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Dimitry K., Esq.
Dimitry K., Esq., Attorney
Category: Employment Law
Satisfied Customers: 41221
Experience:  I provide employment and discrimination law advice in my own practice.
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Hello, Bear with me, as this is rather involved. I was

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Bear with me, as this is rather involved. I was the manager of a technical group and was by all accounts a "rockstar employee". I averaged about 100 hours a week, was oncall 24x7x365, was promoted regularly, and received rave reviews from lateral peers, direct reports, and upper management. Everything was going swimmingly until a new director came aboard early in the year. He decided to have my team start working 15 hours of "mandatory overtime" each week, which is legal as our office is in VA.

I called a meeting, explained the expectation and smoothed things over with my team. During that meeting, the need for an on-call came up and we drafted a plan where everyone participated, but the oncall was only used when someone called out sick or there was an emergency. Several team members asked me if "it was legal" to make employees work mandatory OT AND work oncall. I checked and explained that it was legal, provided there was no requirement to remain in the vicinity of the office (these guys all live an hour or more away) and the call volume was not overly onerous.

That was taken in stride, but exactly one week later our new Director suddenly decided to revamp our oncall policy to mandate every employee work a period of 24x7 coverage for 1 week, starting IMMEDIATELY. The change from the previous policy was that the oncall would AUTOMATICALLY take queue calls like a regular employee on shift during the busy hours in the evening and afternoon. He wanted me to engage the oncall currently on duty, when we had more than ample coverage on the shift, *just* to send the message that oncall was now "another tech on the phones". I asked for the details of the new expectation in an email, and he answered with the following list:

While oncall, you must:

1. Be within 15 minutes of the office
2. Use your own phone and laptop, we do not provide them
3. Be available IMMEDIATELY 24 hours a day, for the seven day period, to dive in and troubleshoot via laptop.
4. You must still work your regular shift, as well as extra 15 hours of mandatory OT
5. While oncall, even though you are engaged to wait for the benefit of the company, you will only be paid for actual time spent on the phone.

...I wrote him back "I strongly believe this is a violation of the FLSA law, as you are attempting to skirt the law and force people to work unpaid overtime. To my knowledge, what you are asking me to do is not legal and I must respectfully XXXXX XXXXX order to avoid breaking the law. I hope you understand, I am not being insubordinate, merely invoking my rights and the rights of the team, and trying to save the company from exposure to a lawsuit". I also sent copies of the Supreme Court case law where it was decided that firemen required to stay near the firehouse and respond within 15 minutes had to be compensated for "waiting time".

He went on to call me and scream into the phone about how he would "get rid of anyone who had a problem with it" and emailed another employee that he was to be ready to work for his oncall shift starting that weekend, to which that employee replied by invoking his FLSA right to not work unpaid overtime. Two days later (Friday), I was backhandedly demoted via a humiliating public email sent to the whole company by another Director. The following Monday, I was demoted again in a face to face with MY Director. I was wise enough to record the conversation with my cellphone, which was in plain view. I also checked and discovered that VA is a "one party consent" state and our employee manual states no rule against it and also says "No employee shall have any expectation of ANY privacy anywhere on company property, other than the restrooms". I figured I was within my rights, and I knew I was about to get an underhanded blow that would be denied later.

It is obvious that the demotion was related to my stance on the law and that we would be breaking it in order to score some free overtime. The conversation was civil, but ended with him telling me "You are not in ADP's (the provider of our payroll services) system as a manager or team lead, so I am putting you back out on the floor as a tech. It isn't a demotion, as technically we have no record of you being a manager."

I was aghast. "So, you have introduced me as the manager, let me manage the team (which I did for 10 months before you even came aboard!), told customers I was the manager, and now you are going to pretend I never was? It was a paperwork error?"

He said "I'm new, so I never knew what your position was...."

I said "Sir, I am one of the only TWO direct reports you have. You can seriously sit there with a straight face and imply you didn't know what my function was for two months?!?"

To his credit, he couldn't do it with a straight face...he was laughing. Meeting adjourned.

Submitted: 4 years ago.
Category: Employment Law
Expert:  Dimitry K., Esq. replied 4 years ago.
Thank you for your question and thank you for your patience. My apologies on the delay, I very carefully reviewing your question.

I will make a couple of points and ask a bit before I post a response. There is no such thing as a pure 'slam dunk'--while you may see it as one way, there is no guarantee how a judge would see it. I am also unclear on the timeline. How quickly after the initial denial did it take you to be terminated? I am also a bit unclear on the attorney situation. This is a contingency case if it is strong--is that an issue for you, or are you looking for someone for a flat fee?
Customer: replied 4 years ago.

I was demoted two days (on a Friday) after the denial, I was terminated three weeks later while on FMLA. I would be willing to pay contingency, but not a third. I would rather pay hourly, as I feel the case could not be stronger. My title shouldn't even be an issue, as the statute protects my essential duties and work environment, right? I am not seeing a cogent defense by the company here, other than the weak pretext of "a reduction in force", which falls apart when you consider that my colleague and I were the only ones in our dept. "reduced". In short, the demotion is the FLSA issue vs. the termination, which was a reaction to my FMLA leave. The meeting was called two days after I went on FMLA, and scheduled for the day before I was to return. Obviously, they decided while I was on FMLA to go with a pretext of a reduction in force...yet everyone else who was "let go" is still working there permanently. I see them every Thursday night for chicken wings. ;)

Expert:  Dimitry K., Esq. replied 4 years ago.
Thank you for your follow-up, Kevin.

Those sound like excellent company (the teammates, that is). Please give me a moment to craft my response, I honestly believe that this is the longest question by far that I have ever had to respond to, and it is taking me a bit to ensure I do not miss anything. Kindly excuse the delay.
Customer: replied 4 years ago.
No problem. This is certainly a rather involved set of circumstances, I appreciate your thoroughness.
Expert:  Dimitry K., Esq. replied 4 years ago.

Thank you for your follow-up, Kevin. You asked a very detailed question. If I miss anything, please follow-up, it was not by intent.

You posted:
1. What should I be entitled to? My yearly with OT (I have all the records) was about 270k. I also lost 100k shares of private stock options, was humiliated in a public demotion with no warning, and demoted again in a (recorded) face to face. I was terminated `while on FMLA leave, ostensibly as a "reduction in force", but the only reduction was me and someone else closely involved. I was forced to participate in several weeks of a sham investigation, led by one of the ringleaders. I lost almost 6 years of effort and flawless performance records. I lost an additional 10% quarterly bonus, accrued PTO and seniority. I have had panic attacks, constant pain from two teeth I was getting fixed before I lost my income and insurance. My girlfriend was so stressed, she miscarried the baby we had been trying to have for a year in the third month of her pregnancy. The company is now telling my future employers that "He was never the manager, he is lying on his resume", so that is certainly making life difficult. If you were me, what number would you start at? In my field, I will be lucky to be in the spot I was ever again. We're talking about a 5 billion dollar company with about 500 employees.
The short answer is that you are entitled (if you prevail) of you base salary of up to 2 years, and all additional bonuses or expected earnings that you lost due to the termination. Here is where the courts may balk at overtime but if you can show by past stubs that the OT was regular and expected, and the earnings were expected, the courts tend to permit it. You can also potentially ask for attorney fees and punitive damages. Punitive damages are granted by the judge at his discretion and can be unlimited, although they tend to be no more than 3 times the salary limit. Punitive damages are granted where conduct is particularly egregious. Employment law claims are simply not as lucrative as people consider them to be.

2. Does the only other gentleman let go (for not signing the backdated and inexplicable form) have any recourse standing behind me in a collective action? He had invoked his FLSA rights just weeks before and was punished for it.
You do not have enough for a collective action. For a class action you need more than two, and having you both sue together ends up lowering your mutual limits. It would be wiser to pursue separate claims.

3. What are my options when it comes to separately suing the bad actors here, namely the Chief of Staff and Director? Would it all have to be together? These people knew EXACTLY what they were doing, that it was illegal, and didn't lose a wink of sleep.
You can add them as co-defendants when suing the company. You could also consider filing a defamation of character claim against them as well.

4. Is the termination while on FMLA a seperate case? I was let go when members of (my) team who had been WRITTEN UP were retained. There is no controversy that out of the 18 members, I was most senior AND most technically adept. 3 weeks before, I had received a 200% bonus when other peers in my bonus program were all given 125%. 1 week before, I have the same director who demoted me, RECCOMMENDING ME FOR A RAISE. I also have several witnesses to a conversation that day, where he said "If they don't give you this raise I am submitting you for, I have doubts about my own future with this company. You deserve it, without a doubt". If anyone in that group was promoted, and now 4 of them have been, I would have been the OBVIOUS choice. The "reduction in force" was pretext to send a clear message to the rest of staff. It worked...those who didn't leave now put up with whatever shady business these guys put out there.
FMLA is an another violation, and it is also based on retaliation and wrongful termination since it gives you a right to claim both FMLA (discrimination), retaliation, but also arguably whistleblowing. The 'reduction in force' is wrongful termination and likewise retaliation.

5. I have interviewed 4 law firms, all of whom are interested in taking the case. I let go of my initial lawyer, as I didn't feel she was devoting enough attention to the matter. She inadvertantly copied the Director on 2 email chains that were private between us. The other 3 only want to take the case on contingency, but I feel that they would be walking with too much $. 400k in fees if I win and a THIRD of the settlement...frankly, I deserve that settlement since this should be in the bag, I have amassed SO MUCH EVIDENCE of everything, and have the demotion recorded. This seems to me to be a "slam dunk", if such a thing exists. I want someone who will either negotiate the % of the settlement, work hourly, or work with me on a hybrid % and hourly. I know they see dollar signs, but much easier could it be? Are lawyers generally open to negotiate this?
You are likely not going to like my response here but it would be remiss of me not to say it. Generally you get what you pay for with attorneys. Those on contingency tend to be hungrier and willing to go for a larger settlement. You can absolutely negotiate or offer different fee structures, but being a law firm is a business that has expenses. I am not advocating contingency or flat fee or a hybrid, merely stating that if an attorney does not see a good payoff, he won't take your case. Sometimes those with dollar signs are the best...but never think that because it looks easy that it is easy. Employment cases are very tough to win, even in ideal circumstances. If you offer flat fee, you can do so, but then prepare for a very large up-front retainer.

6. Any advice? I feel a tad overwhelmed fighting a company with billions to throw around, though I feel I have an airtight, albeit complicated, case.
I cannot offer you advice, I am sorry about that--I am not your attorney. But I can suggest that you speak with a few attorneys and listen to what they say about their theory of the case--ask them about the weaknesses and ask them about what they realistically see as an outcome. Those that try to sell you, well, that would be their loss, but the ones that tell you the truth as they see it, even if you do not agree, they may be worth hiring. Right now you think you have a case but you have nothing tangible--you merely have a potential payout. That is the better way to approach it.

Good luck.

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