My employer wants to get rid of me

[Staten.Islander]

I'm not sure about any legal recourse I might have because I've received conflicting information about this, but my employer has apparently been trying to get me to quit.

I'm an armed security officer here in New York and I've worked for my present employer since 2001.

I hurt my back while at work July 14th 2009, and this subsequently led to a blood clot and hospital stay. When I attempted to return to work 1-1/2 months later it became obvious that through certain actions and treatment from the front office that the company I work for didn't want to take me back. I took a friend's advice and decided to push for Worker's Compensation, which apparently made my employer unhappy. I also had no choice but to file for unemployment.

During this time my employer also refused to give my salary info to the hospital medicaid officer when I was attempting to get financial aid.

Finally on October 26th I was given a different position/location at a lower salary.(I'd been told that my previous position was no longer available and that it was company policy to transfer an employee who filed for worker's compensation).

My employer challenged my worker's compensation claim, but I won it at the beginning of 2010. But during that year my employer lowered my work hours multiple times and despite my complaints let my gun license lapse at which time my employer only let me work 15 hours a week as an unarmed security guard. Thanks to the company custodian I received my license back within a month as opposed to the normal 6 to 8 months it usually takes. But I had to file for partial unemployment at this time also.

Outside of less than subtle hints that my employer wanted me to quit, my employer has refused to give me my earned vacation pay, which I put in for in 2010.(Though all the officers I worked with did receive their pay). And at the beginning of March I am supposed to be eligible for my next vacation(or pay). But even before I had been hurt there were quite a few times I was refused the pay owed me. (From shorted works hours to birthday pay when it was policy for everyone else).

In December, a week before Christmas, my employer transferred me out of the location I was at and has refused to give me an assignment since.

I again have filed for unemployment, but since unemployment is based on your previous salary the amount is now far below the amount I need to pay my bills and I don't even know how I'll pay my rent for March. (My employer will no longer return my calls).

Just before I was hurt in 2009, I was working toward saving up toward getting something done about my hearing problem before it got to the point where it would affect my job, but my subsequent financial hardship brought on by my continuing low and intermittent employment has now put me in a very bad situation.

I touched on just the basics of my experiences with my present employer who I've been with for 10 years, but it seems obvious I've been black-listed and since the lowered salary didn't get me to quit they have now just completely stopped giving me work.

I was initially told that employers can drop your pay whenever they feel like it and was even told by the Worker's Compensation paralegals that there was nothing I could do, but now I'm hearing something different.

Over the last year and a half my hearing has gotten even worse, and I probably couldn't even get through a job interview, so I'm hoping someone has answers for me in regard to anything I can do.

Any help would be appreciated.

 

[cyjeff]

Did you qualify for FMLA?

 

[Staten.Islander]

Did you qualify for FMLA?

?!?

I have no idea what that is.

 

[cbg]

FMLA applies when all of the following are true:

1.) You have worked for the employer for a minimum of 12 months (need not be consecutive)
2.) You have worked a minimum of 1,250 hours in the consecutive 12 months immediately preceding your leave
3.) Your employer has a minimum of 50 employees within 75 miles of your location
4.) You or a qualified dependent have a a serious health condition as defined by the FMLA statute

FMLA provides you with up to 12 weeks of unpaid medical leave with your job protected.

You can find out more by typing FMLA (or Family Medical Leave Act) into your favorite search engine.

 

[Staten.Islander]

My situation does not fall in any category defined by the FMLA. The City of New York is not my employer. And I am not out of work because of a "serious illness" or a need to take care of someone.

Thanks.

 

[Mass_Shyster]

Get yourself a Worker's Comp attorney.

New York Workers' Compensation - Article 7 - § 120 Discrimination Against Employees Who Bring Proceedings

§ 120. Discrimination against employees who bring proceedings. It shall be unlawful for any employer or his or her duly authorized agent to discharge or in any other manner discriminate against an employee as to his or her employment because such employee has claimed or attempted to claim compensation from such employer, or because he or she has testified or is about to testify in a proceeding under this chapter and no other valid reason is shown to exist for such action by the employer. Any complaint alleging such an unlawful discriminatory practice must be filed within two years of the commission of such practice. Upon finding that an employer has violated this section, the board shall make an order that any employee so discriminated against shall be restored to employment or otherwise restored to the position or privileges he or she would have had but for the discrimination and shall be compensated by his or her employer for any loss of compensation arising out of such discrimination together with such fees or allowances for services rendered by an attorney or licensed representative as fixed by the board. Any employer who violates this section shall be liable to a penalty of not less than one hundred dollars or more than five hundred dollars, as may be determined by the board. All such penalties shall be paid into the state treasury. All penalties, compensation and fees or allowances shall be paid solely by the employer. The employer alone and not his or her carrier shall be liable for such penalties and payments. Any provision in an insurance policy undertaking to relieve the employer from liability for such penalties and payments shall be void. An employer found to be in violation of this section and the aggrieved employee must report to the board as to the manner of the employer's compliance within thirty days of receipt of a final determination. In case of failure to report on compliance, or failure to comply with an order or penalty of the board within thirty days after the order or notice of penalty is served, except where timely application to the board for a modification, rescission or review of such order or penalty has been filed under section twenty-three of this chapter, the chair in any such case or, on the chair's consent, any party may enforce the order or penalty in a like manner as an award of compensation.

 

[cbg]

I was wondering whether some of the earlier absences might have been FMLA covered. But if not, then a workers comp attorney is probably your best bet.

 

[Staten.Islander]

That's odd.

The paralegals that handled my case said that there was nothing I could do when I told them that my pay & hours had been dropped.

Also, If am being discriminated against for bringing proceedings, how would something like that be proven? (It's not like my employer would give that as a reason for everything they've done over the last 1-1/2 years).

Thanks.

 

[pattytx]

Paralegals are not attorneys.

 

[cbg]

Well, no. FMLA does not apply to all employees. It does not apply if the employer has fewer than 50 employees within 75 miles of the employee's location; it does not apply to employees who have been with the employer for less than 12 months; it does not apply to employees who worked less than 1,250 hours within the 12 months immediately preceding their leave; it does not apply to employees whose medical condition (or whose qualified dependent's medical condition) does not meet the definition of a serious health condition. It does not apply to employees who are looking for leave to care for a non-qualified dependent.

It does apply to government employees.

 

[Staten.Islander]

Normally, I would say that an workmans comp injury 18 months ago could not be shown to have a relationship to your lack of work now ... but there appears to be a slow but consistent linkage of actions back to it.

But, is the lack of work due to your lack of hearing? This is not related to you back injury, is it?

No it isn't. In fact, the office is not aware of how bad my hearing has become. (But I'm sure that they would use it against me if they found out). I had been trying to make enough money to get something done about it before it starts to affect my work since there are no real benefits(medical, pension, etc.). But I had amassed only just under $1000 over the last year at the lower paying site. And since they wouldn't give me my earned vacation pay(even though the other workers got theirs) I was planning on using X-mas tips the shop owners give out at that site to get me over the top. But I was transferred off the site a week *before* X-mas. (The previous year those tips allowed me to eat and get my phone turned back on before I won my Worker's Compensation case, which gave me just enough to pay 4 months back rent to my landlord).

And as far as the Worker's Compensation case. When I came out of the hospital in late 2009 and attempted to get back to work, I was told by the captain at the "pre-injury" (and higher paying)work-site I had been at for 5 years that the branch manager said I couldn't return there because I had filed for Worker's Compensation. I was subsequently placed at the work-site I was just transferred from where the pay and hours were lower.

And you are paid on assignment, not a regular employee which makes the situation that much harder to prove.

No, I'm a regular employee. Security guards are assigned to the sites they work at and I was at the lower paying site for 14 months. My hours and armed status continued to drop further during that period, culminating into me getting a transfer off the site two months ago and without a placement to another. (Remember, I had been hired as a full time armed security officer 10 years ago).

In fact, just like during my fight to get back to work the previous year after my injury, I was repeatedly told to call the office back until the last time, a month ago, I was told that I would be called back, which I wasn't. At the one meeting I was given at the office in December I was asked if I had a resume ready. (Which indicated to me that they wanted me to look for another job). I've not heard from anyone since, and my two messages last week were not returned.

The ironic thing is that before I was hurt I had planned on moving away from this company after wasting 10 years for nothing, but their actions have resulted in me not having any options.

It would be a tough sell unless other information comes to light. You can go see an attny. The attny will want to know this: were you treated differently than other employees? And was this due to you filing a workmans comp claim?

If other guards were not getting work too, then your claim is very much weakened.

The other permanent guards I worked with while on that site for 14 months were also full time and had schedules that gave them all between 40 and 55 hours every week.(My schedule gave me 37-1/2 max.).

And that was my "permanent" site as told to me by the branch manager and asst. branch manager When I was first transferred there almost a year and a half ago. (I still have the original written and signed schedule). Of course when a different branch manager took away the couple of "armed" days I had left in favor or arming another security guard, and had me working as a regular security guard his reasoning was that the site was not my permanent site, which of course was false.

So basically, I had been reduced to a lower paid unarmed security officer when they decided to give a fellow security officer his gun license. He had already been making more I because he was on a schedule that gave him 12-13 hours more a week. (And I was with the company 5 years longer then him).

In fact, even when one of the armed officers called out, the office demonstrated resistance in having me fill in as an armed security officer in favor of getting an outside armed officer to work in place of the officer that was out.

As a matter of course the office tends to blame these kinds of unpopular decisions on a specific site client so they will not have to answer for them. But that still doesn't explain why I have not been given a site in over two months.

But you may have to go through administrative channels before a district court hearing could proceed; see an attny to be sure.

Ok, I'm not sure what that means, but I'm in financial trouble again and I have to figure how what to do next.

Yes, the company will not say "we did this & that because he filed a WC claim" (but I have heard of employers actually admit this..not too many are that stupid though) -- so this determination is made by looking at the adverse actions taken against the worker compared to alot of things including other workers.

I'm wondering what percentage of employees would have to have the same difficulties in order for one claim not to be valid. (This isn't a small company).

FMLA applies to all workers, not just gov't employees ... (if gov't employees are even covered, I have never looked into that)

I was just going by what I looked up on the internet.

Thanks.