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Andrea, Esq.
Andrea, Esq., Lawyer
Category: Employment Law
Satisfied Customers: 11710
Experience:  25 yrs. of experience in employment law, real estate and business law, family law, criminal defense and immigration.
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#1) My husband was promoted to a management position which

Resolved Question:

#1) My husband was promoted to a management position which made him salary.
He was working 50 - 60 hours a week hourly.
After being promoted to mngmt/salary (without notice) while he was on vacation, having just completed a 60 hour week, He lost all his overtime d/t becoming salary.

#2) After accepting this position, he is still working a minimum of 50 hrs a week AND they let go 3 of his key supervisor/assts. He has been working and responsible for their jobs as well as his own. (they have told him they do not intend to hire replacements)
His entire workforce is comprised of temps, which change daily.

#3) When he was hired in to this company, he was told to " Watch his back" by two of the key upper management employees, one of which did the hiring. His health is suffering as he is a severe Asthmatic and much of what he is doing now, was not what he was hired to do and is physical. This along with constant "mental games" is causing visible stress ie, fever blisters, exacerbations of his asthma, ulcers etc.

If he was to quit.....would he be protected under any labor laws? could he draw unemployment? He could prove much of the above and has witnesses that would testify.
He is a respectable, honest, dependable, loyal and has never been in a situation like this.
Submitted: 1 year ago.
Category: Employment Law
Expert:  Andrea, Esq. replied 1 year ago.

Hi, my name is XXXXX XXXXX I will be glad to assist you,

 

 

I am so sorry to hear what your husband is being subjected to at his place of employment,

 

1. First, your husband must be paid for all the overtime he worked before his promotion. An employer cannot take away overtime pay which an employee has already earned. Your husband had already worked those overtime hours and earned overtime pay before he was promoted. An employer cannot deprive an employee of overtime pay, using the promotion as an excuse. It is illegal and it is in direct violation of the Fair Labor Standards Ace which is Federal law and there is no way that your husband's employer can get around this. He should speak to his employer, or the payroll department and ask that he be paid for all overtime hours he worked prior to his promotion. If the employer gives him a difficult time, your husband should not get upset, or waste his time trying to convince them that he is entitled to overtime pay. He should just say "Thank you" and then go directly to the District office of the US Department of Labor, Wage and Hour Division which I have listed below:

 

 

Indianapolis District Office
US Dept. of Labor
Wage & Hour Division
U.S. Courthouse
46 E. Ohio Street
Room 413
Indianapolis, INNNN-NN-NNNN/p>

Phone:
(317)(NNN) NNN-NNNNbr/> 1-866-4-USWAGE
(1-866-487-9243)

XXXXX XXXXX
District Director

South Bend Area Office
US Dept. of Labor
Wage & Hour Division
XXXXX
Suite E
South Bend, IN 46628

Phone:
(574)(NNN) NNN-NNNNbr/> 1-866-4-USWAGE
(1-866-487-9243)

Danielle Kline
Asst. District Director

 

 

Your husband can choose to file a claim with the Indiana Department of Labor and should he choose to do so, he can click on the following link where the Indiana Department of Labor has an online "Wage claim form" which he can fill out:

 

http://www.in.gov/dol/2734.htm

 

2. Giving an employee exempt status and putting him on salary has always been more beneficial to the employer rather than the employee because the employer can have the employee working ungodly hours without having to pay the employee overtime. Being on salary, your husband's employer expects him to work more hours than an employee who is an hourly wage earner. However, if your husband's asthma can be placed in the category of a "disability", then he would have the protection of the Americans with Disabilities Act (the "ADA") which provides that an employer must make "reasonable accommodation" for an employee with a disability and that would be something which your husband would discuss with his doctor and the doctor would write a brief letter to his employer, very briefly explaining the nature of the disability and what "reasonable accommodations" the employer would have to make to accommodate your husband. He should do that as soon as possible before his asthma gets worse since there is no need for him to be suffering like this;

 

3. If your husband left his employer, it is very difficult to say in his situation if he would be eligible for Unemployment Compensation Benefits. If I were in his position, my primary arguments would be that (a) This is not the position for which he was hired; (b) He is expected to do the work of the three people that were layed off in addition to his own work, and this is humanly impossible; Employees should not have to jeopardize their health and their life to meet the employer's unreasonable profit expectations; (c) The employer did not discuss the duties of the position when they told him he was promoted and it was only "after the fact" that he was told of his duties, that they were laying off people, and that these employees would not be replaced.

 

That should be enough to make your husband eligible for Unemployment Compensation benefits if his work becomes so unbearable that he has to sever his employment relationship with his present boss before he finds more suitable employment,

 

 

Please be kind enough to rate Excellent Service" so that I receive credit for assisting you, it will not cost you anything additional to give me a positive rating, and that is the only way I can receive credit, Thank you for understanding,

 

If you receive a Customer Satisfaction Survey from JustAnswer, Please rate a 10 as it gives me a greater opportunity to assist other customers on this website and is greatly appreciated,

 

Thank you for allowing me the opportunity to assist you,

 

ANDREA

 

 

Customer: replied 1 year ago.

Thank you Andrea....a ten indeed. This is a start for us. I felt that there must be something to protect him from this. He is being bullied. He was told that he should use the temps as his assistants, Yet when he had a day off, the entire management team ( the day shift production manager, her manager and his bosses boss.) worked his shift together to insure that they got things done. As educated individuals, it is atrocious to see a toxic workplace such as this. He has witnessed more than one employ, bullied, set up, and then fired. I am truly concerned about his health. He is a hard worker, and a dedicated employee. Soon to be their loss I am afraid. Thank you for your time..

Expert:  Andrea, Esq. replied 1 year ago.

Hi, Tracy, You are welcome, I am glad I could help. Life is too short to waste any part of it, Please do not forget to leave a positive rating because that is the only way I receive credit for assisting you. It will not cost youanything additional to leave a positive rating, so Thank you for understanding,

 

I wish you and your husband the very best of luck,

 

 

ANDREA

 

Andrea, Esq., Lawyer
Category: Employment Law
Satisfied Customers: 11710
Experience: 25 yrs. of experience in employment law, real estate and business law, family law, criminal defense and immigration.
Andrea, Esq. and other Employment Law Specialists are ready to help you
Customer: replied 1 year ago.


Are you still here????


I have tried to send another message.


 

Expert:  Andrea, Esq. replied 1 year ago.

I am here, but I did not receive anything. Can you resend it ?

 

 

ANDREA

Customer: replied 1 year ago.


I went over my questions and your answer and Felt I needed to clarify something in #1. We knew a promotion was coming. He was not, however, told when or how it would affect him. He had been promised it was going to happen for weeks/ mo. He was expecting a change to his title. We thought it would be salary. Should they not have notified him of the promotion first and then processed it and started it out of his Next pay. Point being, he worked hard to earn extra for his vacation and was expecting the overtime on that check, and when he returned they had done this without telling him. They have been so dishonest with other employees that were under him making statements like " Lets just string him along" and promises of promotions to several people that they had no intention of promoting, but allowed them to think that they were. We are wondering if he is just the "next one" to be strung along.

Expert:  Andrea, Esq. replied 1 year ago.

It does not matter that he knew or was told that he would be promoted. They did not tell him what responsibilities he would have with the new position.

 

When the promotion gets processed is strictly a matter of internal policy. But it should have no effect on his overtime pay. He earned it and he is entitled to be paid for it, there is no question about that. And, if the employer thinks that he does not have to pay your husband for his overtime because he was promoted, the employer is in for a rude awakening. Your husband should speak to whoever handles the payroll to find out when he should expect it and if they tell your husband that he will not be paid his overtime, then, as I said in my previous Answer, he should waste no time, he should go directly to the US Department of Labor, Wage and Hour Division, and also report the employer to the Indiana Department of Labor,

 

Please be kind enough to rate Excellent Service" so that I receive credit for assisting you, it will not cost you anything additional to give me a positive rating, and that is the only way I can receive credit, Thank you for understanding,

 

If you receive a Customer Satisfaction Survey from JustAnswer, Please rate a 10 as it gives me a greater opportunity to assist other customers on this website and is greatly appreciated,

 

Thank you for allowing me the opportunity to assist you,

 

ANDREA

 

 

 

Customer: replied 1 year ago.


Okay! thanks again. I wanted to make sure that I communicated my question.correctly.. I appreciate your help.


 


Thanks again,


Tracy


 


 


Excellent Rating.

Expert:  Andrea, Esq. replied 1 year ago.

Thank you, XXXXX XXXXX you did not leave a rating. When a customer leaves a rating, I see it beside one of my Answers. Didn't a "Rating" button come on your screen asking you to rate the Expert ? If not, it should have,

 

 

ANDREA

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