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Dustin Linley Collier

Dustin Collier’s Answers

85 total

  • NLRB or private hire attorney for filing a DFR against my Union?

    Would filing a DFR claim be just as effective as a private hire attorney in filing a DFR claim? What are the pros and cons of filing through the NLRB if I cannot afford an attorney on my own?

    Dustin’s Answer

    You should definitely consult with an attorney before pursuing this at all. You generally cannot bring a DFR lawsuit in court without first filing the NLRB charge (your post suggests you think these are alternative solutions). More importantly, you should talk to a labor lawyer (one who specializes in "labor" law rather than "employment" law - "labor" law is the law governing employer/Union relations). It is VERY difficult to prevail on a DFR charge against a Union so you want to have an experienced labor lawyer give you an honest assessment of the risks and likelihood of success.

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  • Can a person 62 years of age who is qualified for a federal job be denied that job because of age. the job is a desk position

    job is to manage and delegate repairs for section 8 housing units in NYC . the position is open as of April 1st and I meet all requirements for city and state need to secure job but fed gov says I can not be over 50 to secure job

    Dustin’s Answer

    The short answer is that Title VII of the Civil Rights Act and the Civil Service Reform Act of 1978 both prohibit a federal employer from discriminating against applicants on the basis of age (note this only applies to workers over 40). There is an exception where they can prove that age is a "bona fide occupational qualification," but that certainly isn't apparent from the details in your post.

    I would suggest contacting a local employment lawyer immediately to discuss this further.

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  • My husband was in a motorcycle accident while on work time 6 months ago. Can he still file a workers' comp claim?

    We have used our personal auto and medical insurance for his many medical needs & surgery. He was on the highway and hit from behind. His motorcycle was totaled and the person who hit him does not have good insurance. His work has paid him a st...

    Dustin’s Answer

    You generally have a year from the date of injury to file a workers' compensation claim. The employer is also supposed to provide the claim form (DWC-1) within 24 hours' of notice of the potentially work-related injury and to begin providing medical treatment within 72 hours. Thus, not only does your husband have a potentially viable workers' comp claim (for the next six months), but it sounds like the employer may be on the hook for some penalties for non-compliance with its own notice and treatment requirements.

    Your husband should talk to a workers' compensation attorney immediately. Good luck!

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  • I resigned from a job with hospital in Louisiana 9 years ago. I believe I was discriminated for having mental issues? Too Late?

    I was diagnosed with Manic Bipolar Disorder, and I thought I could trust my employer. I was immediately treated different. I had NEVER been reprimanded in my 20 years of employment. I was called in to see my 2 managers. I was told that they truly ...

    Dustin’s Answer

    There are several problems with bringing a claim at this point. First, the statute of limitations under the Americans with Disabilities Act has run. Second, the doctrine of "laches" (which prohibits "unreasonable delay resulting in prejudice") would likely bar your claims on equitable grounds. For those of you who are academically interested, statutes of limitations and the doctrine of laches serve the same purpose but operate independently because they date back to the division of British courts into courts of "law" and of "equity," respectively. The statute of limitations would bar a suit in a court of law while laches would have the same effect in a court of equity. In the U.S., we have combined the two systems into a single court and thus both defenses would be available in the same lawsuit today.

    There are times where you can claim that the statute of limitations "tolled" (the legal term for putting it on pause) and thus did not run for some specified period of time. Given your facts, you could potentially get a medical professional to testify that you were incapacitated/incompetent (i.e., unable to appreciate and pursue your legal rights) for nine years, but you would need to explain why you are suddenly competent now. That is long shot, but it seems to me your only hope of getting around the statute of limitations problem. The same facts might be relied upon to defeat laches, which requires "unreasonable" delay (and you could argue that the delay was reasonable because out of your control).

    You should talk to a local employment lawyer to discern whether there any other claims that have not expired and/or whether you could viably make out a "tolling" argument in your jurisdiction. I doubt these arguments would fly in California, but LA may have more generous tolling caselaw.

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  • As an Employer in California and employing a part time mechanic who is making 14:00 per hour is he entitled to more money.

    He is stating that we have to pay him double the minimum wage because he has to have his own set of tools.

    Dustin’s Answer

    It appears your employee is referring to California Labor Code section 2802. That section provides in pertinent part as follows:

    "2802. (a) An employer shall indemnify his or her employee for all
    necessary expenditures or losses incurred by the employee in direct
    consequence of the discharge of his or her duties, or of his or her
    obedience to the directions of the employer, even though unlawful,
    unless the employee, at the time of obeying the directions, believed
    them to be unlawful."

    Thus, this section may require you to purchase the employee's tools for him. There are exceptions to this rule that might apply here, particularly given the part-time status of your mechanic (is he, for example, using the tools on other projects such that he appears to be more of an independent contractor than an employee?). You should consult with an employment lawyer to discuss the potential exceptions to section 2802 and, if none appear to apply, you should offer to reimburse your employee for his tools.

    I do not understand your employee's reference to a "double minimum wage requirement." It appears to me he may be confusing section 2802's requirements with the requirements to deem an employee "salaried-exempt" for purposes of various employment laws (including section 2802, overtime, and a variety of other laws). For an employee to be "salaried-exempt," they must both qualify for a statutory exemption (mechanics ordinarily would not qualify) and be paid a salary that results in compensation at least double the minimum wage when divided across the number of hours actually worked by the employee.

    You can read more about section 2802, "salaried-exempt" status, and a variety of other employment law requirements in the "Enforcement and Interpretations Manual" published by the California Division of Labor Standard Enforcement. I have provided a link to that manual below.

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  • If you reveal your disability during an interview and the employer says he doesn't want to hire you due to that can you sue him?

    No further details

    Dustin’s Answer

    As any lawyer will say with regard to just about any legal question, the answer is "it depends."


    The Americans with Disabilities Act (42 U.S.C. section 12101 et seq.) prohibits an employer from discriminating against the disabled with regarding to hiring, firing, promotions, demotions, discipline, and other material terms and conditions of employment. Whenever an employer becomes aware than an employee has or may have a "qualifying disability," the employer must provide "reasonable accommodations" for that disability. Moreover, the employer has a duty to engage in a "timely, good faith interactive process" to determine whether reasonable accommodations are possible.

    The first question, then, is whether you have a "qualifying disability." Not all medical conditions qualify as "disabilities" within the meaning of the ADA. I, for example, have a clicking sound in my jaw when I chew food. While this is the result of a medical/genetic condition affecting my jaw bone, it likely does not rise to the level of a "disability" under the law and my employer is probably free to fire me if the clicking sound annoys him/her while we're out to lunch one day. To qualify as a "disability" under the ADA, the medical condition must "substantially limit" your ability to engage in "one or more major life activities."

    According to the Department of Labor, the term "major life activities" is defined to include (but is not limited to) "caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working." Thus, the first question is whether your medical condition "substantially limits" you with regard to one or more of these activities.

    Assuming you have a "qualifying disability" by applying this analysis to your condition, the next question is whether you can perform the "essential functions" of the position with or without "reasonable accommodation." For example, if I have a disability that affects my ability to stand, I can still perform the essential functions of a job that requires me to sit 100% of the time and there's no reason the employer should discriminate against me with regard to that job. By contrast, a blind person cannot perform the essential functions of a bus driver or taxicab driver position with or without accommodation (at least not with our current technology), and thus the employer has no duty to accommodate blind applicants for those jobs. In other words, a transit company can lawfully discriminate against the blind when hiring for vacant driver positions.

    In other instances, an employee can be accommodated but the accommodation would be "unreasonable" and therefore is not legally required. Similarly, the employer can defend an ADA claim on the grounds that accommodating the disability would impose an "undue hardship." Suppose, for example, that I have an open sales position in my business and I expect the salesperson to generate $100,000/year in new revenue. An individual with a speech pathology applies for the job. Without accommodation, they cannot make the sales calls or deliver sales pitches to prospective clients. Suppose further that I could by a screen reader and other voice supplementing technology that would permit the applicant to perform the job, but doing so would cost $150,000/year. Obviously, hiring this person would now result in a net loss of $50,000/year and that clearly constitutes an "undue hardship" on the employer. The requested accommodation, moreover, is "unreasonable" within the meaning of the statute.

    Thus, to answer your question an attorney would need to know exactly what medical restrictions you have, what job duties would be required of you, and how difficult it would be for the employer to accommodate your condition. You should consult with a local employment lawyer to get a more complete analysis.

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  • Hi im in a situation with my employer

    hi im in a situation with my employer were im currently suspended with pay for using a gift card that was apparently scanned under my employee numbers thing is im not aware of ringing this card up all i remember is finding the card on the floor gi...

    Dustin’s Answer

    It's unclear what your question is, but I assume you want to know (1) if you can be terminated for this reason and (2) whether you can be forced to pay back the 30 dollars and cost of investigation.

    With regard to (1), the default position under the law is that you are an "at-will" employee and can resign at any time for any reason, a bad reason, a false reason, or no reason at all. The flip side is that the employer can terminate you at any time for any reason, a bad reason, a false reason, or no reason at all. Generally speaking, when an employer terminates an employee for some form of misconduct, the law does not require that they be correct that the misconduct occurred.

    This default "at-will" presumption can be rebutted by contract terms contradicting it (there may also be a statute in PA modifying it, but that would be highly unusual - you should consult with a PA lawyer to confirm). Also, if the misconduct is really a pretext for a prohibited motive like discrimination or retaliation, then you can potentially fight it. Otherwise, merely contending or even proving that you did not swipe the card usually will not suffice to get you reinstated.

    As for the 30 dollar reimbursement and attempt to bill you for the costs of investigation is a trickier issue. In California, we have statutes that specifically prohibit these sorts of "charge-backs" and the only way the employer can recoup those funds is to prove in litigation that the employee is legally responsible for the losses. I do not know if there's a similar PA statute, so once again you should contact a PA lawyer to inquire about it.

    However, even if there is such a prohibition, I'm concerned that you signed paperwork agreeing to pay back the $30. Without looking at it, it's unclear whether that paperwork included your admission of fault for the incident and/or an agreement to also repay the investigation expenses. If it does include such provisions, you may have contracted away your right to dispute the charges. Under the aforementioned CA statutes, for example, an employee can be "charged back" if they voluntarily consent to it. You should yet again talk to a PA lawyer to see if there's a similar consent provision and/or whether you could viably challenge the agreement (on unconscionability or other grounds) under PA contract law.

    Good luck to you!

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  • I have been working for this guy for 8 yrs. got hurt because ofmy job, went back to work, he fired me. i'm a partner not employe

    hurt my foot, the doc. told me to stay off of it 4 to 6 weeks, didn't get better, went back to doc. 2 weeks more. went back to work,he told me there wasn't any. turned my phone off. he has been telling people that i'm his partner not an employee. ...

    Dustin’s Answer

    If your employer has more than 50 employees in a 75-mile radius and you worked more than 1,250 hours in the preceding year, you were probably eligible to take up to twelve weeks of protected medical leave pursuant to the Family and Medical Leave Act and California's Family Rights Act.

    Even if you weren't FMLA/CFRA eligible, your condition probably qualifies as a disability under the Americans with Disabilities Act and California's Fair Employment and Housing Act. Both of those statutes require the employer to make reasonable accommodations for your disability, which can include a leave of absence under the right circumstances.

    If you were truly a "partner" and not an "employee," your rights in this regard will be severely limited. However, it takes more than your boss calling you a partner to make it so. Do you actually own any portion of the company? Did you ever sign a partnership agreement? Did you put up any of your own capital to start the company? If the answer to these questions is "no," then you probably were not a genuine partner in the business. In California, there's a statutory presumption of employment status and the employer must rebut it if they deny it.

    Even if you were a partner, you cannot simply be "terminated." Instead, the majority shareholders of the company (i.e., a majority of the other "partners") must vote to remove you and must buy out your equity in the company. You would have the right to vote on that decision unless you have an unusual partnership agreement that deprives you of voting rights.

    My recommendation is to consult with an attorney immediately so the factual circumstances can be fully analyzed and definitive answers to the foregoing questions can be discerned.

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  • Lost my EAD card. I have the scanned front copy of the card. What should I do? Please suggest me.

    I am on my OPT extension. there was a break down of my mail box and I lost my mail which had my OPT EAD card.I have a copy of front side of the card. What can I do to get another card? Is it ok if I don't take a new card and use the scan copy only...

    Dustin’s Answer

    You can get a replacement card by filing a form I-765 with the United States Citizenship and Immigration Services. Details about this process can be found on the USCIS website:

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  • Is the company I work for legally bound to the terms of permanent employment in my offer letter?

    I accepted an offer as a temporary employee for a large corporation in April. My position was to become permanent after a successful completion of my background check which was stipulated in the letter. I requested information about my status ch...

    Dustin’s Answer

    The default position under the law is that you are an "at-will" employee subject to termination at any time for any reason, a bad reason, a false reason, or no reason at all (provided it is not an unlawful reason, such as your race, gender, disability, etc.). In this sense, the distinction between "temporary" and "permanent" status in employment is meaningless.

    However, if they promised you would be eligible for benefits at a certain point in time (regardless of what they termed the status that made you eligible), that time has passed, and you have not received the benefits, you may have claims for breach of contract and breach of the covenant of good faith and fair dealing.

    Can you bring this up with the upper management? Sure. Are you protected from retaliation if you do? Probably not. In California, there are statutes that protect an employee who refuses to labor under unlawful conditions and arguably laboring under a breach of contract could qualify (though I still wouldn't recommend it to my clients because it's a risky theory). I'm not sure if there's any similar protection in Kansas you could potentially qualify for.

    My recommendation would be to contact a local lawyer and have them assess the facts to determine how certain your "permanent status" contract was and whether your damages for the breach are truly worth pursuing.

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