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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 12622
Experience:  Significant experience in all areas of employment law.
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I am a corporate exempt employee who is a diabetic and had

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I am a corporate exempt employee who is a diabetic and had thyroid cancer. I have been with the company for 23 years. Two years ago they switched my job (totally different-never handled that type of work no training) and proceeded to reduce the number of employees on my team (8 to now 4). Comparing my workload from 1/2012 to 7/2012 to 1/2013 to 7/2013 my workload has increased approximately 57%. My workload has been significantly higher than a co-worker of the same level. I have been told that since I'm an exempt employee that I need to work as many hours as I need too to get the job done. I'm working 10-11 hours a day. All of my past performance appraisals have been rated either meets expectations or exceeds expectations. I was put on a development plan in July and have been told that plan will be escalated since I have not shown enough improvement, and have to show a willingness and an ability to improve my performance. I understand that IL is an at will state, however, can an employer technically force an employee out/set them up to fail? Do I have any recourse? Which Department can I possibly file a complaint with to determine whether or not the work is correctly designated as exempt? The reason why the team has decreased is the firing of one employee in 4/2012 another employee in 7/2012 a third employee was written up in 12/2012 but conveniently went on medical leave when the time was up and has been on medical leave since 1/2013 and they have been holding her job open for her based on her filings. The fourth employee applied for another position in the company, but was rejected for that position an was offered a job in a run off department, but he did not know that at the time the job was offered to him. It is common knowledge that the company does not do RIF'S anymore they just push the workloads and force people out. All of my co-workers who were let go conveniently are over 40 years old and were part of the team where the work got transferred to another state two years ago. Thanks for reviewing this matter.
Hello and thank you for entrusting me to assist you. I am very sorry to hear about your incresing workload and completely appreciate your concerns here.

With regard to your position being exempt, that depends on the specific nature of your job. What is it that you do precisely and what specific exemption is your employer saying applies?

Also, you mention age and disabilities. Do you have any evidence to suggest that these may be underlying reasons for the treatment you are now experiencing?

I very much look forward to helping you on this matter.
Customer: replied 3 years ago.

I am insurance claims adjuster who is not paid hourly. The company has us working two computer systems and I question whether or not the job should be reclassified as non-exempt based on the identical tasks that we are now doing on the files. We are also doing administrative work. HR has indicated that I need to work as long as I need too to get the job done, but physically I can't work more than I already am. I've been told that it is not the workload but my productivity. Other claims individuals settle claims, send releases and close the file without having a signed release in the files so their closing percentage is higher and their pending is lower. Which I have evidence of. I have asked questions on the workload and how staffing is determined since an explanation was offered but no true explanation was given. I do not have evidence of age discrimination. I expect I will be replaced by two employees who may be younger than I and who may be paid less then I do. I have evidence that my manager said another office would assist during vacation, but that did not happen per his directive. My co-worker was added to the team last November he is 25 yrs old. He was told when he was transferred to the team he was going to be a Tier2 when he was added to the team. From Jan to April he & I were both Tier1's. I received more claims than he did. He was promoted in May when Mgmt allegedly found an unused Tier2 position from another office. But mgmnt could not replace the person who went on medical leave and they are still holding that job open. They could not get approval for another Tier1, now magically they found another Tier1 position and my performance has been escalated. Before this happened my mgr told me that even if they did get another position I would not be successful on this team. In May I had applied for another position in the company prior to this comment and was not interviewed. The day after my mgr made that comment to me about not being successful on the team another team was joking across from us and he makes the comment, Linda maybe you want to join that team. This is probably only just unfair and not illegal, but if they have done this to multiple employees does that not change things?


Thank you very much for your reply. I am so sorry to hear about all this and agree that it is extremely unfair.

In addressing your concerns, I hope you will not mind if I start with the negative. Employers enjoy vast discretion with regard to the way in which they are permitted to run their business. Generally speaking, there is no law which prohibits unfair treatment or bad management, and employers can hire, fire, demote and promote for virtually any reason they choose.

The notable exceptions here are in the area of public policy. Employers may not demote or discriminate on the basis of a legally protected trait, such as race, religion, gender, age or disability. Employers also may not take adverse employment action in retaliation for employees engaging in certain legally protected activities (I'll touch on that more in a second).

You indicate that someone younger than you has been promoted, and that is perhaps indicative of age discrimination, but as you likely suspect, you will need more evidence than that to prevail on a discrimination claim. Plaintiffs always bear the burden of proving their case by a preponderance of the evidence, and so unless you have additional evidence of discriminatory intent (i.e. a company-wide practice of favoring younger employees, derogatory comments made about your age, etc.) you would not fair well in court. IF you do desire to make an age discrimination claim, a pre-requisite to that would be to file a complaint with the EEOC, which you can learn about here:

The area of concern I see is with regard to your "exempt" status. The Fair Labor Standards Act begins with the presumption that all workers are entitled to overtime. Only those workers who have positions that fall within a specific statutory "exemption" can be paid a flat salary without regard to the number of hours worked.

The most common exemptions are those for managerial employees, administrative employees who run the company, and "professional" employees, such as doctors, lawyers, and CPAs. See here for more information on the common exemptions:

The job duties you have described would NOT appear to fall within any statutory exemption from overtime. However, it is impossible for me to make any sort of definitive statement with regard to your particular position.

I would strongly recommend that you consult with a local employment law attorney to see about making a claim for unpaid overtime. The good thing about making such a claim, and what I was alluding to above, is that employers are legally prohibited from retaliating against an employee for filing a wage claim. This is one of the few exceptions to the general principle that employers can manage their business as they see fit--employers cannot take adverse employment action against a worker for asserting their right to be paid overtime.

Filing a claim for unpaid overtime would give you a plausible argument that any subsequent adverse employment action taken against you was in retaliation for your claim. If you could link a demotion or termination to your overtime claim, that would have an entirely separate claim for damages, regardless of how your overtime claim itself resolved.

To locate an employment law attorney in Illinois who can assist you with your claim, see here: Again, while most of what you describe is not illegal unless you can specifically link it to age discrimination or some other specifically unlawful motive, the limited facts you have provided would tend to indicate that you may be improperly classified as "exempt." That being the case, your best course of action would typically be to file a wage claim, which would entitle you to unpaid overtime and largely insulate you from further adverse employment action, which you could argue was retaliatory.

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, please be so kind as to provide a positive rating of my service so that I may receive credit for assisting you. Very best wishes to you and thank you so much for coming to Just Answer.
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