Employment Law/over reporting tips
QUESTION: My employer over reported my tips. I was fired following a 2 wk medical issue where I was not allowed to return to work until I paid out of pocket again for a visit to the Dr for a note. Now I'm being denied acchs based on the pay stubs information. I don't know what if anything I can do.
ANSWER: Hello Ashlee,
I apologize for the delay in responding.
I need more info to provide a qualified response.
1) Were you full time?
2) What is your ethnicity?
3) Are you over 40?
4) Did you have prior medical issues?
5) Does your employer qualify for FMLA (Family Medical Leave Act)?
6) Does your employer qualify for ADAAA (Americans with Disabilities Act Amendment Act)?
The answers to these questions will provide me with a clearer picture of your circumstance.
---------- FOLLOW-UP ----------
QUESTION: 1) Yes I was full time
3) 29 yrs old
5) I Do not know anything about the two acts you asked. I live in AZ and its a rather small company.
It would be to your advantage to review the FMLA and ADAAA info below.
I know it seems to be a lot. However, education is always the key to
protecting the rights of employees.
Trust me after you have read the info you will have a clearer understanding of your
particular situation and will be able to answer the necessary questions that will
offer guidance for solutions.
How To Use FMLA
Answers To FMLA Questions
Definition of disability under the ADA and ADA Amendments Act
Congress enacted the ADA to protect qualified employees and applicants with disabilities from discrimination by employers. (In general, individuals are “qualified” if they can perform the essential functions of a job, either with or without a reasonable accommodation.) The ADA requires a covered employer to make reasonable accommodations to allow a disabled individual to perform the essential functions of his job.
To be protected, a worker must establish that he is disabled within the meaning of the statute, and not every illness or ailment qualifies as a “disability” under the ADA. Individuals are considered to be disabled under the ADA if:
they are actually disabled (i.e., they have a physical or mental impairment that substantially limits one or more major life activities);
they have a record of a disability (i.e., they had an actual disability in the past but are no longer disabled); or
their employer regards them as being disabled.
The ADAAA provides that the term “substantially limits” must be interpreted consistently with the “findings and purposes” of the ADAAA, and the ADAAA final regulations provide some helpful rules of construction regarding the term. The findings and purposes are provided as a list of general and specific requirements at the beginning of the ADAAA, which champion a less demanding standard than under the ADA. The ADAAA also clarifies that it is to be construed “in favor of broad coverage of individuals under this Act, to the maximum extent permitted by the terms of this Act.”
The ADAAA provides an extensive list of tasks that constitute “major life activities,” including physical tasks such as walking, standing, and lifting; mental tasks such as learning, reading, and thinking; and even the operation of major bodily functions, such as immune system function, cell growth, and reproductive function. The final regulations also make clear that whether something is a major life activity is to be interpreted very expansively, and the fact that a particular activity is left out of the statute or regulations doesn’t preclude it from being a major life activity.
Accommodations for employees and applicants with disabilities
Employers are required to make reasonable accommodations for all qualified individuals with a disability unless doing so would cause you an undue hardship. Because the standard is high, most employers will have trouble proving that an accommodation causes such a hardship.
You should note that granting extended leave to an employee is considered a form of reasonable accommodation. Thus, even if the employee has used up his sick leave, Family and Medical Leave Act (FMLA) leave, and vacation leave, you still may need to grant additional leave for employees with disabilities.
Claims by employees and job applicants of being regarded as disabled
The ADAAA defines the requirements of being “regarded as having an impairment,” specifying that workers or job applicants who are subjected to discrimination prohibited by the ADA, whether or not an actual or perceived impairment does limit the person’s major life activities, would still be regarded as having an impairment.