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Daniel Nicholas Janich

Daniel Janich’s Answers

3 total

  • Misclassified employee needs unemloyment benefit help.

    I was terminated in March 2009 and was misclassified as an independant contractor for 5 years. Can I file for unemployment in Florida? Is there a deadline to to file by?

    Daniel’s Answer

    Assuming that the deadline has not yet passed, you can file for unemployment, but you are likely to be told that you are not eligible because you were considered to be an independent contractor. If you want to challenge your classification as an independent contractor, you should contact the Internal Revenue Service and assert that your former employer had failed to withhold federal and state taxes from your wage payments. This may start an investigation into your employer's classification of you and other workers as independent contractors. It may result in a ruling by the IRS that you were improperly treated as independent contractors for wage withholding purposes. This will not automatically entitle you to unemployment benefits but might help you overcome your employer's stated position for refusing to grant such benefits to you through the state employment security agency.

    Any investigation by the Internal Revenue Service would take time to complete. Therefore, assuming it is not already too late, I would suggest you consider filing for unemployment benefits now. If you are refused on the basis that you were an independent contractor, you should find out how long you have to appeal this determination. If necessary, you should pursue your administrative appeal on a timely basis. Perhaps you can request after you file your administrative appeal that it be suspended pending resolution of your IRS investigation regarding the classification of your status as an independent contractor.

    I cannot advise you whether the deadline for filing for unemployment benefits has already passed (or may soon pass) in Florida. I can only suggest that you contact the local office of the state agency right away to find out for yourself.

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  • Regarding: Employment Separation Agreement and General Release My employment ended May 26, 2009; involuntarily termination

    In exchange for 12 weeks Separation Pay: I released and forever discharged the company from any and all costs, or expenses, charges, claims, suits, demands, actions and causes of action, in law or in equity, arising out of, or in any way connected...

    Daniel’s Answer

    Kim: Not likely. You should contact the local office of the state employment security agency to file for unemployment benefits as soon as possible. Whether the release that you signed would prevent you from collecting benefits from your former employer may depend upon Texas state law. Many states expressly state in their statutory provisions that a release of employment claims will not preclude one from obtaining unemployment benefits to which an employee may otherwise be entitled to receive. Whether Texas has addressed this issue is not something that I can advise you on. If you had an attorney review your separation agreement prior to your signing it, you should raise this issue with him or her. If you did not employ an attorney prior to signing the separation and release agreement, and you cannot afford to do so, you can contact the state or city local bar association for a referral. Often the separation agreement itself will expressly exclude from waiver any rights that you may have to seek unemployment benefits in the future. If you are comfortable reading (and understanding) the legalese language used in such agreements, you may want to review it now. It may help you answer your question.

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  • Insurance benefit cancelled

    can an employer revoke or allow employee health insurance coverage to lapse without notifying employee(s) and at least offering employee(s) the option of enrolling in cobra?

    Daniel’s Answer

    What is not clear from your question is whether your employer's health coverage terminated for all employees or just for you. Assuming that the question pertains only to an individual loss of coverage, what were the reasons why your coverage terminated? When did it terminate -- while you were still employed with the company or after you terminated your employment? Were you required to pay any portion of the monthly premiums for your health coverage while you were employed? If so, did you pay premiums for coverage that was not provided to you and/or your family? If you were misled into believing you had health coverage during your employment when, in fact, you did not, you may be able to assert a liability claim against your employer that is based upon the amount of any health care costs you incurred and paid out of pocket which would otherwise have been covered by your health plan had your coverage not been improperly terminated.

    Assuming that your employer was not exempt from providing COBRA coverage as a small employer, COBRA is required to be offered when one or more specific triggering events occur, for example, such as a loss of employment or significant reduction in hours of employment. If you were no longer covered by your health plan when a COBRA triggering event occurred (due to some failure on your part rather than because you were misled as to your coverage during your employment), there would be no obligation to extend to you any COBRA coverage. Employees who are offered COBRA coverage are generally required to pay 102% of the premium for monthly coverage. If you were offered COBRA and did not pay the premium on time or in full, the employer (and insurer) would have no further obligation to provide you with health coverage. If your employer had dropped health coverage altogether for all employees (and is not affiliated with another company that is still providing health coverage to its own employees), there would be no obligation to offer you or any other employee with COBRA coverage.

    Unfortunately, there just are not enough facts given in your question to provide you with an adequate and full response to your inquiry.

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