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Michael Robert Kirschbaum

Michael Kirschbaum’s Answers

4,860 total


  • Should I pursue a case being that my offer letter is a legal document signed and prepared by our HR dept.

    Along with many coworkers, I have not received my base salary increase as stated in my offer letter. It is three months overdue and when I reached out to HR along with our Director, the responses were very negative and hostile.

    Michael’s Answer

    You are going to have to have an employment law attorney review the offer letter and all of the surrounding facts to determine whether a binding contract was entered into and subsequently breached by the employer. If, indeed, it appears the employer breached its contract with you, then a lawsuit is an option available to you. But a lawyer will probably want to write a demand letter first.

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  • Fake misconduct terminations. How can the employer prove this when the I have a witness!

    I was discharged for "misconduct". I do not agree with them. I had Unemployment interview today and she asked to fax the copy of termination notice which says, my employer has lost trust in me etc. I used to work for Wells Fargo and they are c...

    Michael’s Answer

    If you receive a written notice denying you UI benefits due to the employer's allegation of misconduct, you will have 20 days to submit an appeal. If you appeal the initial decision, a hearing will be scheduled. At the hearing, the employer will have the burden of proving that you committed an act of misconduct. You will have the right to present any relevant evidence in your defense, including bringing in witnesses. If you expect a witness will not voluntarily appear, you can request the administrative law judge to issue a subpoena and have the subpoena served upon the witness. The ALJ's decision regarding your benefits will be based on the evidence presented at the hearing. Be as prepared as possible to enhance your chances of success. Good luck to you.

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  • I want to know do I have a lawsuit against a company?

    On December 17th 2015 I had an interview at Family Dollar. The interview went well and I was asked to go and take a drug test. I went that same day but was misinformed on the times and was told to come back the next day for the drug test. On Decem...

    Michael’s Answer

    An employment relationship is considered to be at the will of either party to that relationship, which means it can begin or end whenever either party wants it to. Unless there is a contract entered into between you and the employer (and you should never name the employer on a public forum as it violates the rules on Avvo), the employer has no legal duty to hire you on a specific date or at any time. The exception to this is that the employer may not refuse to hire an employee for a reason which is expressly prohibited by law, such as because of race, gender, age (over 40), disability, etc. You have not indicated the delay in hiring is because of an unlawful reason. You cannot sue the employer for negligence in the hiring process.

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  • Do I have a case against my former employer for retaliation? Can I still get my bonus?

    Recently, I was terminated from my place of employment. In my belief, it was as a direct result of an investigation I was conducting related to dishonest employee activity. I took the case to my immediate supervisor. Shortly after, an attempt to p...

    Michael’s Answer

    There are two separate issues you raise. The first is whether you were wrongfully terminated. As California case law has developed over the years, an employee may be able to sue an employer for wrongful termination where the employee can produce evidence to show that they were fired because of a reason which violates a substantial or fundamental public policy under the law. For example, if you reported to your employer that a co-worker was committing a crime, you would be considered a whistleblower and the law protects you from retaliation for having dome so. You state that you were investigating dishonest employee activity and you believe that is what led to your termination. Many questions will have to be asked regarding what kind of activity you are referring to and why you were doing this investigation before an attorney can offer an opinion as to whether such activity is protected. Do not address this in a public forum. Discuss this in the privacy of an attorney's office where you have the protection of attorney/client privilege.

    The second issue is whether you are due a bonus. You state this is a non-discretionary bonus. This means the details of how the bonus is to be earned and calculated is contained in some form of a contract. An employment law attorney will need to know every detail of the contract in order to advise you on the likelihood of success in pursuing a breach of contract claim for the bonus if it is not paid voluntarily. Clearly you need legal help with these issues. Start contacting employment law attorneys as soon as possible for an informed legal opinion and advice.

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  • Is this behavior acceptable? Is this sort of discrimination allowed in the work place?

    Our corporate boss called a few employees and I and told us that we could not let one of the other employee answer the phone because her voice was not pleasant enough. This employee has a deeper raspy voice, nothing that she can change about her s...

    Michael’s Answer

    The tome of a person's voice is not a characteristic which is protected by state or federal law. While it would be unlawful to discriminate against an employee because of gender, race, disability, etc., this kind of characteristic is not included among those protections. Theoretically, if the employee's voice is deeper or raspy because of a medical condition, it could arguably be protected. But the other issue would be how the employee has suffered damages as a result of not being allowed to answer phones. I see no case here.

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  • Can I get unemployment if I was put on leave of absence?

    I just found out that I was actually put on a "leave of absence" around May 2015 from my employer. I didn't know this until I tried to close out my 401k. I was put on leave because I took the pay from the workers comp. I was put on restriction of ...

    Michael’s Answer

    To be eligible for UI benefits, you must be able and available for work. It is not clear from your post whether that is the case. It may be possible to be able and available for work if you have a disability which can be reasonably accommodated to enable you to perform the essential functions of your job. Which, of course, begs the question, why has this not been explored with your current employer? However, if you are released to return to work with or without an accommodation but, through no fault of your own, your employer does not allow you to return, you may be eligible for UI Benefits.

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  • Does an employee have to ask permission to take required breaks and or lunch?

    I work in an office in CA for an employer with less than 10 full time employees. Am I required to ask permission to take a break and/or go to lunch? If I am within my legal rights to a rest and or meal break should I be given a warning for not i...

    Michael’s Answer

    While California employers are required to provide non-exempt employees with rest and meal breaks, they can also require the employee to inform the employer when they are going to take their breaks for coverage issues. Failure to comply with reasonable personnel policies of this nature may lead to disciplinary action taken against the employee. This is not the same as where an employer is preventing an employee from taking their breaks.

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  • Overtime Pay

    Can you explain what an employee is entitled to if they had a work day where the clock in time is 9:00 AM, and the clock out time is 3AM. Do the hours worked after midnight get paid at regular time, time and half (1.5) or double time?

    Michael’s Answer

    The answer to your question will depend on what time the workday starts. For example, if it starts at 12:01 AM, you are actually working two different days. California law requires employers to pay overtime premiums to non-exempt (hourly) employees for all hours worked in excess of 8 in a "workday" or 40 hours in a "workweek." Find out from your employer what time the workday starts and then calculate the number of hours worked within a 24 hour period from that point. Once a workday hour has been established, the employer cannot keep changing it to avoid paying overtime.

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  • If I sign am I giving up future rights to sue for wrongful termination under state or federal statute violations?

    My employer wants me to sign an employee handbook he just came out with after 2 years of employment. I disagree with the statement I am agreeing I can be fired without cause at any time.

    Michael’s Answer

    It appears you are being asked to acknowledge that you are an at-will employee. Unless you have a contract with this employer for a specific period of time or which limits how, when or why you can be terminated, you are already presumed, by law, to be an at-will employee. So signing such an acknowledgement does not abrogate any legal rights. A wrongful termination case for at-will employees can only be brought forward when the actual motive for the termination is unlawful.

    Of course, an attorney would have to be able to review any documents you have signed or are being asked to sign before a more informed legal opinion may be offered.

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  • Am I committing "Conflict of Interest" violations by being employed with one but in training for another? No pay 4 training.

    I currently work for one tax service and am being paid as "On Call." I am in training for another tax service. It is better paying and does not foster a discriminatory environment. Am I committing "Conflict of Interest" violations?.

    Michael’s Answer

    It is not unlawful to work for two employers at the same time. The real issue is whether one job is doing any harm to the second job. You owe a duty of loyalty to the employer, so as long as you are not doing anything which actually creates a conflict of interest you should be okay. For example, you cannot receive any compensation from one employer for hours you claim to be working for it, while actually providing a service for another. Nor can you use resources or trade secret information you acquired from one employer to the advantage of another. If there is any doubt in your mind as to whether your actions are creating a conflict of interest, consult with an employment law attorney for advice.

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