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Dimitry K., Esq.
Dimitry K., Esq., Attorney
Category: Employment Law
Satisfied Customers: 37492
Experience:  I provide employment and discrimination law advice in my own practice.
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Im a salary employee as a safety manager for a trucking company.

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I'm a salary employee as a safety manager for a trucking company. I have been with the company for 9 1/2 year of which 2 years were as a CDL driver. Do to health and other personal reasons I have exhausted all vacation (2 weeks) and PTO (4 days). This is a first time occurrence since I have been with the company. Recently I missed 4 days of work helping to take care of my father who has Alzheimer. While I was off I continued to receive emails requesting my support, phone calls from my supervisor asking questions, I even had to work to have 2 semi-trucks apportioned in Manitoba. This occurs 10-15 times a day or more. After returning to work I was informed that because I only had 12 hours of PTO remaining they were going to dock my salary pay by 20 hours. I'm not paid by an hourly rate. It is very normal for me while not in the office have it be after hours, day off, vacation, sickness, it doesn't matter I'm contacted by phone, email or text several times a day and all hours of the night. Seldom and I mean if your lucky 5 times in the last 8 years there was ever an emergency of any type that I have been contacted for. The numerous times that I'm contacted for is normal everyday business, general business most often of very little urgency. I can and always have gotten past that part and have excepted it since I was paid my salary on a weekly basis. I'm ok with that if I don't have paid time off coming to me then don't pay me if I take off. The problem I have that if I'm not being compensated in anyway don't contact me and expect me to work for nothing. Can they force or require me to be available, support them as needed, make decisions that I can be held responsible for in a court of law and not have to compensate me. Can they have the best of both worlds. The work I perform outside of the office is no less then the work performed inside. If I were to decide that I can not except these conditions and leave would I have the right to file and receive unemployment insurance while between jobs.
Submitted: 10 months ago.
Category: Employment Law
Expert:  Dimitry K., Esq. replied 10 months ago.
Thank you for your question. Please permit me to assist you with your concerns.

To answer your question directly, an employer MUST legally compensated you for any work that you provide for them. If, for example, you missed 4 days of work but continued to receive calls from employees, managers, clients, and so forth, and continued to work, even in a limited capacity, you were not technically 'off'. Therefore you are entitled to compensation and payments. However, if when you missed work you were not contacted and did not work, then legally the employer can dock your time based on the amount you did not provide the employer.

As for unemployment, I am afraid you would not be eligible for benefits. Typically benefits are given under these 4 conditions:
1. If you are terminated without cause (a lay-off)
2. If you quit and prove that you were exposed to extensive and pervasive hostile work environment.
3. If the employer agrees to not contest your application.
4. In rare instances, if you quit because your spouse has to move for military or employment related reasons and you follow the spouse to the new state or locale.

Here, if you choose to quit, it would be a 'voluntary' termination which would exempt you from pursuing benefits.

Hope that clarifies.


Sincerely,

Dimitry, Esq.
Customer: replied 10 months ago.

Would it be considered a hostile work environment if after pointing out a serious DOT safety infraction that ownership was planning to do that the next day after they did it my job was threatened when told that if I couldn't be a team player I could be replaced? Our relationship started to plummet after that. I was also told by my supervisor who was present in that meeting the prior to it ownership told him he was going to knock safety off of it safety high horse. Would it seem inappropriate to give a title and raise to another member of the company only to have it reassigned to me less than 30 days and have received title alone with no compensation?

Expert:  Dimitry K., Esq. replied 10 months ago.

Thank you for your follow-up, Steve.

 

Typically a hostile work environment has to be extensive and pervasive in nature--it is not a one time event but a long and continuous behavior that is based on factors such as your age, gender, race, religion, national origin, creed, or disability. It can also be based on those who are whistle-blowers, but again it must not be one or two incidents. You can try to make that argument but I really do not see that as being enough.

 

Good luck.

Customer: replied 10 months ago.

So if I tell them that in the event that I take a day off that I will not be providing them any services and they terminate me because of it I will have a case. What about all of the vacation and PTO that I have had off and they have contacted me on everyone of then is that something as far as time or pay that I'm entitled to. I can prove it with emails.

Expert:  Dimitry K., Esq. replied 10 months ago.

Steve,

 

No, that would not create a case. If you take a day off without their permission, it would be considered 'abandonment' of your position and would give them every right to fire you--they would see it as if you chose to not come in without their permission. But if they grant you time off, unpaid, but continue calling you during your day off, make you work, and not pay you for it, then that would be a violate of state labor laws and would give you a right to file a grievance against them as well as demand that they pay you for your time.

 

Hope that clarifies.

Customer: replied 10 months ago.

Even for health reasons. I have COPD and some days I can't function in an office setting. As I mentioned before my father has Alzheimer and there will be time I will have to help with his care. Do I just tell them that I'm taking a FMLA day?

Expert:  Dimitry K., Esq. replied 10 months ago.
Steve,

Having a health concern does not permit an employee to unilaterally make a decision and not come to work. That is still considered to be abandonment and would give the employer the right to terminate since they can state and show that the employee failed to appear at work. As for FMLA, you first have to file for FMLA and get approved--if that happens and you obtain intermittent FMLA, then you can indeed take time--but even so it has to be approved of in advance, it is not treated as a comp day or personal time off that you can take at any time. You absolutely can take FMLA to help your parent, that is permitted, but you have to let the employer know in advance when that time would be.

Hope that clarifies.
Customer: replied 10 months ago.

Ok. And I really appreciate your advise. If I leave there to go to another job and I'm laid off at the other job, how long would I have to be working for them before I would be eligible for unemployment benefits?

Expert:  Dimitry K., Esq. replied 10 months ago.
Steve,

Glad to help, truly, even if the information is not always favorable. You generally would need to work for two full quarters (meaning 6 months) or so to obtain benefits for unemployment. Hence, changing jobs, is at times a risk. Here is a link that explains how the state calculates your benefits:

http://www.nolo.com/legal-encyclopedia/collecting-unemployment-benefits-illinois-32506-2.html

Good luck and take care!
Dimitry K., Esq., Attorney
Category: Employment Law
Satisfied Customers: 37492
Experience: I provide employment and discrimination law advice in my own practice.
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