Employment Law/My Rights

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Question
Hello Mr. McGill,

I work for a logging company in western Ky. i have been employed by them for almost 4yrs. I was hired as a driver to transport logs from the woods to the local wood yards. my boss cuts the trees and prepares them for the transport.

At this time I am paid a salary base up to 10 loads hauled then extra for each load after that. Recently my boss decided to open his own saw mill this is a third company for which they operate and have separate employees for.

However, due to recent rains and break downs we haven't been able to get into the woods to gather logs so he has decided to have me work at the saw mill on the days i can not haul logs... this wasn't a position i had applied for or asked for it is beyond my physical capabilities.

I am a 48 yr old woman with asthma and can not handle the dust and heat. also my job duty is to pull boards and stack them into bundles they weigh around 40lbs a piece and you can stack up to 200+ boards per day. The employees that are regulars at the mill work on hourly pay.

My pay doesn't change. they work 10 hour shifts. i have tried to comply with his wishes but it has made me physically ill. to the point of vomiting and having to have breathing treatments. I have had to take sick days to recover and he acts as if this isn't his problem if i want a job then this is part of it. Do I have any rights here at all?

Do I have to work in a position that I wasn't hired for? and am not physically able to due to keep my job? do i fall under exempt because of being a driver or non-exempt as being a production worker? I make less than the 23,600. Please if you have any information,or can help provide me with some advice it would be greatly appreciated

Thank you,

Kennae

Answer
Kennae:

If the company that employs you has employed fifteen or more people for at least twenty calendar weeks this year or last year, it is covered by the Americans With Disabilities Act (ADA).  Under the ADA, an employee with a covered disability (which your asthma is) is entitled to a reasonable accommodation of your condition to allow you to continue working, as long as it would not cause an "undue hardship" for the employer. In your case, an accommodation could possibly include a modification to your assignment or a schedule change, or the provision of protective equipment to keep your asthma from being aggravated in your work.  The US Equal Employment Opportunity Commission (EEOC) is responsible for enforcing the ADA, and I would encourage you to contact them to speak with a staff investigator about requesting an accommodation from your company.  You c an find their nearest office on their website and contact them by phone or online.  The link below takes you to the main EEOC site, and on the right side there is a map you can use to find the nearest office to your location.

http://www.eeoc.gov/

This link will take you to more information about the ADA:

http://www.eeoc.gov/laws/types/disability.cfm

You also mentioned exempt vs non-exempt work.   If your employer has eight or fewer employees engaged in timber land operations (essentially, anything involved in surveying and cutting trees and getting them to a mill or transport terminal), then the workers doing those jobs are exempt from the overtime requirements of the Fair Labor Standards Act (FLSA).  That would include your driving job. But it doesn't include the mill work, and both jobs are still covered by the minimum wage provisions of the FLSA.  Given the amount you earn, it's possible that you are being underpaid, since the minimum wage is 7.25 per hour, and you are entitled in the mill job to time and as half for hours worked in excess of forty in a calendar week.  If you believe that is the case then you should contact the nearest office of the Wage and Hour Division of the US Department of Labor, using this link:

http://www.dol.gov/WHD/

There is another map here you can click on to find the nearest DOL office.  

I hope this is helpful.  

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Frank C. Magill

Expertise

I can answer questions about any U.S. labor or employment law question. I cannot answer questions about non-US law. I am not a specialist in employee benefit law (ERISA and HIPAA) or Workers' Compensation law, but will do my best to point questioners toward good resources availabe online. Expertise includes, without limitation, EEO/Affirmative Action/Employment discrimination (Title VII, Age Discrimination in Employment Act, Americans With Disabilities Act, GINA, Fair Credit Reporting Act as applied to employment); Fair Labor Standards Act; Texas labor code; Family Medical Leave Act; employee compensation; discipline and dismissal; force reductions, severance pay programs and administration; collective bargaining, union representation, grievances and arbitration, National Labor Relations Act and National Labor Relations Board; employee handbooks; staffing; dispute resolution outside of traditional labor agreements; employee communications; employment policies and compliance programs; codes of ethics; employment or labor litigation.

Experience

30+ years experience as corporate counsel for a Fortune 100 telecom company, specializing in labor and employment law issues. In addition to providing day-to-day advice to my company's internal HR leadership and staff, I've represented the company in numerous labor arbitration cases and at the bargaining table.

Organizations
Texas, Illinois and Missouri state bars

Education/Credentials
J.D. 1979, Harvard Law School. B.A., Summa Cum Laude, 1976, Illinois Wesleyan University.

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