtime exemptions, click here.   You are probably entitled to overtime (even if you receive a salary) if:

  • Your pay is reduced if there is no work; or
  • You receive less pay if you only work for part of a day; or
  • Your salary is docked because you missed a day (or more) of work.

If you are working a ton of hours for a salary, it is entirely possible that your employer is taking advantage of you by paying you a salary when you are entitled to overtime. Call us, get a consultation and make an informed decision.  You can be on the phone with an overtime lawyer today.

Why would my employer pay me a salary instead of hourly?

Employers often intentionally misclassify employees as salaried workers who are exempt from receiving overtime in order to save money. To be “exempt”, an employee must generally be an executive, administrative, or professional employee. Companies will try to fit employees into these categories even where overtime wage laws do not allow for it.

Some employers do not understand the difference between exempt and non-exempt employees.  These employers should talk to an overtime attorney to make sure they are following all applicable laws.

Call or email us today for a free consultation.  You can speak with a lawyer today.

Mutual Non-Disparagement Clauses in Severance Agreements

You may think you want a mutual non-disparagement clause in your severance agreement, but you probably don't need it.

Why You Should Never Sign a Severance Agreement Right Away

It has to be tempting to sign a severance agreement right away.  You were just terminated, you are probably wondering about how you are going to pay bills, make ends meet, find your next job, etc.  The severance you’ve been offered seems like a lifeline.  Maybe it is...

But You Should Never Sign a Severance Agreement Right Away.

Your severance agreement was written specifically to help your employer – not you.  Thus, your severance agreement makes you give up nearly every right you have under federal, state and city law, like claims for discrimination, breach of contract, defamation, unlawful termination, human rights violations, and certain wage payment laws.  The agreement may also prevent you from working for a similar employer, from contacting your former co-workers or clients, and making certain statements about the company.

Your employer also drafted the severance agreement to protect itself in the event that you breach.  For example, your agreement probably permits your employer to seek “injunctive relief” or to seek attorney’s fees in the event of a breach of the agreement (but does not permit you to seek attorney’s fees if the company breaches).

Your employer also drafted the severance agreement with an offer of payment.  That offer may not properly value the claims you are giving up, your contribution to the company, or your personal circumstances.  When I used to advise companies about how to draft severance agreements, I would always give them the following advice:

“You should offer the minimum amount that this person would accept to shut up and go away forever.”

Still Think You Should Sign Right Away?

Why not speak to a severance lawyer?  Granovsky & Sundaresh specializes in severance agreements.  We offer two services in this regard.  First, we can review your agreement with you paragraph-by-paragraph to make sure that, at a minimum, you are an educated consumer.  For some clients, however, we also negotiate severance.

Our Pricing For These Services is 100% Transparent:

  • For review and consultation, we charge a flat fee - $600.  This fee includes a complete review of your agreement, assistance with revising the agreement if necessary, and a bank of time for issues that arise in the future (e.g., if a non-compete issue comes up in the future, we will consult with you on this as well).
  • For negotiation of severance agreements, we charge a contingency fee of 1/3 of the monetary improvement we attain for you.  There is no fee unless we improve your severance.

Yes, You May be Able to Improve Your Severance

We specialize in negotiating severance agreements.  We have improved our clients’ severance agreements in 91% of our cases (as of April 1, 2017).

You owe it to yourself and to your career to understand and improve your situation. 

Contact us today.  Call 646-524-6001. You will be speaking to an specialized severance attorney within 24 hours.

Work Off The Clock Must Be Compensated

If you work off the clock – you have to be paid for it.  It is just that simple.

Examples of work off the clock includes the below (and more).  If you believe that you are performing work off the clock – and not getting paid, contact us today.  Generally speaking, you are entitled to pay for all time during which you are subject to the control of the employer.

  • Pre-shift meetings;
  • Startup activities, like “opening” a store or restaurant, starting up computers or other equipment;
  • Calls, voicemails, e-mails, and texts while you are off the clock (like at home or commuting);
  • Closing activities like locking up, shutting down equipment, etc.;
  • Clocking out for short breaks;
  • Being required to clock out for travel time when the travel is related to your work;
  • Being required to put on special uniforms.

Other issues related to work off the clock include:

  • Failing to pay employees for the entire time they are performing work, not just the time they are “clocked in”;
  • Automatically deducting a meal period from an employee’s hours when no meal period was actually taken;
  • Deducting break time(s) from an employee’s work hours;
  • Not paying for unanticipated time – like when an employee has to return to work;
  • Requesting that employees work on some nights or weekends without clocking in; and
  • Failing to compensate employees who bring work home and continue to work outside of their “regular” workday.

If you believe you or someone you know is not being paid for every hour they work, please do not hesitate to contact us and discuss your potential claim.  We generally work on a contingency fee basis – meaning we only get paid if you get paid.  Contact us today by email or call 646-524-6001

Checklist for Negotiating Severance Agreements

Our firm specializes in negotiating severance agreements for recently terminated employees.  We’ve negotiated severance agreements all over the country from our offices in New York City and Cleveland.  Since we formed our firm, we have improved severance for over 93% of our clients.  You can read our reviews on Google, Avvo, and Yelp.

When we talk to our clients about severance, we generally go through the below checklist.  We don’t always discuss every bullet point with every person, but this should provide a general overview. 

·         Is it Fair?  Here’s the basic transaction:  in exchange for severance (money) the company is getting you to promise not to sue them (and sometimes a bit more).  Are you getting fair value for your promise?  That depends on what your promise is worth – in dollars and cents.  It also depends on common sense.  How much did you give your company in blood, sweat and tears?  Is that being valued (it does not have to be – but it should)?   We work with clients to help them better understand if their offer is fair and help them work towards a more equitable deal whenever possible.

·         Reason for Termination.  This is a big one.  If you believe that the company terminated your employment for an illegal reason (e.g. discrimination, retaliation, etc.), the claims that the company is asking you to release can be quite valuable.

·         Potential Claims.  Like your reason for termination, if your employer violated the law, you have viable claims against the country.  We discuss whether each employee was properly compensated for all time worked, and also explore whether the employee has viable claims under OSHA or Dodd-Frank.

·         Confidentiality.  Map out what is and what is not confidential.  While a company certainly wants to keep its trade secrets (and secrets generally) private, you need to be free to describe your work to potential employers, etc.  Plus there may be certain aspects about your employment that you want to be kept confidential.

·         References.  Severance is about your future, so working out how your references are going to be handled is critical.  A neutral reference usually covers this, but, sometimes, you can iron out a reference letter from your former employer which you can then present to potential employers.  These are fairly rare, but that does not mean you should not look into it in certain circumstances.  Here is an article on neutral references.

·         Personnel File.  You may want an opportunity to review and/or copy your personnel file for your records.  A personnel file would typically contain information about your pay, benefits, and performance.  Even if you cannot get access to your entire file, there may be some information about your employment (salary, benefits, accrued vacation, etc.) that you may want to know.  Think through what information you want.

·         Return/Retention of Company Property.  Most severance agreements require employees to return all company property.  But what if you’ve grown attached to your company-issued laptop or smartphone?  Do you have important personal information on your work e-mail account?  Think through what you might want to keep.

·         Restrictive Covenants.  As noted above, severance is about your future.  Restrictive covenants (non-competes, non-solicits, etc.) can have a major impact on what you are allowed to do after your employment has ended.  If you are subject to a restrictive covenant, your severance agreement may be a good place to revisit the issue.  But you have to be delicate when you address this issue – nothing says “I intend to compete with the company” quite like saying “I want to talk about my non-compete agreement.”

·         Other Pay.  Don’t leave any money on the table.  Make sure all of your earned wages, commissions, vacations, sick leave, etc. have been paid.  Figure out your pension, 401K and benefits.  Make sure that you get everything that you’ve earned.

·         Stock Options.   When are your stock options exerciseable?  Separation from the company may accelerate the time.   Also, if you have acquired stock, majority shareholders may owe you a fiduciary duty to disclose material info about the company stock. You may be able to force the company to repurchase the stock.

·         Future Relations.  Can the company hire you back?  Can you be a consultant, or independent contractor for the company?  Does getting another job (with the company or another company) impact your severance? 

·         Taxes.  Talk to an Accountant.  Figure out how your severance is going to be taxed.    Typically, severance payments are taxed as wages, but not always.  Clever accountants are great at coming up with creative solutions to tax issues related to severance.

If you think you might want to talk to a lawyer about negotiating your severance, please contact us – this is what we do.

What is Disability Discrimination in New York?

What is Disability Discrimination in New York?

What Laws Apply to Disability Discrimination in New York?

If you work in New York, you are protected from disability discrimination at the workplace by both federal and state law – the Americans with Disabilities Act (ADA) and New York State Human Rights Law (NYSHRL).  If you work in New York City, you have an added layer of protection under the New York City Human Rights Law (NYCHRL).

What are Your Rights?

Discrimination on the basis of disability is illegal.  If you have suffered an adverse employment action (e.g., you have been fired, laid off, suspended, subjected to a hostile work environment, demoted, etc.) and you believe that your disability played a role in the decision to take such adverse employment action, you should contact an employment lawyer. 

How is a Disability Defined?

ADA

Under the ADA, to qualify as “disabled,” a person must have “a physical or mental impairment that substantially limits one or more major life activities of such individual,” have a “record of such an impairment,” or be “regarded as having such an impairment.”

In 2008, the ADA Amendments Act was passed and added the following guidance to how “disability” should be defined such that:

·        “The definition of disability in this chapter shall be construed in favor of broad coverage … to the maximum extent permitted by [law].

·        “An impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability.”

·        “An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.”

·        “The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures such as (I) medication, medical supplies, equipment … prosthetics … hearing aids and cochlear implants … mobility devices, or oxygen therapy equipment and supplies; (II) use of assistive technology;  (III) reasonable accommodations or auxiliary aids or services; or (IV) learned behavioral or adaptive neurological modifications.”

What is a Major Life Activity?

“[M]ajor life activities include … caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.”

The term “major life activity” “also includes the operation of a major bodily function, including … functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.”

What is it to “Be Regarded as Having an Impairment”?

“[a]n individual meets the requirement of ‘being regarded as having such an impairment’ if the individual … has been subjected to [discrimination] … because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.”

NYSHRL

The NYSHRL defines disability as “ (a) a physical, mental or medical impairment resulting from anatomical, physiological, genetic or neurological conditions which prevents the exercise of a normal bodily function or is demonstrable by medically accepted clinical or laboratory diagnostic techniques or (b) a record of such an impairment or (c) a condition regarded by others as such an impairment, provided, however, that in all provisions of this article dealing with employment, the term shall be limited to disabilities which, upon the provision of reasonable accommodations, do not prevent the complainant from performing in a reasonable manner the activities involved in the job or occupation sought or held.”

Note that this definition is a bit more limited than the ADA because it requires an employee to show that his or her disability can be reasonably accommodated.  On the other hand, the definition is a bit broader in that it does not exclude temporary or transitory conditions.

NYCHRL

The NYCHRL offers the broadest definition of disability.  Under the NYCHRL, disability is defined as “any physical, medical, mental or psychological impairment, or a history or record of such impairment.”

Physical, Medical, Mental or Psychological Impairment

“Physical, medical, mental, or psychological impairment” is defined as “an impairment of any system of the body; including … neurological … musculoskeletal … sense organs and respiratory organs… cardiovascular … reproductive … digestive and genito-urinary … hemic and lymphatic … immunological … the skin … endocrine system … or a mental or psychological impairment.”

What Damages Are Available?

Plaintiffs can recover damages for the following: reinstatement, compensatory damages (damages to compensate the employee for lost wages), punitive damages (damages to punish the employer for its act(s) of discrimination), injunctive relief (a court order forcing the employer to do – or not do – something), attorneys’ fees (the amount that a Plaintiffs’ attorney would be paid based on a reasonable hourly rate and the amount of time put in by the attorney) and costs (hard costs for litigation, e.g., filing fees, depositions, court costs, photocopies, mail, etc.).

What Other Laws Are at Play?

Wage Payment Laws – Are you sure you are being paid for all of your time worked?  Even if you are paid a salary or have a “manager” or “supervisor” title, you may still be entitled to overtime or other wages.  The laws at play here are the federal Fair Labor Standards Act (FLSA) and the State New York Labor Law (NYLL)

Workers’ Compensation – If you suffered an injury at work, you may have a workers’ compensation claim.

Medical Leave Laws – Certain employees are entitled to unpaid leave under the federal Family Medical Leave Act (FMLA).  If you suffer an adverse employment action based upon taking or requesting leave (for yourself or a family member), you may have a claim under the FMLA.

What Should You Do?

If you have suffered an adverse employment action, and you believe that it is related to your physical condition and/or disability, you should absolutely call an employment lawyer.  We respond to all inquiries within 24 hours and offer free initial consultations.  Contact us today.

Granovsky & Sundaresh PLLC Can Help

Granovsky & Sundaresh is a boutique labor and employment law firm with offices in New York City and Cleveland that helps employees with all aspects of employment law.  Our practice specializes in discrimination, severance negotiations, employee wages, medical leave and non-compete/non-disclosure agreements.  We offer free consultations and have a proven track record of results.  If you need help, call us to set up a free consultation today.

Why Hire a Lawyer When I Can Get Free Employment Law Forms Online?

A lot of people avoid paying an attorney for employment law forms in favor of getting free forms online.  The advantage of this is obvious – it’s cheaper.  But this tactic is penny wise and pound foolish – you save money in the short term, but it might cost you a lot more in the long term.

There are two reasons that employers use certain forms:  (1) because the employment law forms are legally mandated (like certain wage forms in New York) or (2) to protect the company in case something goes wrong down the road.   While it is definitely cheaper to pull your documents off a website, if you want to accomplish (1) or (2), you are probably doing yourself a disservice.

Using Free Online Employment Law Forms Because They Are Legally Mandated

Using free online forms to fulfill your legal obligations as an employer is dangerous.  First, unless these forms come from a highly reputable website (like an official government website), you have no way of knowing if the document complies with the law or not.  Employment laws are constantly changing.  The employment law form you get online may no longer be legally compliant – or perhaps it was never compliant to begin with. 

Second, most employment law forms are state-specific.  What satisfies the law in one state may not in another.

Third, without an experienced employment lawyer on your side, how are you going to know that you’ve accumulated all the documentation that you need? 

Finally, even if you get a legally compliant document, you may need guidance in precisely how to fill out the form to best suit your business’s needs.

Using Free Online Forms to Avoid Future Litigation

If you are using employment law forms in order to avoid litigation, it would be very foolish to use free forms that you find on the internet.  If you use an outdated or unenforceable employment law forms, not only is your document unreliable and unenforceable, it may actually create liability for your business.  Examples abound – a poorly drafted offer letter can be read as a contract, an overbroad non-compete might invalidate an entire agreement, an otherwise discretionary bonus might become mandatory.  Worst of all, you might use a document you found online which violates your state’s wage and hour laws.

The whole point of using employment law forms to avoid litigation is to be prepared in the event things go wrong.   And when things go wrong is precisely when you need to have an attorney available.  Here, even a legally compliant free online form leaves you out on a limb. 

Hiring an Attorney to Prepare Your Employment Law Forms

More often than not, you are better off hiring a law firm.  Yes, it costs money – but, as with all things, you get what you pay for.  Besides, it is probably less than you think – we offer flat fees and transparent pricing. 

If you hire an attorney, you know that your employment law forms are legally compliant.  You also know that the documents you use will be customized to suit the unique needs of your business.  Employment law is not a one-size-fits-all business.  Every business is different, and the documents that each business uses, like employee handbooks, can and should be customized.  Also, when you hire an attorney, you can make smarter decisions about what your business actually needs.  For example, most business owners think that they want non-compete agreements, when what they really need are non-solicit agreements (and many don’t even know the difference between the two).   Third, if something ever does go wrong down the road (and something always goes wrong), you know who to call.  Follow-up is a critical part of our practice.  If you have a problem, you can speak to one of our attorneys, probably the attorney who drew up your documents personally.  Every client who hires us to prepare their employment law forms gets a bank of hours to use for follow-up. 

Contact us today for a free initial consultation.