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Richard J Vaznaugh
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Richard Vaznaugh’s Answers

9 total

  • Do I need a labor and employment attorney ?

    First and foremost I was fired while on disability from a drunk driver where I ended up with 2 herniated disc's in my neck. My ex company had under 50 employees so they told me I wasn't covered under fmla. Long story short I have been unable to ge...

    Richard’s Answer

    It is likely that you have a viable claim of disability discrimination, but more information is needed to determine that. In California, companies with 5 or more employees are required to give you a finite leave of absence to recover from disability and to work with you (called an "interactive process") to see if you can come back with accommodations. Depending on the length of your leave and the severity of your limitations, it's likely they did not respect your rights. The after the fact "interactive process form is probably a CYA attempt - and a pretty lame one at that! You should contact an attorney experienced in disability discrimination at work to get a complete evaluation of your case.

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  • Labor Employment lawyer, What is the statute of limitation on employment discrimination and employment termination ?

    California statute of limitation on employment discrimination and termination

    Richard’s Answer

    one year and two years, respectively.

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  • Im being over worked as a salaried employee wich is causing stress and fatigue, i recently went to the hospital over headaches

    and chest pain. constant going to bed late and waking up a couple hours later for work or daily activities, now the company let me go today and i have tole them the reason for mis haps, what can i do?

    Richard’s Answer

    I agree that the initial question is exemption. I do NOT agree that you should simply look for another job!

    By default, all California employees are entitled to be paid overtime pay for every hour over 40 worked in a week. Only certain types of employees can be properly treated as salaried. The law sets the standards for these "exemptions" and is fairly rigorous. It is the employer's burden to prove you were exempt. If you told us more about your job and what you actually did during your working days (and nights), then we could provide a closer opinion on this issue. Either way, you should consult with an employee-side employment attorney to review your termination, there may have been other legal irregularities with your termination that only an attorney specialized in this area (and in California law) will be able to identify. For example, you may have been entitled to some accommodation for your illness. Good luck!

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  • I'm a California state employee & filed a workers comp claim for bilateral carpal tunnel. I'm also on FMLA. Can I be terminated?

    The Employee Health doctor released me back to work tomorrow with restrictions, light duty & 30 minutes of repetitive computer work with 30 minutes of non-computer work. Last week, a new boss handed me a new job description & doubled my job respon...

    Richard’s Answer

    The general rule is you cannot be fired while you are on a qualifying FMLA leave and have to be reinstated at the conclusion of your 12 week leave. (There are limited exceptions.) However, you will likely return to the same onerous position. You are entitled to reasonable accommodation for your disabilities, but not all things need to be accommodated and it is important to be strategic with your requests. You also have the right to be free of retaliation and if you can show that the new duties are a retaliation, that should certainly help to get them lifted or provide ammunition for a litigation if you cannot. You should contact an attorney with a substantial California disability discrimination practice for a free consultation. In your case you should also consider that it would be a good investment to retain someone to advise you on an effective strategy for you when you return to work since that will probably take more work than the typical free consult.

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  • How to prove employer employee relationship. I am on H1b visa and was never paid for 4 months.

    My employer did not pay me for 4 months. He marketed my resume for projects and I have emails pertaining to the same. I then transfered my visa in February of this year. Now how do I prove in labour court the employer employee relationship.

    Richard’s Answer

    If you had an agreement to pay you for this time or actually worked during this time, then you are due the monies and, likely, some penaltiess too. You have a choice of enforcement forums, either the DOJ wage and hour division or a State court action. You should contact an employment attorney who specializes in the representation of employees for a free consultation.

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  • I was fired for "insufficient notice" that I was sick, but the facts don't make sense. Do I have a wrongful termination case?

    I was sick and called and emailed my supervisor several times to tell him I wasn't coming in, but he wasn't answering my calls. I went to work to tell another supervisor. At that point I saw my supervisor who asked me if I clocked in, and I said n...

    Richard’s Answer

    I think the legality of this would depend on severity of your illness , if it qualified for protection as a serious health condition under the FMLA or a "Disability" under the FEHA, then you may have given the employer enough notice for them to inquire further before terminating you on the spot. In addition, if you had a right to sick leave under the San Francisco sick leave ordinance, then you may be protected under that law as well.

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  • While out on medical disability I was terminated because of my absence and hardship caused to company. Is this legal?

    Been out since Xmas due to Carpal Tunnel. Dr. originally thought I would be out for 2 months but healing did not progress quickly and would not allow me to go to work. I advised company of progress. They hired a temp to take my place. Received a c...

    Richard’s Answer

    Yes, the other responders are correct. In order to be required to provide reasonable accommodation under state law an employer must have at least five employees. You should consider if there are part-time workers or workers who have been incorrectly treated as independent contractors or other offices of the company that would increase the number to what is required. Even if there are five or more, it may be unduly burdensome and thus, not required, for such a small office to hold a position open for many months, this type of question needs to be answered on a case by case basis.

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  • Employer has a sole employee working 9hr/day at the store - can employee agree to an on-duty lunch?

    Employer has a sole employee working 9hr/day at the store 5 days/week - can employee agree to an on-duty lunch? I understand that lunch can be waived on shifts of no more than 6hr/day by mutial consent (can't find any info if this consent can be o...

    Richard’s Answer

    Employer can require an on-duty lunch, with premium pay. So, if Employer does not make an unpaid, off-duty 30 minute lunch period available to the employee, then have to pay 1 hour of premium pay, in addition to all hours worked.

    So 9 hours would mean - 8 hours straight time, 1 hour premium pay and 1 hour of overtime.

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  • I am applying for Unemployment but the employer lied and said I quit. I was told there were no work available. What can I do?

    My hours were slowly cut until I no longer was given any at all. I applied for unemployment and denied because the employer lied and said I quit. I called back and asked if I was still on the payroll, and was told there was no available work hou...

    Richard’s Answer

    We are seeing more shot in the dark objections and appeals to unemployment claims by employers. It may be that the employer will claim that leaving you on call meant you were still employed, but so long as you did not have any paid work to do, I believe you will be considered terminated by EDD or at minimum that you had good cause to "quit." EDD's web site has a publication on voluntary quits that will explain how the EDD judge will look at it. Check it out.
    You will probably end up representing yourself in any proceedings -- it's hard to hire a private attorney and few make a practice of going to EDD claims. I will say that I was at one last month, because it was related to a discrimination suit we are planning. The employer did not even show up and my client one by default. In San Francisco, one resource is the excellent non-profit law firm the Employment Law Center. They offer EDD counseling for self-represented individuals without charge.
    It's fairly easy for an employer to contest your EDD claim and no consequence to them if they lose. So don't lose heart, their case may be as flimsy as you think it is.

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