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Oleg I Albert

Oleg Albert’s Answers

51 total


  • Can I ask my previous employer for proof of employment contract?

    I was working fora company for one year and during this one year after my tax returns i realized that my employer miss classified me as independent contract. and that time i was only 17 years old. I also did not receive or have copy of my contract...

    Oleg’s Answer

    Your employee file, if the employer keeps one, must be produced within a certain number of days per statute after you make a formal request. The real question is why are you interested in seeing the file? My hunch is that if you are being classified then there isn't much by way of an "employee file". Having said that, if you kept any of your pay-stubs they are proof of your relationship with the employer. In terms whether you were classified, it is a fact driven inquiry that is done on an individual basis. Feel free to contact me if you have some more confidentially if you have questions about this.

    Best of luck,

    Oleg Albert
    www.tumberalbert.com

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  • I was terminated for tardiness after I submitted yet a second request for reasonable accommodations written by my cardiologist .

    I was terminated for being late after a second request for reasonable accommodations were submitted to my supervisor and executive director . I had told my supervisor that I would be out on Wednesday , February 13 , 2013 because I would be goin...

    Oleg’s Answer

    • Selected as best answer

    Contact a lawyer in your area as it looks like your scenario is very fact driven. You may want to take a look at a recent decision that is instructive to ADA/Title VII scenarios.

    Arriving to work on time might not be an essential function if the late employee would still be able to complete his work in a timely manner, according to the Second Circuit Court of Appeals. McMillan v. City of New York (2nd Cir. March 4, 2013).
    The plaintiff, a case manager for NYC’s Human Resources Administration (HRA), took medication in the morning which made him “drowsy” and “sluggish.” The HRA had flex hours which allowed employees to arrive at the building between 9 a.m. and 10 a.m., and leave between 5 and 6 p.m. Plaintiff often arrived late, sometimes after 11 a.m. After allowing plaintiff to be late for at least ten years, HRA began requiring him to report to work on time.
    Reversing summary judgment to the HRA, the Second Circuit said that “[p]hysical presence at or by a specific time is not, as a matter of law, an essential function of all employment.” Citing the need for “a penetrating factual analysis” into both the employer’s description of a job and how the job is actually performed in practice, the Second Circuit said that the fact that the employer allowed plaintiff to be late for many years, and the fact that the employer offers flextime “implies that punctuality and presence at precise times may not be essential.”

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  • Employment/Labor Issue: Need an Answer

    After having a freeze for 2 yrs our CEO just sent an email to All Staff notifying everyone that Leadership decided to remove freeze but only to give raises to support staff who make < $20/hour; CEO’s words, because of how difficult living may be f...

    Oleg’s Answer

    The fact pattern you describe is unfair, but perfectly legal. As an at will employee the terms and conditions of your, as well as your colleagues', employment can be modified unilaterally by the employer. The only restriction on this, is when employees are union members, or when employers modification adversely affects employee(s) for prohibited reasons such as race, gender, national origin discrimination, etc.

    Short of an unlawful motive, an employer can discriminate and play "favorites". There is nothing unlawful about it, even if it is really unfair.

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  • Can a company hold commission to pay themselves back

    I am independant sales rep was let go dec. should receive commissions from November . The company wants to pay themselves back for samples.

    Oleg’s Answer

    Additionally, the nature of your remedy depends on your classification. Are you an independent contractor (properly classified as one), or are you an employee? If you are an independent contractor than the withdraws could be breach of contract should it not be covered by your agreement. If you are an employee and this is not agreed to in writing you can maintain a claim for wages due and owing, and could be entitled to lost wages, and various penalties.

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  • Can I file for unemployment if I do not return to work of my maternity leave?

    I have been on maternity leave for 4 months. 2 weeks prior to my return, my employer is letting me know that my previous flexible schedule (prior to having a baby) will no longer be available to me. I will now have to work until 5:30pm instead of ...

    Oleg’s Answer

    Unemployment is available to employees who are terminated; and not those who are resign themselves. More importantly, the facts you provide make me think that you could have a additional remedies. Your leave is protected by various laws, and an employer cannot retaliate against an employee for exceeding their rights thereunder.

    You should contact a local employment attorney about this to discuss further.

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  • CA Maternity leave coming to an end. Job hours and schedule are changing. Can I get EDD?

    I am supposed to go back to work but I was told that my hours and schedule have changed and it is non-negotiable. If I choose not to return to work, am I entitled to CA EDD? Are they legally allowed to change the terms of my job while I am on Dis...

    Oleg’s Answer

    Generally speaking, an employee is entitled to return to the same position following maternity leave (CPDLL/FEHA), unless their position is no longer available for a reason unrelated to the leave. However, many extend their CPDLL leave with CFRA leave, which is slightly less protective than CPDLL provisions.

    Regardless, an employer cannot retaliate against an employee for engaging in a protected activity such a requesting/taking a protected leave of absence. Retaliation can include termination, but could be less drastic. Reduction in scheduled hours could also be considered retaliation, if it leads to lower income and/or less desirable working conditions.

    In terms of the EDD issue, more facts are necessary. If the hours for the position have been reduced, but you are still doing the same job than it may be possible to secure partial payment. However, if this is a change in assignment, than no EDD.

    Many more facts are necessary to determine an action plan for you. I recommend you contact a local employment attorney to discuss this in further detail. You can find many listed on CELA.org.

    Best of luck,

    Oleg Albert, Esq.
    tumberalbert.com

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  • Can I sue for discrimination?

    I have worked for nintendo for 23 years and was terminated for sleeping in my car. I have severe bipolar illness and take many medications to remain stable. my condition is documented at nintendo for 20 years. they did not consider my disability...

    Oleg’s Answer

    The facts you provide are insufficient to state one way or another. However, depending on the nature of your bipolar syndrome, you may be considered disabled. If there are sufficient facts showing that the termination was related to a discriminatory animus towards your disability or perceived disability, than there may be a cause of action.

    Employment cases are fact intensive, and you should contact a local employment attorney to discuss the particulars of your situation. You should do this sooner than later because Title VII/ADA cases have a very short statute of limitations, which means that if a terminated employee doesn't act quickly they may be barred by the statute of limitations.

    Best of luck!

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  • Do I need legal representation?

    I recently told the HR department of the company I work for of allegations of discrimination and harassment because of a mental disorder. My emails requesting information were ignored and I waited a month and a half for a resolution. My concerns w...

    Oleg’s Answer

    Based on the facts you present, it is impossible to say whether you need legal representation. However, if you believe to have been a victim of workplace discrimination and/or harassment, you may want to contact a local employment attorney. Discrimination and harassment based on actual/perceived disability and/or medical condition is prohibited by federal law.

    Keep in mind, employment law is very fact driven, and therefore speaking to an employment attorney will probably help you understand your rights. Many such attorneys will provide a free consultation.

    Also, the statute of limitation is fairly short under Title VII / ADA, and therefore you should contact an attorney sooner rather then later.

    Best of luck!

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  • Copy of Affidavit in an employment matter needs to provided in advance as part of the Exhibit?

    Former employer was asked to provide an affidavit regarding destruction of documents shortly after letting go of an employee (an internal review was already initiated, when the destruction happened). Question is does the employer need to exchange...

    Oleg’s Answer

    I agree with Mr. Pedersen, without context it is impossible to answer your question directly.

    However, very generally speaking, documents that are intended to be used as evidence (including an affidavit/declaration) at hearing should be disclosed to opposing party if previously requested by that party. Failure to respond to a document request can be grounds for precluding the use of the evidence at trial/hearing.

    As previously mentioned, since you do not state whether there was a specific request, or the nature of hearing, the answer is only a very general statement of law.

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  • Does employees have rights to ask for any evidence that leads to termination when getting terminated?

    My employer has suspended me on not following company policy for certain procedures and now its going under investigation. If after the investigation, they decided to terminate me do I have the rights to ask for ALL the documentation, reports and ...

    Oleg’s Answer

    In addition to the answers above, a terminated employee can certainly ask why. However, the employer is not required to provide a reason. Nevertheless, the question is worth asking because the employer may reveal their reasoning, which can subsequently be used as evidence of pretext, should the terminated employee challenge the termination as unlawful. See Mr. Pedersen's answer for "unlawfulness" of terminations.

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