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Michael Robert Kirschbaum

Michael Kirschbaum’s Answers

4,632 total


  • Will I receive UI benefits from my previous employer who is being audited?

    Okay I worked in remodeling for five months. In this time was my highest quarterly pay. I received a 1099. I didn't realize that you cant get UI with a 1099. Here's where it gets interesting. I was under the impression that I was a subcontrac...

    Michael’s Answer

    If the EDD audit determines the employer misclassified you as an independent contractor, one of the consequences for the employer is that it will be required to pay into the reserve account money it should have been paying in all along. This is where your unemployment insurance benefits come from. Assuming you would otherwise be eligible for such benefits, you may well be able to collect. However, I am not sure whether you can do so retroactively. Check with the EDD about that.

    Also check with the IRS because you should be reimbursed by this employer for any social security taxes you had to pay for yourself, since this is something the employer should have been paying.

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  • I was demoted for reporting a coworker who threatened me? Is this retaliation? Do I have a case?

    Last year I was threatened by a coworker. I spoke to my supervisor, and he told me "you are still alive right?, obviously the threat was just talk". I then went to Human Resources and explained the situation, and she contacted the Director of my d...

    Michael’s Answer

    Employers are required to provide a safe place to work. If you had a reasonable basis to complain about the risk of harm to you or others by this co-worker, it would be unlawful for the employer to retaliate against you for complaining about workplace safety.

    Cases are all about evidence, Whether you can prove the employer retaliated against you for engaging in a protected activity will have to be evaluated by an employment law attorney who can review all of the facts. Consult with an employment law attorney for an informed legal opinion and to explore your options.

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  • Am I required to inform a potential employer that I am disabled...

    (modified work duties, thought they don't conflict with the position) or that I have a workers comp case in progress with a previous employer? I interviewed with a general manager at a large company who pressured me into admitting that I was inju...

    Michael’s Answer

    You are not legally required to inform a prospective employer of a disability or that you have a pending workers compensation case against your prior employer. However, if you have a disability which will require an accommodation once hired, some people may feel it is better to inform the employer in advance to show they are open and honest, knowing the employer may feel sandbagged if they learn of the disability after the job is offered. It is a difficult decision to make. It sounds as though you already decided to tell the prospective employer about your disability.

    It is simple to say employers may not base hiring decisions on an applicant's disability. Of course, no employer will admit you were not hired because of it. They will probably say something like they hired a better qualified candidate, which is perfectly legal. The burden would be on you to prove the real reason you were not hired was because of your disability. You would have to review all of the facts and evidence with an employment law attorney for an opinion as to whether you have a decent case if you are not hired. Good luck to you.

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  • Can an employer sue employee for vandalism?

    Hi, I have a friend who got mad at his boss for removing half of their hours. He works in a science research lab. He decided to play a little game and added something to a solution (chemical mix). Can employer press charges for vandalism? The empl...

    Michael’s Answer

    If, what you refer to as a "game" was an intentional act to damage the employer's property, the employee can, indeed, be held liable for the damage he has caused.

    Furthermore, truth is a complete defense to any allegation of slander. Therefore, if the employer is telling the truth about what the employee did, I would advise your friend to forget about suing the employer. He/she needs to find a better way to channel their anger.

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  • Can a employer retract job offer for pass back injury

    I was offered a job, they told me they wanted me to start Monday. Went to the physical Tuesday a week before start date. On Thursday talked to employer and said they got physical results. The Dr they sent me to was a Dr I seen in the pass 3 years ...

    Michael’s Answer

    It is illegal for an employer to discriminate against a job applicant because of a disability or because of a perceived disability. While employers may ask person who has already been offered the job to pass a physical to determine if the person is able to perform the essential functions of the job, simply retracting the offer without any attempt to explore reasonable accommodations may well violate the law.

    You should consult with an employment law attorney, in your area, to discuss your potential case in more detail and explore the options available to you.

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  • Information on Interactive Process regarding employment and an individual with a disability?

    My friend worked for a company and had an accommodation for a mental disability. The company failed support or provide accommodation. I'm looking for case law that could hold an employment liable for failure to engage in an interactive process...

    Michael’s Answer

    You can start your search by reading Cal. Government Code section 12940(m). The EEOC has a good reference guide for reasonable accommodation issues at http://www.eeoc.gov/policy/docs/accommodation.html . But if you are looking for case law, I am afraid that is very fact specific and much too detailed than can be provided on a free question and answer website. Lawyers draft briefs for specific cases and get paid for those briefs. Your friend will need to meet with a lawyer and address the facts of the case for a more informed legal analysis of his or her claims.

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  • Can my employer send me home if I have a doctors note?

    I had Oral Surgery for an extraction on a Monday. My Dr. note stated my MAY return to work that Wednesday but I came in on Tuesday (the date I was scheduled) but I was told that I have to leave. I do not get paid for those hours. Can they do this?

    Michael’s Answer

    If your doctor's note said you may return to work on Wednesday, it is a fair assumption you were not released to return to work on Tuesday. No law was violated by your employer sending you home, unless there are other facts we are not privy to.

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  • What do I do if the California Dept of Labor is not responsive?

    I filed a claim with the Labor Commissioner's office against a crook who runs businesses in L.A. and Las Vegas. My claim was for unpaid wages due to job miss classification. In February, the Deputy Commissioner strongly urged the defendant to set...

    Michael’s Answer

    As you are finding out, the Labor Commissioner's office is understaffed and under-budgeted and has a difficult time keeping up with the overwhelming volume of wage and labor law claims filed with its office. This is particularly true in Los Angeles. You rarely can reach the deputy assigned to your case by phone. When I deal with them, my practice is to fax all written communications, followed by the original letter, which seems to get a better response.

    However, perhaps, you best option is to retain an attorney and take the employer to court. If it makes you feel better, you can also contact 60 minutes or one of the news outlets with consumer protection reporters. Good luck to you.

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  • Working under the table whats the laws

    My exboss paid me underthe table i work over 40hrs for six months. And never got paid overtime he sold me a truck and i made payment to him truck was inpounded he pay for to get out twist i paid him back but he kept truck and he wont give it to me...

    Michael’s Answer

    Sounds as though you both engaged in unlawful conduct and now that this employer has taken your truck away, you want to explore your legal options. In large part, any rights you may have will depend on whether anything is documented and you can prove you worked for this guy. If you have the documentation to prove he sold you the truck, you can sue him to get it back.

    If you were paid "under the table", you also may be able to sue him for non-payment of your withholding taxes, overtime and any other labor violations which may have been committed. But if you have not reported your income or paid taxes on your income, you may also be held liable for penalties. This whole arrangement sounds like a mess, which you may need to hire an attorney to straighten out.

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  • Should I retire or go out on medical disability or SSDI before my employer terminates me?

    My employer was quoted stating they would love to medically separate me. I have many medical issues that they were made aware of. They know I have chronic pain due to surgeries, job etc. They asked me to pee for drugs which they know will come up ...

    Michael’s Answer

    You are asking attorneys on a public question and answer forum to advise a person we do not know, based on one paragraph of information to make a life changing decision. Bad idea. You really need to sit down with an employment law attorney in your area and discuss all of the factual circumstances, as well as your goals, limitations and needs. The attorney will ask many questions of you and you will need to provide a lot of information before you can get the kind of legal advice you are seeking to help you make a decision which may permanently affect your future. Good luck to you.

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