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Drew M. Capuder

Drew Capuder’s Answers

8 total

  • Is there a "reason" I can legally quit my job and retain benefits?

    I work in the oil & gas fields, and when hired six months ago by the company I work for, my weekly hours were hovering around 80 per week. (We work 16 hr shifts each day). Two months later, there was no work for three weeks, thus no hours, no in...

    Drew’s Answer

    While I do employment law, I don't have a lot of experience with unemployment benefits. However, I would call the West Virginia unemployment office near you and discuss the situation. They can tell you whether you can now file for unemployment benefits under the theory that you have substantively been laid off, regardless of whether your employer is communicating that to you.

    You probably already know this, but, because West Virginia follows the employment at will rule, you have now legal claim (at least based on the facts you set out) against your employer for cutting your hours.

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  • Can my former employer withhold my last paycheck

    I resigned verbally and in writing from my position and gave 30 days notice, according to my employee agreement. The employer and his scheduling staff began giving me busy work, sending me to work locations I did not typically go to, sometimes in...

    Drew’s Answer

    You should talk to a lawyer who specifically knows Missouri law. You might also be able to find out about Missouri wage law on your state's web site, and many states have consumer numbers you can call to ask questions.

    What follows is generalized advice, based on my knowledge of West Virginia and Texas law. Most (but not all) states have laws governing when an employer must pay you and under what circumstances they can withhold or offset a pay check. Employers must typically (but it depends on your specific law) pay you within a certain number of days of your last day worked, and sometimes that period of time depends on whether you resigned or were fired. Given the fact that you resigned, I suspect your law requires your employer to pay you all amounts owed by your next regularly scheduled payday (following your last day) The same time frames (whatever they are in your state) will probably also apply to benefits and non-salary compensation like mileage reimbursement. So if your final paycheck was due 3 days ago, it may be that your employer is acting improperly, but you should still get specific advice from someone who knows Missouri law.

    If Missouri law says your employer is now violating your rights, you need to check to see whether you are supposed to file an administrative complaint with some government agency, or whether you can file suit.

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  • Can someone be legally terminated via a text message AND for a supervisors story being inconsistent with mine?

    Must clarify history to understand current situation. When I was 21 I was terminated from a company for failing a drug test. I am over 30 and do high rise window cleaning now. My current company was contracted to do work for the previous company ...

    Drew’s Answer

    Based on the limited information in your description, it is very unlikely that your termination is unlawful. Your state follows the employment at will rule, which means that an employer is allowed to lawfully terminate an employee for a good reason, a bad reason, or no reason at all. Whether your version of events is different from that of your supervisor is of no consequence legally (at least based on these limited facts). There is no legal requirement as to any method of termination. So an employer is perfectly free to terminate you by phone, by email, by text message, etc. Employers in most states are not required to give any reason for a termination, and are not required to give you a letter terminating you. I am assuming for this answer that are not a union member, and that you do not have an employment contract. Drew Capuder

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  • I was fired for a confrontation witrh a manager. some other employees were fired for the same reason but got there job back.

    I was recently emplyed at this resaurant and was fired. I was fired for a confrontation with a manager. I have called the district manager and the owner. I never recieved a call back from either of them. I would really like to sit down with either...

    Drew’s Answer

    Based on the limited information you have provided, there is nothing unlawful about your employer's action.

    Your positive work history, and your apology, do not give you any legal right to be free to arbitrary or different treatment.

    The employment at will rule, recognized in West Virginia, says that an employer can fire you for a good reason, a bad reason, or no reason at all; but an employer cannot fire you for a reason the law prohibits.

    Prohibited reasons for termination will fall into one of two broad categories:

    1. Your status: An employer cannot take action against you because of protected status, like your age, gender, race, disability, religion, and national origin.

    2. Your conduct: An employer cannot take action against you for something you did or said, where the law treats what you did or said as protected against an employer's adverse action. Examples of protected activity on your part include: you complained about race discrimination against you or other employees, you testified in support of a co-workers discrimination claim, you were injured at work and filed a worker's compensation claim, you took 2 days off because you had jury duty, you complained about your employer breaking the law, and you complained about financial reporting irregularities at your publicly held employer.

    If your employer is not motivated by one of these types of status or conduct, then your employer can discriminate against you in virtually any other way. These are examples of lawful discrimination: Your employer discriminated against you because: your boss thought you were ugly, your show laces didn't match, your boss was jealous of you, you didn't live in the same neighborhood as your boss, you weren't in the favored social clique at work, you wear a beard, you don't wear a beard. All of these motivations on your employer's part would be legal.

    So in looking at your employer's decision to fire you, and not bring you back to work, even if your employer brought back other similarly situated employees, I would want to find out why your employer treated you differently than the others. That discriminatory or differential treatment is lawful unless you can prove that the employer had an unlawful motivation. And the potentially unlawful motivation would be the items I identify in numbers items 1 (status) and 2 (conduct) above.

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  • Can I lose my job for bettering myself?

    I work for a company that helped to pay for my schooling to become an RN but now that I am ready to finish they tell me that I cannot work there as an RN but I can continue to work there as an LPN is that legal?

    Drew’s Answer

    Yes, that is legal, based on the limited information you have provided. If an employer provides you the benefit of paying for your tuition toward a particular degree or position, there is no requirement in the law that says the employer must move you or promote you into the position for which your schooling prepared you.

    It might become more risky for your employer if there was a position at your wokplace for an RN position, where your employer chose note to put you in the RN position. Again, without more facts, that decision is not illegal. But I would then want to know who they put into the RN position, and I would want to know the race, and gender, and age, and disability characteristics of the persons working as an RN at your workplace, and then I would look at your characteristics. I would be looking for whether there an argument that your employer is discriminating in deciding who will become an RN.

    But without evidence that your employer is applying a discriminatory preference for certain groups, there is nothing illegal about what your employer has done.

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  • Can my employer decide to cut my pay by $.50/hour without consulting me?

    I am an hourly employee in a very big energy company. The other girls in the office and I were told today that we would be receiving a pay cut of $.50/hour. I work 40 hours/week. Can he do this without consulting any of us before hand? There a...

    Drew’s Answer

    The short answer is your employer can lawfully cut your pay without consulting you, and they can cut your pay for any reason (good or bad) as long as their motivation is not specficially prohibited (such as, if they were cutting the pay only of women, and not of comparable men). In cutting your pay, there is no legal obligation to first consult you. Texas follows the "employment at will rule", and that rule would say that can cut your pay "for a good reason, a bad reason, and no reason".

    That is the general rule, and there may be applicable exceptions. Here are the situations where your employer may not be able to lawfully cut your pay:

    1. They cannot cut your pay below minimum wage, if minimum wage requirements apply to you.

    2. They cannot cut your pay for discriminatory reasons, such as (as I note above) cutting the pay only of women and not of comparable male employees.

    3. They cannot cut your pay if they are retaliating against you for complaints about discriminatory treatment of employees, or if they are retaliating against you for complaining about illegal behavior (but protected whitle blower status depends on what whistle blower law might apply, and it is very hard to generalize here).

    4. They cannot cut your pay if you have an individual contract or a union contract that imposes some restraints on their ability to cut your pay. You would have to read the contract to determine your rights.

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  • Regarding employment law

    How long does a lawyer have to file a complaint against the former employer for violating FMLA

    Drew’s Answer

    In the answer I posted a few minutes ago, I accidentally posted the wrong URL for the FMLA provision dealing with the limitations periods, 29 USC 2617(c). Here is the correct URL for the statute:

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  • Regarding employment law

    How long does a lawyer have to file a complaint against the former employer for violating FMLA

    Drew’s Answer

    The employee must file suit within 2 years after the date of the "last event" constituting a violation of the FMLA.

    However, if the employee establishes that the violation by the employer was "willful", then that period is extended to 3 years.

    These time periods are set out in 29 USC 2617(c):

    Here are the Department of Labor regulations interpreting the FMLA:

    My suggestion, in figuring out when the 2 and 3 years run out, is identify each and every event by the employer you are complaining about. If there is more than one event on more than one date, file suit within 2 or 3 years after the earliest of the events. The statute suggests the limitation period is from the "last event" you are complaining about, but there is difficult and sometimes conflicting law applying limitations principles in employment law, and the safe course of action is to file within 2 or 3 years of the earlier of the dates, not the last date.

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