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Andrew Ross Frisch

Andrew Frisch’s Answers

33 total

  • Can I demand to be paid for mandatory training?

    I have a 16-week contract as adjunct instructor at a state university. I am required to take 20-25 hrs. of computer training. Unpaid. Is this legal.

    Andrew’s Answer

    This time may or may not be compensable. Typically courts will apply the "primary benefit" test. If the computer training is specific to the university's training system and the skills you learn are therefore not transferable to other settings, it is more likely to be found to be for the employer's benefit and thus compensable work. Here's a recent case discussing similar training time issues:

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  • Is it legal for the restaurant I work for to take 2% of my taxed sales as a tip share for kitchen employees?

    The restaurant I work for takes 3% of each servers total sales as an automatic tip share. 1% goes to the bartender(s) and the other 2% goes into a pool that is split between every kitchen employee and the food runners. Hostesses receive no tip sh...

    Andrew’s Answer

    Tipped employees like you can not be required to share their tips with employees who have not customarily and regularly participated in tip pooling arrangements, such as dishwashers, cooks, chefs, janitors and management employees (i.e. General Managers or Shift Supervisors). Violations of the rules pertaining to tip pools will render the entire tip pool invalid and typically results in both minimum wage and overtime violations. Further, you may be entitled to a return of all tips you were required to contribute to the invalid tip pool. You should contact a Florida wage and hour attorney to discuss your rights further.

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  • How long do I have to wait for my last pay check?

    My former employer is trying to keep my last pay check from me. By that I mean they have my check, but refusing to sign it.

    Andrew’s Answer

    While some states have laws regarding the timing of payment for final paychecks Florida does not. However, the Fair Labor Standards Act (FLSA), a federal law applicable in all 50 states, requires that employers make payment of your final paycheck no later than the regular payday it normally would have been due.

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  • If I'm a salaried employee can they deduct my pay if I leave work an hour or 2 early?

    I don't understand how if I work 55 hours 1 week and get paid my normal salary with no OT and then the next week I work 37 and get deducted 3 hours. Is that right/legal?

    Andrew’s Answer

    • Selected as best answer

    Being paid on a “salary basis” means an employee regularly receives a predetermined amount of compensation each pay period on a weekly, or less frequent, basis. The predetermined amount cannot be reduced because of variations in the quality or quantity of the employee’s work. Subject
    to exceptions listed below, an exempt employee must receive the full salary for any week in which the employee performs any work, regardless of the number of days or hours worked. Exempt employees do not need to be paid for any workweek in which they perform no work. If the employer makes deductions from an employee’s predetermined salary, i.e., because of the operating requirements of the business, that employee is not paid on a “salary basis.” If the employee is ready, willing and able to work, deductions may not be made for time when work is not available.

    If your employer is making deductions for partial day absences as you indicate in your question, you are very likely entitled to overtime notwithstanding how your employer may attempt to classify your position. You may want to contact an overtime lawyer to discuss your rights.

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  • Am I protected by FMLA even if a doctor has a return-to-work date which is past the 12-week time line of FMLA?

    FMLA began on 2 Sept. 2014.

    Andrew’s Answer

    Typically, if you are not able to return to work within the 12 weeks provided by the FMLA, your employer does not have to keep your job open. That said, if you communicate to your employer that you will be able to return to work within the 12 weeks, and are in fact able to do so, the doctor's note alone will not prevent you from remaining under FMLA protection.

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  • I'm an exempt employee but getting my pay docked. Is this legal?

    For the last four months, my employer has been docking my pay. I'm salary/commission whichever is greater. Everytime I show up late they dock 1% of my pay, were talking minutes here. They're not adding any each day that I stay 2-4 hours after clos...

    Andrew’s Answer

    If your employer is docking your pay for partial day's absences or lateness, you are not truly salaried. The result is that they may not properly deem you exempt under the FLSA (federal overtime law), under any exemption that requires that you be paid on a salary or fee basis, and you are therefore likely entitled to be paid overtime premiums in any week in which you work over 40 hours.

    You should contact an overtime lawyer to discuss your legal rights.

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  • I work prn for private health care co. worked 47.5 wk,7.5 overtime but paid straight time $9.00 is this correct and what to do?

    I worked over 500 hours in overtime in 30 months time for a company as a cna.They paid me straight time and stated overtime pay is not allowed.$ 9.00 an hour is not competitive pay.In addition to that no mileage reimbursement pay either.The clien...

    Andrew’s Answer

    Employers who provide home health care services for individuals who (because of age or infirmity) are unable to care for themselves may or may not be required to pay overtime
    premium pay depending upon the type of services provided and the nature of the working relationship. CNAs and home health care aides may be considered exempt from the FLSA's wage requirements depending upon the nature of their work. Employees providing "companionship services" as defined by the FLSA need not be paid the overtime, as long as 80% of more of their time each week is spent providing such "companionship services."

    Although the law is set to change on January 1, 2015, as of now this exemption--if applicable--means that most CNAs who private in-home companionship services to those who are disabled are not qualified to receive overtime pay under federal law. That said, if you worked in a non-private home (i.e. in an assisted living facility) you were most likely entitled to be paid overtime premium pay when you worked in excess of 40 hours per week.

    You should contact an unpaid overtime lawyer to discuss your rights further.

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  • Can an previous employer withhold my pay because I left without notice?

    I quit an restaurant franchisee without notice and she did not offer direct deposit when I was hired. I have sent self addressed stamped envelopes with letters asking to send my paychecks and have not received them yet. I left her employ in MAY! ...

    Andrew’s Answer

    • Selected as best answer

    No, an employer cannot withhold your pay, regardless of the reason for your separation of employment. Under both federal law (the FLSA) and Florida law, an employer is obligated to pay your final paycheck on or before the next regular payday following the date of your separation of employment. If the employer fails to make payment by that date, they are typically liable for the amount of the unpaid wages, an equal amount as liquidated damages, attorneys fees and costs, to the extent you bring a successful lawsuit to collect the unpaid wages.

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  • How many hours can an hourly paid employee volunteer to their employer?

    Without being in violations of Hours and Wages Laws. What are legal guidelines for internship and volunteering?

    Andrew’s Answer

    • Selected as best answer

    The Fair Labor Standards Act (FLSA) defines the term “employ” very broadly as including to “suffer or permit to work.” Covered and non-exempt individuals who are “suffered or permitted” to work must be compensated under the law for the services they perform for an employer. Internships in the “for-profit” private sector will most often be viewed as employment, unless the test described below relating to trainees is met.

    Interns in the “for-profit” private sector who qualify as employees rather than trainees typically must be paid at least the minimum wage and overtime compensation for hours worked over forty in a workweek.

    The Test For Unpaid Interns

    There are some (very limited) circumstances under which individuals who participate in “for-profit” private sector internships or training programs may do so without compensation. The Supreme Court has held that the term "suffer or permit to work" cannot be interpreted so as to make a person whose work serves only his or her own interest an employee of another who provides aid or instruction. This may apply to interns who receive training for their own educational benefit if the training meets certain criteria. The determination of whether an internship or training program meets this exclusion depends upon all of the facts and circumstances of each such program.

    The following six criteria must be applied when making this determination:

    1. The internship, even though it includes actual operation of the facilities of the employer, is similar totraining which would be given in an educational environment;
    2. The internship experience is for the benefit of the intern;
    3. The intern does not displace regular employees, but works under close supervision of existing staff;
    4. The employer that provides the training derives no immediate advantage from the activities of the intern;
    and on occasion its operations may actually be impeded;
    5. The intern is not necessarily entitled to a job at the conclusion of the internship; and
    6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

    Only if ALL of the factors listed above are met, will it be found that an employment relationship does not exist under the FLSA, and the FLSA's minimum wage and overtime provisions do not apply to the intern.

    This exclusion from the definition of employment is very narrow because the FLSA’s definition of “employ” is very broad.

    If you believe you have been misclassified as an "intern" or "volunteer" when you are really an employee, you should contact a wage and hour attorney to inquire about your rights and whether you might be entitled to unpaid wages.

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  • How can I prove that an employer denied me employment based on my credit history

    I understand that the federal law requires that a potential employer must disclose first to the applicant that a credit report may be obtained and that they must get the applicants written authorization. That never happened with me and on a few oc...

    Andrew’s Answer

    Under the Fair Credit Reporting Act (FCRA), if an employer takes negative action against an employee or applicant, it is required to make the credit report on which it made such a decision available to you. Further, the law prohibits an employer from running a credit/background check on an employee or applicant without their consent. If you believe your employer has violated either or both of these provisions you can request a copy of the background check, if any, performed.

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