George and His Return to Work – Redux

Remember George? He works for HugeCo. He had to take a leave from work due to a slip and fall at home. His doctor said he could return to work. HugeCo said “not so fast”, and demanded that he undergo and Independent Medical Exam (IME) with a report that he could do 100% of his job duties before he came back.

George’s lawyer advised him, and HugeCo, that requiring an IME, when George’s doctor had already certified his return to work, violated the Family and Medical Leave Act.

HugeCo’s in house mouthpiece said “Aha, but the ADA says we can require an IME before George returns to work.” And the company is right (well, maybe). The ADA does allow for an IME when there is a legitimate reason to believe that an employee cannot do the duties of the job. The examination must be focused on the specific condition at issue. And, finally, the decision to do the examination must be consistent with a business necessity.

Whether HugeCo had a legitimate reason to believe that George couldn’t do his job will be based on the medical facts and the specifics of his job.

HugeCo had to tell the doctor doing the IME that he was to limit the examination to the condition at issue – here George’s back. The Doctor is not allowed to check George’s psych records or inquire into his eyesight, or other conditions that are unrelated to his back

Finally, HugeCo’s decision to have the IME conducted needs to be consistent with business necessity. A consistent policy related to the job must exist. Here is where George’s lawyer jumps back up. HugeCo has no written policy about return to work IMEs (or any other reason for an IME). George knew, in fact, that other warehouse workers had injured their backs (some far worse than George) and none had been required to undergo an IME to come back from an injury leave. HugeCo has trouble on its hands.

Chuck from Watson Law, LLC

George and his Return to Work.

Let me introduce George, an employee for many years at HugeCo. George’s doctor gave him a off-work slip due to the acute back spasm caused by a slip and fall at home. George clearly could not work at the time (after all he was on major drugs and could not move almost at all – not a good thing for a warehouse worker), but did not have a long-term, chronic back problem. George asked for and received FMLA leave. While on leave George called in and complied with HugeCo’s leave policies.

After a week, the spasm was gone, and the doctor gave George a Return to Work slip, and a medically supported statement that George could do his job. But HugeCo would not let him come back to work. Why? HugeCo said he needed to undergo an independent medical exam (IME) to show he was able to do 100% of his job duties. (George’s supervisor, Bruno, had other, more nefarious reasons; but more about Bruno later.)

Does George have to take part in the IME? Probably not!

When HugeCo demanded the IME it violated the Department of Labor rules governing FMLA leave. The FMLA regulations state that an employer may require that the employee give certification of the ability to return to his or her job, but the employer may NOT keep an employee off work to have its own doctor provide the certification.

The careful employer will let George come back to work with even an unsupported return to work slip. An aggressive employer will require a fully compliant certification. But an employer that wants its own doctor to certify, has stepped over the line (unless authorized by state law or the ADA, more on this later).

HugeCo has left itself open to a complaint that it is interfering with George’s FMLA rights. George may have a claim.

Chuck from Watson Law, LLC

Ya gotta be hurt

Five people in one day – a new record – call asking me to sue their employer. NOT ONE HAD LOST A DIME!
One – just one – had any legal theory at all, and that person just wasn’t hurt. In any way. Unless you count dashed hopes of making it rich.

Chuck from Watson Law, LLC

IWPCA Amendments, Part 3

Employers face increased penalties for not paying proper wages. An employe who recovers unpaid wages in either the Illinois Department of Labor, or in the Circuit Courts, can recover the underpayments, any consequential damages, and a 2% (of the underpayments) per month penalty for each month since the underpayment. If the action is brought in the courts the employee can recover costs and reasonable attorneys fees.

Not helpful to already underpaid employees, but providing a real incentive to employers to comply with the law is the increased criminal liability that may attach to underpayment of wages. In addition to other remedies a willful violation could result in criminal conviction of a Class B misdemeanor for underpayments of $5,00 or less or a Class A misdemeanor for underpayments of more than $5,000. And repeated violations can result in a felony conviction.

The employee’s chances of success have been increased by yet another change to the IWPCA. Employees who complain to their employers, the IDOL, at public hearings, or even to community organizations, about wage issues, as well as employees who bring actions or testify in investigations or trials, may recover all appropriate legal or equitable remedies. If the action to recover for retaliation is brought in the courts, the employee may recover attorney’s fees as well.

And as a final incentive, the changes to the IWPCA appear to make it clearer that officers of the company who knowingly allow wage underpayments may be considered employers. In other words they can be held individually liable for the wage underpayments.

Lawyers and other interested parties should, of course, review the statute itself.

The rest of you should keep these issues in mind. The days of employers thinking that a claim for underpayment of wages is but a cost of doing business should be over. The increased criminal penalties, the personalization of liability, and the chances of class actions should help employers understand that the law must be followed.

As always, mult-part posts will be put together into a larger article and posted at the Watson & Linder website. I’ll get to that in the near future. Feel free to visit.

Chuck from Watson Law, LLC

Relying on clients? Its allowed.

Just read an article about a bankruptcy lawyer who at the meeting of creditors had to back pedal so fast he should have fallen on his butt. Turns out that on one of the forms his client had filled out under penalty of perjury , indicated that he had no personal expenses. When the trustee asked about it, he indicated that he lived with his parents. So the trustee opined that all of the client’s income would be available to pay his creditors. Now the client and the lawyer had to back pedal, and fast.

It’s obvious to me that the client was trying to game the system — or was so dense that he couldn’t understand the forms. In any case the lawyer should have seen that something was wrong. As lawyers we cannot simply be form fillers. If a client with a house, car, children, etc fills out a form indicating that she has no expenses, – the lawyer MUST question it. When there is a glaring error like that the lawyer and her staff have to raise questions.

But what about when a client says he spends $500 on food each month when in fact he spends $400? Or claims that there are no judgement against him, when in fact an unreported judgement exists in some other state? Or that she has disclosed all of her assets, when in fact valuable, but hidden, personal property exists? Is the lawyer responsible for these client mistakes (misrepresentations)? Does the lawyer have to spend all of his (usually) small flat fee searching high cost databases, searching the client’s home, or traveling to clerk’s and recorder’s office all over? I think not!

At some point lawyers have to be allowed to rely on the client’s assertions. Any lawyer worth her salt will tell, nay demand, that the client tell the truth. Clients need to be impressed with the fact that the documents they sign are signed under oath. Lawyers have to challenge anything suspicious and take reasonable precautions to determine that the client’s tale is true. But in the final analysis, a lawyer just has to trust his client.

Chuck from Watson Law, LLC

You don’t need a lawyer

Wrong!!!

I recently ran some numbers (much to the annoyance of She Who Runs The Numbers), about how much of my family law revenue comes from post-judgement matters. By this I am talking about change of custody, visitation, child-support, etc. The number are running close to 40%

Many of these post-judgment matters could have been avoided if competent counsel had spent the time in the original divorce to get things right. When there is no lawyer in the underlying case the overworked domestic judges will often let agreements that as loose as goose S__t get by. Six months, a year, two years later . . . Here I come to pick up the pieces.

If you have children, retirement accounts, a business or retirement accounts, you need a lawyer!

I don’t care if you have an agreement or not. At minimum, you need to have a lawyer look the agreement over to see if there are immediate problems, or matters that will probably arise under the current agreement. Lawyers who do a lot of family law have seen a lot of cases over the years. You have, if you are unlucky in love, seen a couple. Give the person who has seen hundreds a chance.

It’s not insurance, but its close. While no lawyer can anticipate all future problems, but will almost always think of more than you!

Chuck from Watson Law, LLC

IWPCA Amendments, Part 2

As I noted in my last post, there were changes made to the Illinois Wage Payment and Collection Act in the summer of 2010. One of the big changes concerns enforcement of wage claims. Prior to the amendments an employee making a claim at the Illinois Department of Labor, could walk away with an investigatory finding and administrative directive to the employer to pay wages due. BUT, if the employer did not pay, the employee had to go to the courts to file a wage claim lawsuit, presenting all of his or her evidence again. In other words, the trip to the IDOL was just a practice run giving the Employer a look-see at the employee’s evidence. It was usually better to go straight to

Starting January 1, 2011, an employee with a claim of $3,000 or less may take an action to the IDOL, and get a final administrative decision. A final administrative decision is just that – Final. It may be appealed through the Administrative Review Law, but no new evidence is normally allowed. So the hearing at the IDOL really means something.

Of possibly more importance, however, is the ability of an employee to bring the claim as a class action. This had not been allowed under the IWPCA prior to the amendments. If an employer has engaged in an improper practice toward the whole of the businesses workforce, as class action could be devastating. It is much more likely that employers will do whatever is necessary to avoid class actions – even strictly follow the law.

These amendments are important. Both employees and employers need to learn about them. More in later posts. As with all multi-part posts, they will be collected together into a longer single article at the Watson & Linder website when completed.

Chuck from Watson Law, LLC

But I can’t work overtime!

“But I can’t work overtime!” I often get people in my office who can’t work overtime hours, and sometimes full-time hours. They may have any number of disabilities. Stress related disorders may require that they leave the workplace after 8 or fewer hours, even when the employer wants overtime.

Despite the language of the ADA and its regulations encouraging modified or reduced schedules, the courts have been less than supportive of this accommodation. All to often the courts have said that being at work when the employer wants the employee there is essential.

So, depending on the circumstances, the ADA may be out of the question. But that does not necessarily end the possibilities for the employee. If the employer is large enough and the employee qualifies, there may be a FMLA remedy. If the employee has a serious health condition (disability) the doctor may prescribe and certify, for example, that the employee needs to work no more than 8 hours in a day and that the employee needs leave for anything over 8 hours.

This may not work depending on the circumstances – but it should be looked at. I have had very good luck convincing employers that employees need a “modified” schedule. Often a less than sympathetic employer may shrug off a claim under one or the other law. But when you can make a legitimate claim under both statutes, they may feel the need to settle.

Good Luck

Chuck from Watson Law, LLC

Workplace bullying – it stinks & there oughta be a law!

Workplace bullying, its endemic, its destructive, and its rarely actionable. It Stinks!

I do not claim to be one of the many fine attorneys, and others, that have studied this workplace disaster in detail. But I do have people call, all the time, about problems caused by workplace bullying. Unfortunately there is rarely anything I or other attorneys can do about it. The law does not, generally, give employees the right to have a good workplace. Nor does it require coworkers to treat each other with respect, manners, or even common decency. As long as the employer allows it, most coworkers can treat each other as complete jerks.

Bullying, however, is another step beyond. Most workplace bullying that I have had contact with through my clients is more directed. Usually toward somebody perceived by the perpetrator as being vulnerable. The perpetrator will start a campaign of petty actions designed to hurt the victim psychically, rarely physically, until the victim falls apart or leaves. The bully then moves on to another victim. There are several other “forms” of bullying, but this serial form seems to be the most common.

No single act seems too harmful, and often requires a great deal of explanation before an outsider – like me, or a judge or a jury – can understand the act and the resulting harm That is one reason it is so difficult to address legally.

If the perpetrator goes too far, acting in a manner clearly beyond reason there may be a claim for intentional infliction of emotional distress. But too often the acts are too petty to be, effectively, prosecuted as intentional infliction of emotional distress. Unless the bully is motivated by the victim’s protected class status (race, age, sex, etc.) there is almost never something that can be done.

Several states have introduced bills to address this problem. Illinois did so in 2009. but it failed to win approval. To my understanding no anti-workplace bullying legislation has passed anywhere. Its disappointing and wrong. There oughta be a law!

Chuck from Watson Law, LLC

Changes to the Wage Payment and Collection Act, Part 1

The Illinois Wage Payment and Collection Act has been a help to Illinois employees for many years. But the statute has been a VERY imperfect help. The IWPCA had many loopholes that kept employers insulated from the consequences of their improper actions, and lead many employers to consider actions brought under the IWPCA to be but a cost of doing business rather than a reason to comply with the law. Employees were often unprotected if they tried to enforce their rights, and there were disincentives to moving to enforce their rights.

The recent changes to the Act, signed in the summer of 2010, and effective January 1, 2011, close some enforcement loopholes and ramps up some of the enforcement procedures. The changes, which I will post on in the future, make it much more worthwhile for an employee to complain about wage and hour problems, and to get an attorney to enforce his or her rights. Just importantly, employers will now have a real reason to seek knowledgeable counsel to make sure that they are treating employees correctly under the law. The penalties associated with noncompliance are too great to ignore.

Keep an eye out for future posts. As with all multi-part posts, they will be collected together into a longer single article at the Watson & Linder website when completed.

Chuck from Watson Law, LLC