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Nathaniel James Hill
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Nathaniel Hill’s Answers

60 total


  • Can my employer change my schedule when I return to work on intermittent FMLA?

    For the past month I have been out on FMLA, which has infuriated my employer. I am returning to work with intermittent FMLA, however my employer is refusing to let me work my same scheduled days that I have worked for the past few years, and has p...

    Nathaniel’s Answer

    Following your leave, the FMLA requires your employer to restore you to the same or similar position. While slight schedule changes or modifications are permitted, wholesale changes are apparently making this an entirely different position than the one you left before your leave. The failure to give you your same or similar job back is an act of "interference" with your FMLA rights.

    Similarly, if the changes are to induce you to resign or withdraw your intermittent schedule, it may be either interference or retaliation. Interference is when the employer does not give you what the law requires. Retaliation is taking adverse action against you because you availed yourself of your FMLA rights.

    Your question how to address the situation is difficult to answer. Employers do not respond well to an employee informing them that it is violating the employee's rights. If the situation gets so intolerable you feel compelled to resign, you may have what is called a "constructive discharge" claim that incorporates the interference and retaliation claims above. It is treated similar to an actual termination, but may have additional requirements that you ask the employer to fix the problem before you resign.

    In any event, I recommend meeting with an experienced employment attorney in your area.

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  • I was fired due to health issues, Dr wrote me off for 2 weeks, can they fire me?

    My work knew I had a bad knee. I explained that I have a dislocated patella, they said they don't offer personal leave and said they could not hold my position and asked me to see if I could get a wheelchair, however I have to go up stairs to ge...

    Nathaniel’s Answer

    There may be two potential claims depending on the size of the company. (1) If the company has at least 15 employees, it must comply with the Americans with Disabilities Act ("ADA"). Under the ADA, the employer must work with you to see if you can still perform your job with an accommodation. Accommodations may include time off and accessibility improvements at the facility. To have fired you without ever engaging in this process may be a violation of the ADA.

    (2) You may also have a claim under the Family and Medical Leave Act ("FMLA") if there are at least 50 employees in a 75 mile radius, and you have worked there for at least 12 months and worked 1,250 hours. If you only recently started working, or there are not at least 50 employees within 75 miles, the employer does not have to offer you medical leave. However, if these conditions are present, the employer's refusal to offer you FMLA leave may be a violation of the FMLA.

    I recommend discussing these issues with an experienced employment attorney.

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  • Does my employer have the right to NOT give me my personal file after I have been fired if I request a copy of it?

    I was recently fired from my job. I have been doing research on whether or not I have a wrongful termination case on my hands. I was under the impression that if I requested a copy of my personal file, such as any document that was put in my file ...

    Nathaniel’s Answer

    Unless your employer is a public entity, you are not entitled to your personnel file. If it is a public entity, you can obtain your personnel file via a Freedom of Information Act request. If the employer is not a public entity, you will be required to file a lawsuit where you may get a copy of the file as part of the "discovery" process. This creates the obvious paradox of whether you decide to file a lawsuit rests upon review the file that you cannot get unless you file a lawsuit. Employers, especially big business employers, notoriously withhold personnel files absent the legal obligation of a lawsuit. Even then, parts of your personnel records are withheld because they claim reports were prepared about you in anticipation of litigation or were communications about you to legal counsel.

    You should consult with an experienced employment attorney regarding your potential wrongful termination claims. An ounce of good advice is worth a pound of headache if you are considering a claim against an employer.

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  • Can an employer refuse to hire a potiential canidate due to a current employees feelings toward the new hire?

    I moved back to Wickenburg and placed in 3 resumes and applications to: Mobile gas station (Dairy Queen), Pizza hut, and the Meadows. Pizza hut's Store Manager threw a fit (witnessed by several employees) and told the regional that she would not h...

    Nathaniel’s Answer

    Based on the scenario you described, there are no potential claims for failure to hire. Arizona is an at-will employment state. An employer may refuse to offer employment for any reason that is not illegal. Not hiring you because of someone's feelings about you, your last name, or not wanting "drama" is not illegal. If there is more that is not being stated, it may be a different story. If they don't like you because of your race, then you may have a claim. If you last name is a common name originating from another country or culture, then you may have something (e.g., they over-generalize that they can't tell a difference between you and someone who has a restraining order because "all people" from this country have the same last name). However, unless there are more facts than those stated, I do not see any potential claims.

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  • Can I sue my previous employer for wrongful termination?

    I was fired a year ago from my job after I left my post to report a second incident of harassment by my supervisor.

    Nathaniel’s Answer

    You may have lost your claims due to a lapsed statute of limitations. In Arizona, claims for wrongful termination are lost if you do not file a lawsuit within one year from the date of termination. If the harassment you are referring to was related to your gender, race, religion, national origin, etc., then you would have needed to file a charge of discrimination with the EEOC within 300 days of the termination. If you are already passed these time periods, your claims may be lost regardless of their merits.

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  • Can I sue someone that made false allegations and filed false documents to AZ State Medical Board? Former employer is currently

    under investigation by the State Board for submitting falsified documents with the intent to discredit and destroy my career. The former employer is the president and owner of a large medical business in Arizona. He submitted, testified under oath...

    Nathaniel’s Answer

    A civil claim against another person for making false statements about you is called defamation. However, you probably cannot sue someone for false statements they made against you in 2005. In Arizona, claims for defamation must be asserted within one year of discovering the false statement. The fact that you were convicted of something in 2005 indicates that you knew about the false statements 10 years ago. Likewise, the 2005 conviction itself undermines the defamation claim. Indeed, you dispute the conviction and the statements made in support of that conviction and may very well be right. However, the legal finding against you will weigh heavily in support of the person that made false statements against you. Considering both the 10 year old statements and the conviction, a defamation lawsuit would be extremely difficult, if not impossible, to prevail in.

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  • Do I have a legal case against my previous employer for wrongful termination?

    started at Jalapeno Inferno Market Street on Dec.1st,2014. I was transferred to the pinnacle peak location on April 13, 2015. I was fired on June.14,2015. When told I was being transferred I wanted to be clear if there was any specific reasons I ...

    Nathaniel’s Answer

    There appear to be two potential claims: (1) gender discrimination and (2) racial discrimination. An employer cannot treat you differently or adversely affect your employment because your personal situation is not in line with the employer's view of traditional gender roles. If the employer's dislike of you being a working parent (instead of a stay-at-home mom) was the reason for your termination, then you have a claim for wrongful termination. The write ups and false statements may be a pretext for the underlying hostility toward you and your situation.

    Similarly, an employer cannot treat you differently because of race. It is a little tricky because the discrimination is actually against your child, but I still believe this would be an actionable claim. Courts have held that employers cannot take action against employees who have family members who belong to a protected class or family members who participated in a protected activity. Regardless, the statutes prohibit an employer from taking adverse action "because of" race--whether yours or your child's.

    Both of these claims must be asserted by filing a charge of discrimination with the U.S. Equal Employment Opportunity Commission within 300 days of your termination. This time can pass quickly so do not delay. I recommend meeting with an experienced employment law attorney to advise you how to prepare your EEOC charge. However, if meeting with an attorney is cost prohibitive, the charge is not difficult to prepare and file on your own. The forms are online or you can go to the local EEOC field office in Phoenix.

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  • Counterclaim Nightmares

    I filed a claim against my former employer in District Court for unpaid wages and they filed a counterclaim claiming numerous accusations that I've already addressed in my answer and am prepared to file it in court. However, what else should I fil...

    Nathaniel’s Answer

    Be sure your answer to the counter-claim includes proper affirmative defenses. Check federal rules of civil procedure 8 and 12. After the answer, you may consider a motion to dismiss the counter claims. However, if you are in District Court, the judge may require you to attempt resolving the motion to dismiss with the other party before filing. Read the local rules of court for District Court and any preliminary orders unique to the judge. You will also likely get an order setting a Rule 16 scheduling conference pretty quickly. Read that carefully! You will need to prepare your initial disclosure statement very soon (see FRCP 26).

    A lawsuit can be tricky to navigate. I would be remiss if I did not recommend getting competent legal help.

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  • Unpaid vacation

    I am on unpaid vacation in the month of apr for 15 days(paycheck runs on semi monthly basis) and now I got new offer need to submit documentation. can I get transfer my h1-b to new employer.

    Nathaniel’s Answer

    Your question does not appear to be about salary or vacation but about transferring your immigration paperwork or status to a new employer. You should consult with an immigration attorney.

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  • Wrongful Termination - Month Later Company Offering Severance If I Sign to Not Sue.

    I didn't do something illegal. Someone else did and we were both terminated. They said because I knew or should have known it was my fault. I have been calling trying to get back money owed to me and they said they will not give me that but off...

    Nathaniel’s Answer

    These are standard terms in any severance or settlement agreement. Employers are willing to pay for the peace of mind that there aren't other claims "known or unknown" that you can assert down the road. Regardless of whether the employer thinks there is any merit to those claims, they just want to move on. It is a good idea to spend a little time with an experienced employment attorney to discuss your potential claims and the risks of litigation, as opposed to the terms being offered in the severance. That way, you can make a fully informed decision regarding accepting or rejecting (or counter-offering) the severance.

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