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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Employment Law
Satisfied Customers: 116780
Experience:  20+ Years of Employment Law Experience
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My name is ***** ***** Branham. My husband was fired as a

Customer Question

Customer: My name is ***** ***** Branham. My husband was fired as a salary employee after 17 years from a family owned business. He was a production supervisor. Never written up in the 17 years, so no issues with HR. He is in the middle of 2 different medical procedures that was effecting his efficiency at work. but always worked. His brother (owner of company) fired him in the middle of a pay period and chose not to pay him for his last week of work. I am curious as to if we may have a case? Never one write up, in the middle of 2 medical procedures and on top of that he did not get paid for his last week of working. I have never sued anyone and I am not that type of person. This is for principal only. I manage a large publically traded company. I know I would be in big trouble if I fired a person for no reason then didn't pay them for their last week of work.
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Submitted: 1 year ago.
Category: Employment Law
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.
Did your husband have any written contract for employment?
Did he get paid for all of the time he actually worked or is that what his brother is refusing to pay him?
Customer: replied 1 year ago.
No written contract. Just a basic employee, but paid salary. His last pay check paid to him was for 11/2/15-11/15/15. He was terminated on 11/20/15. So yes, basically his brother did not pay him for the week of 11/16-11/22/15. He did take 2 days off on the 11/18 and 11/19 for an epidural shot on his back. When he returned on the 20th his brother fired him. To me he should have gotten a check for one week even though he officially was off 2 days then fired on the Friday after he returned. As I said I am a manager for a 3 billion dollar publicly traded company. Salary is salary, and I can not fire anyone just to fire them, especially if they are in the middle of a medical treatment. To me he is already guilty from not paying the last weeks pay.
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your reply.
So, your husband is entitled to pay for only the days he actually worked prior to being terminated. The Fair Labor Standards Act requires the employer to pay an employee upon termination, even a salary employee, only for the time actually worked up to the date of the termination. If he was not paid for the days he actually worked prior to termination, then he can file a complaint with the Department of Labor Wage and Hour Division or he could sue for up to 3 times the amount of wages due (if he proves bad faith) for improper non-payment of wages upon termination.
As far as terminating them in the middle of medical treatment, that all depends. If he is out under leave protected by FMLA he cannot be fired and he cannot be fired if he has a permanent disability under the Americans with Disabilities Act for any reason directly related to his disability. Other than those two protections he could potentially be fired, even if he is in the midst of medical treatment. IF his company is not covered under FMLA, such as they have less than 50 employees, then they could potentially have fired him for being out of work (unlike the mega corp you work for, which has to give 12 weeks of protection before terminating him). If he was out on legally protected FMLA leave, then this is another issue he can file a claim with the US DOL about and also sue if his rights under FMLA were violated.
Customer: replied 1 year ago.
The company is a 10 person company. Very small. He continued to work thru all medical issues and all days off were approved by his manager (brother). They definitely were not out of work, actually all employees were working 10-15 hours a week overtime. His brother was trying to get his hourly employees to go home so he could make my husband (salary) work the over time so he could keep from paying overtime. I think I have this settled with no real recourse on his brother. Not sure it would be worth a complaint or suing for 2 days X3.
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your reply.
I was thinking that when you said family owned. So FMLA protection and ADA protection (since that requires 15 employees) is out. Thus, they can terminate him, but they still have to pay him for only the days he actually worked.
It may be worth suing in small claims court, but it certainly is worth filing a complaint for improper wage payment with the Department of Labor as they can force his brother to pay without going to court.

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