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Brandon, Esq.
Brandon, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 1848
Experience:  Has received a certificate of recognition from the California State Senate for his outstanding legal service.
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If an employee has sick time accumulated and needs to be out

Resolved Question:

If an employee has sick time accumulated and needs to be out for an illness, can the employer indescriminately put that employee on an "administrative leave "without pay?
Submitted: 1 year ago.
Category: California Employment Law
Expert:  Brandon, Esq. replied 1 year ago.

Employment-LawExpert :

Hello and thank you for your question today

Employment-LawExpert :

Are you online with me?

Employment-LawExpert :

Welcome to the chat

Employment-LawExpert :

Under the New York State Labor Law, payment for time not actually worked is not required unless the employer has established a policy to grant such pay. Holidays, sick time and/or vacations fall under 'time not worked.' When an employer does decide to create a benefit policy, that employer is free to impose any conditions they choose. Section 195.5 of the Labor Law states: "Every employer shall notify his employees in writing or by publicly posting the employer's policy on sick leave, vacation, personal leave, holidays and hours." If an employer does not have a written policy, the oral policy (or past practice) may be enforced - if the terms of the policy can be confirmed through an investigation. Moreover, violators of § 195.5 are subject to civil penalty.

Employment-LawExpert :

So, the direct answer to your question depends completely on what exactly the policy for sick pay is.

Employment-LawExpert :

If there is no written policy, then this would be unlawful if you are the only person not being allowed to use these benefits.

Employment-LawExpert :

Do you know exactly what the policy states?

Employment-LawExpert :

For example, does it specifically reference pay during administrative leave? does it state that vacation time is earned? Does it state that there is a forfeiture policy? Does it state when it can be used and under what conditions?

Employment-LawExpert :

Also, what is the reason behind the administrative leave?

Employment-LawExpert :

Did you take FMLA leave and did the employer decide to come up with a bogus reason to avoid trying to pay you?

Customer:

Let me explain further. I had a work related injury and was on worker's compensation. After several weeks out of work which I got paid for, I attempted to go back to work on "light duty" with my doctor's OK. My symptoms & pain got worse, & my doctor advised me to stay out of work again. This is when they put me on Administrative Leave without pay.

Employment-LawExpert :

Okay, so you actually have a much larger claim against this company for retaliation based on you engaging in a protected right (i.e. your workers compensation claim) You should highly consider getting an attorney involved at this juncture as what this company is doing is unlawful and has subjected themselves to significant damages. If you decide to hire an attorney, a great resource is www.Martindale.com. This is a nationwide directory that is useful in finding highly qualified legal specialists in various fields of law. The lawyers in Martindale are not selected because they paid to be included, but rather because they have been rated by other attorneys as qualified experts in their field. Consider consulting with two or three different attorneys prior to selecting the one you feel most comfortable with.

Employment-LawExpert :

In short, you have a number of claims that open up from this action which will result in unpaid wages, emotional damages, and possible punitive damages

Employment-LawExpert :

This is because their "administrative leave" is in direct response to 1) your newfound disability, and 2) your filing of the workers compensation claim. The only defense to this would be if they had a "legitimate business interest" in putting you on such leave, i.e. you engaged in some form of misconduct or put yourself or others at risk

Employment-LawExpert :

Does that make sense?

Customer:

Yes, it does. Would these claims be handled along with the worker's comp issue, or is it handled separately?

Employment-LawExpert :

They are separate claims, however, a workers compensation may decide to handle them as well. If you have a workers compensation attorney you can definitely ask them if they would be willing to do this for you. Otherwise, you will want to find an employment attorney in your area. The end payments on your case would be completely separate from that granted under workers compensation law

Employment-LawExpert :

I meant to type "a workers compensation attorney" above

Employment-LawExpert :

You would ultimately file a workers compensation retaliation complaint with a Fair Labor Standards Act (FLSA) claim filed as count II. The employer’s counsel can certainly try and remove the FLSA claim to federal court; however, the workers’ compensation count generally remains in state court, forcing the employer to either fight the claims on two fronts or concede jurisdiction for both claims in the state court.

Employment-LawExpert :

Do you have an attorney for your workers compensation claim?

Employment-LawExpert :

This means that you will likely succeed on your claim due to the increased costs your employer will accrue fighting this. Keep in mind that in these types of cases an attorney would take your case on contingency, which means that you would owe nothing out of pocket

Customer:

Yes, I have a workers comp attorney. When this admin leave first happened I did call him and informed him of what was happening. He said that when we go to the hearing the court will determine whether or not I should get paid for the additional time out, and that my employer would have to back pay me. Would the worker's comp hearing also decide on emotional damages & possible punitive damages as well?

Employment-LawExpert :

Did the attorney discuss amending the complaint to include retaliation?

Customer:

Not to my knowledge.

Employment-LawExpert :

So you do not receive emotional damage for workers compensation claims. You would receive backpay, however. That being said, you do receive emotional damages for retaliation claims. So, if the attorney amends the complaint to include new causes of action then the court could deal with this. Otherwise, they would not. You would need to specifically allege the retaliation and would base that retaliation on a number of actions, being 1) retaliation for filing the workers compensation claim, 2) discrimination based on your disability, 3) retaliation for requesting a reasonable accommodation under the ADA

Employment-LawExpert :

You should speak with your attorney first to inform them of your retaliation claims and ask them if that is something they handle. If they do not, then you should start looking for other attorneys (i.e. call a few attorneys off of Martindale) who will handle this portion of the claim for you

Employment-LawExpert :

But again, your attorney can do this, I just cannot tell you if they are doing this

Employment-LawExpert :

But if they do do this, then you would not just be entitled to backpay, but would be entitled to past and future lost wages, mental anguish, attorney's fees and possibly punitive damages

Employment-LawExpert :

Does all of this make sense?

Employment-LawExpert :

Please do not hesitate to ask additional questions or ask if you need clarification

Customer:

Yes, this does make sense. Just to see if I got it straight, I first need to ask my w.c. attorney to amend the complaint. If he does not handle that then I need to look for an additional attorney. Is that right?

Employment-LawExpert :

That is exactly correct. You will be asking if he will amend it to include retaliation and discrimination

Customer:

Got it! Thanks so much for your help. I cannot think of any further questions at this time. Oh, I just thought of one. Would any of this effect my job i.e. can they fire me???

Employment-LawExpert :

Not legally

Employment-LawExpert :

The law states that they cannot engage in "any adverse employment action" as a result of you engaging in a legally protected activity such as filing a workers compensation or retaliation complaint. Doing so can force them to 1) pay you for all of the types of damages I mentioned above and 2) reinstate you in your job

Employment-LawExpert :

Please do not hesitate to let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further. If you do not require any further assistance, I would be most grateful if you would remember to provide my service a positive rating, as this is the only way I will receive credit for assisting you.

Customer:

Okay then. I think that's all the questions I have. Thanks so much ......you've been very helpful.

Employment-LawExpert :

Not a problem. Have a wonderful rest of your day, and good luck!

Employment-LawExpert :

I am going to step out of the chat now. Before you go, please do not forget to provide a rating in the middle or above so that I may receive credit for assisting you today. If you have any additional questions, please feel free to ask for me specifically on the following link:

Employment-LawExpert :

http://www.justanswer.com/law/expert-accident-expert/

Brandon, Esq., Lawyer
Satisfied Customers: 1848
Experience: Has received a certificate of recognition from the California State Senate for his outstanding legal service.
Brandon, Esq. and 2 other California Employment Law Specialists are ready to help you

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Brandon, Esq.
Brandon, Esq.
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334 Satisfied Customers
Has received a certificate of recognition from the California State Senate for his outstanding legal service.