Seven Short Q & A’s on Saturday

Question 1 – Is there a best way to resign while out on medical leave? Hi, Alan. Please tell me the best way to resign while out on medical (not pregnancy) leave? I have been on medical leave for six months now and do not plan to return for several reasons: (1) I didn’t like my job much; (2) I have a strong desire to make a career change; and (3) I strongly believe that my managers will not treat me the same when I return, based on comments from other employees who returned from medical leave. Thank you so much!

Randi
Los Angeles, California

The Short Answer is “Carefully.” Randi, there are many facts about a person’s employment and personal life that might affect how he or she should resign. They include: (a) Would you like to collect unemployment benefits? (b) Do you have a mentor or “rabbi” at your job who you think might help you in the future? (c) Would you like to get some severance? These factors, and many more, all weigh upon how a person should resign. May I suggest you review my article entitled “Resigning from Your Job: The 21 Necessary Precautions,” which you can do by clicking on the title.

You might also consider obtaining a copy of our “Master 100-Point Pre-Resignation Checklist by [ clicking here ].

Sorry I can’t give you a simpler answer, but that would not be right of me to do without being familiar with you, your life, your needs and your hopes and dreams. But you can do a lot to help yourself . . . that is what our blog is all about.

Good luck in your transition,
Al Sklover

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Question 2 – What do you think of my supervisor “writing me up” for seeking help from HR? My supervisor included in my performance review comments that I went to HR concerning two matters that directly related to him, essentially “writing me up” for seeking help from HR. I plan to seek further guidance from HR to see if these comments can be edited out of the yet-incomplete review process. I’ve been told by my supervisor that it is within my rights to talk with HR any time I need to. Does he have the right to then criticize my performance for doing so?

Kathy
Atlanta, Georgia

The Short Answer is “It is Improper Retaliation.” Kathy, as you know, seeking assistance from HR has nothing to do with your performance of your job duties. Even if you went to HR five times a day, if you managed to get your work done and done well, it would be irrelevant. What good are rights if you are punished for exercising them? It is likely that what your supervisor has done is a violation of your employer’s anti-retaliation policy. If what you went to HR about was your belief that you were being discriminated against, or harassed, it is likely that what your supervisor has done is even a violation of law. My strong suggestion is that you file a complaint – in writing, by email – for improper, and possibly illegal – retaliation.

Hope this is helpful,
Al Sklover

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Question 3 – Is pay that is lower than your predecessor’s an indicator of discrimination? Question: my employer is paying me $15k less annually than the person before me. Which also happens to be $15k less than the industry standard rate for this area. I did not sign the offer letter but have been working for the lower salary for 6 months now. I am equally qualified and do the same job as my predecessor. The only difference between the two of us is that I am African-American. Now I am not the type to jump on the discrimination bandwagon, but I feel as though there is something wrong here and possibly illegal. Any thoughts?

David
Palm Beach Gardens, Florida

The Short Answer is “Perhaps, but . . .” David, any difference in treatment might be an indictor of discrimination. We have to look at any possible indicator in the context of every other indicator. For example, was the pay in your offer letter the pay being advertised or posted so that it was offered to all applicants, regardless of race? From the facts you have presented, it seems that this may be the case here. Do other African Americans receive lower pay than their Caucasian colleagues? Do you observe a reluctance to hire African Americans, to hire African Americans for higher-level jobs, or to be granted promotions? While I don’t know more facts than you have presented, I do know that more and more frequently these days people are getting paid less than their predecessors and some people are even getting paid less than they, themselves, got paid last year. Sorry, but many more facts would need to be reviewed before even a tentative conclusion of discrimination might be reached.

Sorry I can’t be more helpful,
Al Sklover

We offer a Model Letter entitled
“Model Response to Job Offer Letter.”
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Question 4 – What is the filing fee to file a Court Complaint in Colorado Federal Court? I filed a Charge of Discrimination with the U.S. Equal Employment Opportunity Commission (“EEOC”) and they issued a “Right to Sue” letter to me. Can you tell me what is the cost of filing a “Pro Se” federal lawsuit? Does the amount of damages have to be more than $75,000 to proceed? Thanks, in advance.

Joseph
Colorado Springs, Colorado

The Short Answer is “$350.00.” The filing fee for the U.S. District Court for the District of Colorado is $350.00. There is no “minimum amount in controversy” requirement when a person is filing a lawsuit that is – as it is in your case – based on an alleged violation of federal law. Most federal courts have a special office set up to help “pro se” litigants – that means people filing lawsuits without the assistance of an attorney – like you are. In my experience “Pro Se Law Clerks,” that is, Court-paid attorneys whose job it is to help individuals like you are extremely helpful, and most Federal Judges are extremely gracious and understanding to people trying to gain justice on their own. You should be praised and applauded for standing up for yourself this way! There is no sweeter justice than justice fought for.

I pray for your success,
Al Sklover

Our Model Letters and Checklists are a
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Question 5 – Can an employee on a PIP transfer? I was placed on a Performance Improvement Plan, and eventually terminated. During the course of my Performance Improvement Plan, I made a request to be transferred from under the current supervisor and was always told I couldn’t be moved under the PIP. Is that factual?

Anonymous
Washington, D.C.

The Short Answer is “It is almost never allowed.” Most employers maintain company policies that say “While an employee is on a PIP, the employee will not be permitted to transfer.” I have many, many times tried to figure out a reason for this, and can only come up with one conclusion: If the idea of the Performance Improvement Plan was to help you improve your job performance, then surely you might do better under another supervisor. However, if the real reason for the Performance Improvement Plan is to set a stage to terminate you, then no transfer would be permitted. That is a long way of saying that this is one of the reasons I believe the vast majority of PIP’s are false and fraudulent, not intended at all to “improve performance,” but rather intended only to make firing easier.

That is how I see it,
Al Sklover

Leaving to Get Away from a Problem? Don’t Give Up Your Rights!
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Question 6 – Am I entitled to accrued vacation time if I quit? I have the Boss From Hell. I found a new job, and gave two weeks notice, even though I am not required to do so. I am owed a fair amount of accrued vacation leave time. My boss is now acting like a Living Nightmare. If I leave before two weeks is up, will I be paid my accrued back leave?

Becky
Rockville, Maryland

The Short Answer is “Yes.” Becky, as of January, 2008, Maryland law was clarified to provide that unused vacation time is a “wage” and must be paid to a departing employee, regardless of the employer’s policy on the subject. The agency is charge of enforcing this employee right is the Maryland Department of Labor, Licensing and Regulation, often called the DLLR. You can send a letter to your (former) Boss From Hell, and tell him or her this News From Earth. If you have any trouble collecting, contact the Maryland DLLR. Their website is www.dllr.state.md.us .

I’m glad you are “escaping,”
Al Sklover

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Question 7 – Are there any circumstances under which a terminated employee is not obligated to repay a Tax Equalization debt to his or her employer?

Name Withheld
Doylestown, Pennsylvania

The Short Answer is “No, but . . .” Tax Equalization is a process by which the employer ensures that its employees who they relocate temporarily do not have to pay more in taxes to both their home country and their host country due to their temporary relocation. Sometimes it turns out that, after the employment ends, the employer owes the employee money, and sometimes it turns out that the employee owes the employer money. I have never heard of a circumstance where the debt is forgiven or waived by the employer’s Tax Equalization Plan or Agreement. That said, I have negotiated for employees the waiver of any sums due as a kind of severance. Where there exists a possible claim – such as breach of contract, discrimination, or defamation, just to name a few – the settlement of that claim at severance time may be the forgiveness of the tax equalization debt, or any other debt, for that matter, such as education debt, a loan, or overpaid commissions. I might suggest you review our blogsite section on the subject of Severance.

You might give it a try,
Al Sklover

Resigning? We offer a 100-Point Pre-Resignation Checklist.
If you’d like to obtain a copy, just click here.

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Got a question? Feel free to submit it for Alan to answer. But please keep it brief and to the point. Questions of over 100 words will not be reviewed. And only one question at a time. If you do submit a question, you agree that Alan’s answers are not legal advice, but only suggestions to consider. Please understand that not all questions can be answered, due to limitations on time and space. Still, we “do our best to do our best.”

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