MANYGetting fired and have questions! Please help.

[vibbershniven]

What is the name of your state (only U.S. law)? FL

I have been on vacation for the last week and a half and have written on this forum a couple times with regards to my employer. I have reason to believe I will be getting fired apon my arrival tomorrow. My employer has been very difficult to work for in the last few months as business has been rather poor; however have several questions with regards to my job.

First as a salary employee, on the DOL website it states that if any work is performed in a work week the salary cannot be cut. Last week when I was supposed to be on vacation I went into work for over 2 hours and since then have had to answer several texts(over 22) and phone(stopped counting at 8) calls regarding work...so should I be compensated as salary for this or is it that since I am still getting vacation pay that it doesn't matter that I was working while I was supposed to be off?

2nd: Do I have the right to request upon getting fired for the remainder of my vacation pay to be paid in my last paycheck?

3rd: Do I have the right to tell my employer that it was unlawful to retroactively cut my salary last month and ask for the difference in pay to be added to my last check as well? I have a document that she signed that I was taking a paycut to benefit and help the business in these hard times and it had nothing to do with my work perfomance; however she is the one that told me to tell her how much of a cut I could afford. She requested this information on a Wednesday and my check for 2 weeks was paid that next week...so I already worked what I thought was a week and a half at my old pay but my check was based on the new salary dicussed after I had put in all the hours.

4th: This is the big one for me. I have been working for this company for over 5 years now. Salary as store manager with only one pay raise in that time. I have worked on average 10 hours a day 5 days a week without lunch breaks for at least 4 years of this time. I am currently the only employee of this store and have been for the majority of this time. This isn't because I haven't wanted to take lunches rather the fact that if I took lunches my employer has been known to make my life a living hell. She has stated I can take them but up until the last few months was hardly in the office so that I could take a lunch if I wanted to anyways and they were never asked about, never offered just ignored. I was always told I am an exempt employee so even if I don't take lunches it doesn't matter I don't get compensated. Is that true? Oddly enough after receiving the pay cut I started demanding that I get a lunch break. After 3 days of this my employer approached me stating I was being juvenille but couldn't tell me why, of which the only change that occured was my taking lunches. And coinciding with making my life hell I have now been written up 2 times in the last month for what she calls lack of performance(of which I have blind copied myself on email apon email of things that I get done in a given day and trust me there is no lack of perfomance and I can prove that!) I find that insulting as I have been there for over 5 years and now that I am taking lunches I am being treated like the worst employee ever.

FL is a right to work state, I get that but I have a family to support can I be denied unemployment?

I actually have many more questions but I feel I have already overstepped my bounds of free advice. Are these questions something that can be answered here or should I be consulting and meeting with a lawyer locally to get all the answers?

 

[Hot Topic]

I'm not in Florida, but I wouldn't think that you'd be entitled to extra pay because you decided on your own to go in to work when you were supposed to be on vacation (paid, I assume).

As far as being fired goes, don't scream before you're hit.

As far as lunches go, it depends on state law. If you're entitled to a lunch break and denied one, it's a violation in many states. Where I am, you have to be given a lunch break, and a company is breaking the law by forcing you to work even if they supply you with a sandwich.

 

[pattytx]

If you are exempt (which as a store manager, you could be), you are not legally entitled to any "extra pay". Ever. If the company decides to adjust your vacation taken for those hours, that's fine, but the FLSA does not address that issue. Your salary was not "docked", if I'm reading your post correctly. You got vacation pay, which is not required anyway.

You can ask for the vacation pay at termination, but there is no law in Florida requiring you be paid it. What has the company done in the past?

I just got to the "only employee at the store" part of your post. In order to qualify for the executive exemption, you must directly supervise at least two FTE employees. It's possible you may qualify under the Administrative exemption, but only the federal DOL could tell you for sure.

"Right to work" has nothing to do with this situation. RTW has to do with not having to join a union to get a particular job.

 

[vibbershniven]

For the first response, I didn't decide to go in, I was asked to come in since the owner felt overwelmed and didn't think she had a grasp of what needed to be done...and ended only being there that amount of time so I could help her fix an $1100 job that she messed up. And I understand not screaming before hit; I am just trying to be prepared as every time I have left for even a day at this job in the last 5 years I have come back with the owner having a severe attitude, almost like how dare you make me have to lift a finger around here. As I said in my original post, texts such as do not go into the store as I have changed the alarm codes, imply that termination will be happening.

For the second response...I have been confused on the exempt issue as my job description is store manager that comes along with a 2.5 page list of responsibilities including marketing, some accounting, running errands(without gas mileage paid ever)opening/closing the store...but since I am the only employee and the boss is no help I am also the only person for customer service, filing, graphic design, production, janitorial work, inventory, ar's, installations, so I don't know how I can be classified exempt or not based, on that I do everything but sign checks for the company. For past employees, they have never lasted long enough to acquire vacation(longest employee was 6 months, shortest being 3 days.) She has gone through at least 10 employees since I have been there and all but 3 left because they couldn't stand the boss(owner)

Now I am confused as my boss has always said that FL is a right to work state meaning she can fire anyone for any reason and deny them unemployment. If she really thinks she can run the place without me, more power to her, don't know how but that isn't my business, I just want to be sure that since I am the bread winner of my family I can take care of my priorities while I am looking for further employment.

 

[pattytx]

It sounds like you should have been classified as nonexempt all along, since the majority of your time appears to be spent doing nonexempt tasks. However, if reference to the time you were on vacation, yet came in and worked a few hours, answered messages, etc., the law requires only that you be paid minimum wage for all time worked (as a nonexempt employee). If you got paid vacation for that time, the law would be satisifed, and even though I agree with your that your vacation should not be charged for this work time, since neither Florida nor federal law cares about vacation administration, it would not be a violation of any law to do what they did.

Your boss is calling it the wrong thing. What s/he is talking about is "at will employment"; you can google it.

 

[vibbershniven]

If most of my tasks are considered nonexempt of which would make me non exempt does that mean I should have been getting paid overtime for the extra 2 hours of work I put in every day for at least 4 years?

Also would you be able to answer the question regarding the retroactive pay cut? Can she do that? Or can I request the difference in my last check? Thank you for your time by the way...greatly appreciated!

 

[ecmst12]

Incidentally, while at-will employment allows her to fire you for any reason not specifically prohibited by law, or no reason at all, it does NOT allow her to deny you unemployment. If you are fired for any reason other then willful misconduct, you are eligible for unemployment benefits. She may try to contest them, but in the end she will lose.

 

[pattytx]

If most of my tasks are considered nonexempt of which would make me non exempt does that mean I should have been getting paid overtime for the extra 2 hours of work I put in every day for at least 4 years?

Also would you be able to answer the question regarding the retroactive pay cut? Can she do that? Or can I request the difference in my last check? Thank you for your time by the way...greatly appreciated!

1. Yes, IF you file a civil suit. The federal DOL will take wage claims for only the last 2 years, 3 years if the violation is deemed willful.

2. Florida law doesn't specifically prohibit retroactive pay decreases, but I would include that in your claim/lawsuit.

If you're getting fired anyway, you might as well wait until that happens, and then make the claim/file the lawsuit.

 

[commentator]

If the axe falls, IF you are fired....you must write this in blood somewhere and remember it. You will file for unemployment benefits, on the telephone system (stay away from the internet, because this is a "dirty" claim, you need to talk to a living human being) and the reason you will give for your firing is whatever she tells you on the last day. Hopefully this will be "poor performance." Take out whatever notation she gives you to document this poor performance.

Be sure you tell the unemployment people you tried your best, and that you made very effort to resolve this situation and to keep your job. Tell them you worked even during your vacation, and extra hours without a lunch or rest.

BUT, do not start griping to the unemployment office that you were not paid, that you did not get your vacation pay, you were not given appropriate lunch breaks, etc etc. They are not the people who are going to be interested in this. Enforcing Wage and Hour issues is not what you get from unemployment. First you file your unemployment claim, you begin certifying for weeks while you are waiting for their decision. You do not report that you are getting vacation pay if you have not been paid it.

You then call the Department of Labor Wage and Hour division and begin complaining about the lack of appropriate pay and lunch times if you feel you have a case there. Do not get these two divisions entangled, however.

Above all, you do not want it to sound to the unemployment office as though you quit your job because you were not being paid appropriately. She fired you, and therefore, you will be able to get your unemployment insurance approved, because she did not have a good job related misconduct reason to fire you. If you quit, you would have a hard time getting approved, even with the best of reasons.

As someone else has said, regardless of what reason she tells the office that she fired you, your word is as good as hers, and they will make a decision on whether you are entitled to benefits. Good luck.

 

[GonzoFL]

File an unemployment claim in Florida: Just in case the ax does fall vibbershniven

1. How do I file a Florida claim for unemployment compensation benefits?
A claim for unemployment compensation benefits can be filed using the Internet at Agency for Workforce Innovation - Unemplyment Compensation. The Internet is available 7 days a week, 24 hours a day. A claim may also be filed by telephone by calling toll free 1-800-204-2418. Choose the language and then option 2. The telephone center is open to process claims Monday through Friday, 8:00am to 5:00pm. Florida law requires that the effective date of your claim will be the Sunday prior to the day you file the claim. You may also file by mail. Claim booklets are available at the One Stop Career Centers throughout Florida. The booklet contains the form required to file your claim. You must complete the form and mail it to the address as listed in the booklet or fax it to the number listed in the booklet. The effective date of your claim will be the Sunday prior to the postmark date or the Sunday prior to the date the form is faxed to our agency. A list of the One Stop Career Centers may be found on the Internet website at Agency for Workforce Innovation - Florida One-Stop Career Centers. Computers are also available at the One Stop Career Centers so that you can file your claim using the Internet.

Note to OP. This number is very,very,very busy 99% of the time. It may take hours or possible days until you can past the automated recording telling you the system is to busy and to call back later. You must be persistent and patient in order to file on the phone. Good luck and I hope you do not have to file at all.

 

[pattytx]

Neither federal nor Florida law requires rest periods or meal breaks. Now if you were docked for a meal period that you did not get to TAKE (at least 30 uninterrupted minutes), then you have a wage and hour violation (as a nonexempt employee).