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Todd Christopher Werts

Todd Werts’s Answers

10 total

  • I have been off work on FMLA since 2/22/2011. I must return by 5/16/2011 or I will be termianted; This I understand.

    I am currently an assistant Manager. When I return there is a very could chance I will have to take a lesser position because I am unable to walk alot due to COPD. When I was promoted three years ago to Assiatnt Manager I was making $15.50 per hou...

    Todd’s Answer

    The answer to this question is a little subtle. Under the FMLA, the employer is required to return you to the same, or essentially the same, job as you had prior to the leave unless (1) you are a key employee; or (2) you can no longer perform one of the essential duties of the position. See 29 CFR 825.214.

    To quote the regulation, "A “key employee” is a salaried FMLA-eligible employee who is among the highest paid 10 percent of all the employees employed by the employer within 75 miles of the employee's worksite." 29 C.F.R. 825.217(a). If you are a key employee, then the employer may be able to deny your return to the same job in order to prevent grievous economic harm. See 29 C.F.R. 825.216(b) for more information on this point.

    From your description, it sounds like the second issue may be the more important one. If you are not able to perform an essential function, then the FMLA may not guarantee your return to the same position. However, the Americans with Disabilities Act ("ADA") may come into play if you have a serious health condition that impacts a major life activity. COPD may very well qualify -- I have never analyzed that particular illness, but it sounds like it might.

    I will attach a link to this answer to a guide a I put together a couple of years ago on the ADA that may help you think about this issue.

    I hope this helps.

    Todd C. Werts
    Lear Werts LLP
    2003 W. Broadway, Ste. 107
    Columbia, MO 65203
    http://www.learwerts.com

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  • Fired by a company due to an erroneous error made by the 3rd party background check company. Lost pay, grained stress. HELP!!!!

    Was working at a company for 15 years, got laid off due to merger with another. Got laid off, then hired by the company who took over the company I used to work for. Worked their for 2 months and then background check came back from the 3rd part...

    Todd’s Answer

    The Fair Credit Reporting Act probably provides a remedy in this situation. Under the FCRA, you probably have a claim against both the background check company and whatever consumer reporting company provided them the information on the misdemeanor. Consumer attorneys are who typically handle FCRA claims because this is the same law that governs the use of credit reports.

    The damages available, and the details of the claim, will depend on whether this is a negligent violation or intentional. The statute sets this out. I am also posting a link to the Federal Trade Commission's page on the FCRA.

    Best bet is to talk to an attorney with experience in consumer law and FCRA cases. The National Association of Consumer Advocates is a good resource for this sort of thing.

    I hope this helps.

    Todd C. Werts
    Lear Werts LLP
    2003 W. Broadway, Ste. 107
    Columbia, MO 65203
    http://www.learwerts.com

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  • Do we need to pay an employee for their wages at the time of termination?

    We terminated an employee but was unsure of what we had to do about the hours already worked. We had just statred our new pay period. We would like to give them severence but wasnt sure if it was ok to wait till the pay period was ended.

    Todd’s Answer

    Under the statute, Mo. Rev. Stat. 290.110, the final paycheck is due and owing on the date of discharge. However, there is not a penalty for waiting to the next pay cycle to issue the payment, unless the employee makes a written request for the payment. If a written request is issued, then the payment must be made within 7 days of the request or the penalty accrues.

    The penalty is that the employee is owed an additional amount of wages, calculated as though he or she was still working, up through the date of payment (60 days maximum).

    Here is the text of the staute:

    290.110. Whenever any person, firm or corporation doing business in this state shall discharge, with or without cause, or refuse to further employ any servant or employee thereof, the unpaid wages of the servant or employee then earned at the contract rate, without abatement or deduction, shall be and become due and payable on the day of the discharge or refusal to longer employ and the servant or employee may request in writing of his foreman or the keeper of his time to have the money due him, or a valid check therefor, sent to any station or office where a regular agent is kept; and if the money or a valid check therefor, does not reach the station or office within seven days from the date it is so requested, then as a penalty for such nonpayment the wages of the servant or employee shall continue from the date of the discharge or refusal to further employ, at the same rate until paid; provided, such wages shall not continue more than sixty days. This section shall not apply in the case of an employee whose remuneration for work is based primarily on commissions and whose duties include collection of accounts, care of a stock or merchandise and similar activities and where an audit is necessary or customary in order to determine the net amount due.

    I hope this helps.

    Todd C. Werts
    Lear Werts LLP
    2003 W. Broadway, Ste. 107
    Columbia, MO 65203
    http://www.learwerts.com

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  • Can an employer refuse payment of earned commission to a terminated employee?

    I was recently fired from a local lawn care company and when I received my last paycheck they did not include the commission from sales I had made. I called them and they said it was a company policy that terminated employees did not receive final...

    Todd’s Answer

    The answer to your question varies by state, but in most states the answer to your question will turn on when the commission is "earned." Missouri has a statute that sets out the rules for when a commission is earned, but I believe that Missouri's system is somehat common.

    If you have a contract or an agreement that sets out when the commission is earned and due, then that agreement will probably control. In the absence of a specific agreement, the default rule in Missouri is that commissions are earned when the product or service being sold is delivered, or when the employer is paid in full for the product or service. Ultimately, this means that commissions are not earned in Missouri when the contract is signed or the sale is originally made (unless there is an agreement that specifically spells this out).

    So, if you did not have a specific agreement as to when commissions were earned and you had made sales but neither delivery or payment had been made when you were fired, then (in Missouri) your commission would not be earned at the time of firing. In Missouri, if the Commission had not been earned, then you would not be able to file suit for the commissions.

    On the other hand, in Missouri, if the Commissions are earned and not paid, then the statute provides a potentially substantial amount of "statutory damages" for the employer's failure to pay the commissions.

    You should talk to a Colorado lawyer to see what the answer is in your situation.

    I hope this helps.

    -Todd

    Todd C. Werts
    Lear Werts LLP
    2003 W. Broadway, Ste. 07
    Columbia, MO 65203
    http://www.learwerts.com

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  • Where is the FLSA citation for equal work equal pay regardless of race or gender? Can a control board supercede this law in NYS

    As you know teachers lost their battle to be put on the correct step in Buffalo. The control board supposedly superceded the contract. But my question is can a teacher with same education and same experience continue to earn up to a four step di...

    Todd’s Answer

    I don't know the answer to your second question, but the citation for the Equal Pay Act within the FLSA is 29 U.S.C. sec. 206(d):

    (d) Prohibition of sex discrimination
    (1) No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to
    (i) a seniority system;
    (ii) a merit system;
    (iii) a system which measures earnings by quantity or quality of production; or
    (iv) a differential based on any other factor other than sex: Provided, That an employer who is paying a wage rate differential in violation of this subsection shall not, in order to comply with the provisions of this subsection, reduce the wage rate of any employee.
    (2) No labor organization, or its agents, representing employees of an employer having employees subject to any provisions of this section shall cause or attempt to cause such an employer to discriminate against an employee in violation of paragraph (1) of this subsection.
    (3) For purposes of administration and enforcement, any amounts owing to any employee which have been withheld in violation of this subsection shall be deemed to be unpaid minimum wages or unpaid overtime compensation under this chapter.
    (4) As used in this subsection, the term “labor organization” means any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.

    I hope this helps.

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  • Can i file for pain and suffering in small claims court for an assault on me and can they take it from his social security check

    i was assaulted at work

    Todd’s Answer

    The answer to the first part of your question will vary from state to state. Unfortunately, I do not know the "Ohio-answer," but in Missouri, you would be able to bring a claim for your pain and suffering in the Small Claims Division. Your claim would be limited to the $3,000 jurisdictional cap of that court. In Missouri at least, Small Claims can usually be brought without an attorney and, for better or for worse, are a simpler procedure.

    For an injury like you have described, you really probably should talk to a local personal injury attorney to see if there may be other avenues of recovery that can be explored. Most personal injury attorneys will not charge for the initial consultation and yours sounds like a fairly bad injury.

    As for the second part of your question, I believe that Social Security benefits are generally exempt from garnishment or attachment in all 50 states. I can only speak for Missouri and Kansas with certainty, but I am pretty sure this is true universally. The only exception to the general rule that you cannot garnish Social Security that I am aware of is for child support obligations. Child support obligations can sometimes be taken out of Social Security -- depending on the exact type of Social Security at issue.

    I hope this helps.

    -Todd

    Todd C. Werts
    Lear Werts LLP
    2003 W. Broadway, Ste. 107
    Columbia, MO 65203
    T: 573-875-1991
    F: 573-875-1985
    werts@learwerts.com
    http://www.learwerts.com

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  • Lawyers I hope this question is not stomping you? Do I have to attend meetings while out on FMLA? Where are you guys?

    I went on FMLA effective 3/10/11. I received a email from human resources and my program coordinator,"telling me" that I have a mandatory meeting on 3/14/11. They're pissed I went on leave plus I just recently won a decision vs my employer at a ED...

    Todd’s Answer

    The FMLA can be deceptively complicated, so it is sometimes hard to answer a simple question like yours. As always, the details matter. But generally speaking, if you are on an approved FMLA leave, then you are excused from work. I believe this would extend to a "mandatory meeting."

    So long as you are a qualified employee under the FMLA (meaning that your employer is big enough, you have worked for the employer long enough, and you have worked enough hours) and your situation qualifies for the leave, then you should be excused from all work-related responsibilities.

    One caveat to this is if the meeting is for the employer to get information about the serious health condition that this causing your need for leave. Under the FMLA Regulations, an employer has certain rights to information about your illness. It is important that you cooperate with the employer's information requests as required by the regulations.

    Another issue would be if the employer classifies you as a "key employee." Key employees are certain critical employees who sometimes have less rights under the FMLA than others.

    There are other "landmines" that might effect your situation. I would recommend that you visit with an attorney if you want stronger answer before you skip the meeting. Of course, if you have already decided to skip the meeting, then you may not need to talk to an attorney until you know what the fallout will be.

    I hope this has helped.

    -Todd

    Todd C. Werts
    Lear Werts LLP
    2003 W. Broadway, Ste. 107
    Columbia, MO 65203
    http://www.learwerts.com

    See question 
  • Wreck at work with injury

    i had a very bad accident at my work where i lost brakes and then lost control of my truck. i had 3 passengers and 2 went by lifestar and me and the other wer transported by ambulance. i have hired an attorney but i was told i cant sue my boss eve...

    Todd’s Answer

    I am sorry to hear about your accident. The answer to your question is going to vary widely by state, but I will give you some information about the analysis in Missouri.

    Under the current state of Missouri workers compensation law, you might be able to bring an individual claim against your boss for the car crash under a "co-employee liability" theory -- it would depend on whether the boss is operating the company as a sole proprietorship or as a corporate entity. If as an organized corporate entity, then you can argue that the boss is also an employee of the business.

    Under the co-employee liability theory, the workers compensation "shield" no longer extends to employees of the "employer." Accordingly, an injured worker can bring the workers compensation claim against the employer and also bring a negligence action against the employee whose negligence caused the crash. There can be a complicated question of insurance coverage, but in a situation like yours, you might be able to make the claim work.

    As for the second part of your question, insurance proceeds will depend on what claims you are able to put together. You might be able to bring a claim for MedPay or PIP (personal injury protection) depending on the insurance policies at issue.

    I hope this helps.

    -Todd

    Todd C. Werts
    Lear Werts LLP
    2003 W. Broadway, Ste. 107
    Columbia, MO 65203
    573-875-1991
    http://www.learwerts.com

    See question 
  • Can an employer withhold commissions earned while employed, after employee has left the company?

    100% commissioned employee.

    Todd’s Answer

    This is a question that varies by state, but in Missouri, there is a statute that outlines the process. Missouri Revised Statutes section 407.911-.915.

    The question turns on whether or not you had a written contract defining when the commission was due. If so, then the contract controls. If not, then the statute says:

    "If there is no written contract, or if the terms of the written contract do not provide when the commission becomes due, or the terms are ambiguous or unclear, the commission shall be paid when the product or service is delivered and accepted by the purchaser or the principal receives satisfaction in full." Mo. Rev. Stat. sec. 407.912.

    The statute then goes on to say that when the employee's job is terminated, that all commissions due at the time of the termination must be paid within 30 days.

    From this, you (or you and an attorney) will need to figure out whether there are unpaid commissions. If there are, then, section 407.913 kicks in which allows the recovery of actual damages (i.e., the amount of the unpaid commissions), plus an additional amount calculated as though the employee was still working for the employer. Attorney fees and costs are also available.

    I hope this helps.

    -Todd

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  • Overtime / workplace compensation

    I worked for a large online retail company based in PA. I was a salaried employee. Problem was we were asked to very routinely, put in 10 / 11 hr days. We got a 30min. lunch and on top of that...were asked to work weekends with no additional co...

    Todd’s Answer

    Unfortunately, the answer to your question requires a little more information. Just because an employee is paid on a salary basis does not mean that the employee is exempt from the overtime provisions of the Fair Labor Standards Act (FLSA). If an employee is not exempt (often referred to as "non-exempt"), then the employee is entitled to overtime at the rate of 1.5 times the regular rate for all hours over 40 in workweek. If the employee is exempt, then the overtime requirements do not apply and the employer can usually require an exempt employee to work as much as is needed.

    The main question to be answered in this situation is what type of work are you doing. There are a number of exemptions that could apply depending on what your primary duty was.

    For example, if you regularly managed two or more employees or were in charge of a specific part of the company, then the management/executive exemption might apply.

    If you had discretion to deal with certain issues with the company, then the administrative exemption might apply.

    From what you said in your question, the issue may be the Outside Sales Exemption. Typically, a salary is not a requirement of this exemption, but outside sales employees often have a salary component to their pay. The main issue with outside sales employees is whether or not they are making "sales" (a term with a particularlized definition under the FLSA) or whether the employee is only doing promotional work -- this issue often comes up with pharmaceutical sales people.

    The reimbursement of mileage question will depend on the particularities of Arizona state law. The fact that they pay mileage from corporate to a location, but not from your home sounds like an application of the portal-to-portal rules for timekeeping (i.e., an employer does not have to pay you to commute to and from work).

    In this situation, you should either talk with a wage and hour attorney about whether you are properly exempt. To research it some more yourself, check out the U.S. Department of Labor's "Fact Sheets." There is a fact sheet for each exemption that will point you in the right direction.

    I hope this helps.

    -Todd

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