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"Transcript - Undercover Lawyer" 

Brian Therrien:  Good day everybody.  It’s Brian Therrien with Curt K.  How are you Curt?

Curt K:  I’m doing well.  Thanks for having me, Brian.

Brian Therrien:  You’re welcome.  You know the audience is usually accustomed to me introducing guests that we have that come out and speak and their full name and, you know, we’re going to refer to you as Curt today because you are the – well you’re the undercover lawyer, right?

Curt K:  That is I.

Brian Therrien:  That is I and so we want to keep your anonymity.  You know that what you’re doing is really cool, actually.  You know, for the audience out there, you have represented big business in employment lawsuits in state and federal courts and you’ve seen the ins and outs, the good, the bad, and a lot of ugly that’s gone on out there and on the, you know, on the big business employment side and you have decided to jump the fence, basically, and change sides and help individuals that have been wrongfully terminated, which is a very sensitive subject for – for our audience here at the Disability Digest.  A lot of people end up losing their employment, you know, for one reason or another and it’s correlation, commonly, to their disability.  So – so this is – this is really cool stuff that you’re doing.  So, thanks for taking the time.

Curt K:  You’re very welcome.  I’m excited to be here.

Brian Therrien:  Yeah, well this is good stuff.  So, Curt, you’ve put together a website, undercoverlawyer, and you’ve got just an abundance of free information, lessons that people can sign up and get, free podcasts and it really is – your generosity is overwhelming, but the value of the information in going through it that I see is clearly people can take some steps to save their job, one, right?

Curt K:  That’s true.

Brian Therrien:  And also I see that people that feel that maybe they have been wrongfully terminated could see from the information that you have put out, what went down and what went wrong?

Curt K:  Yes.

Brian Therrien:  Okay.  So, let’s dig into it.

Curt K:  Okay.

Brian Therrien:  And some things – I just want to kind of set the playing field here, Curt, and what people should expect when they’re working or on the job that they had, you know, you have this phrase that you use, let me see what it’s called here in one of the lessons you put out, there’s – basically there’s zero assurance that you can keep your job, right?

Curt K:  Yeah.  At-will employment.

Brian Therrien:  At-will employment.  That’s the word I was looking for.  Thank you.

Curt K:  Right, right.

Brian Therrien:  So, that means if somebody’s employed by an employer, it’s at will.  I mean there’s no – there’s – there’s – explain it to us.

Curt K:  Well, unless someone has a specific contract for a certain amount of time, like a pro sports player signs a four-year deal, you know, they know that they’re going to be employed for four years.  However, the rest of us are not guaranteed any length of time that we’re going to be with an employer and it’s at – it’s at-will.  Some union contracts say that someone can only be terminated for cause or for just cause, but even then, you know, an employer can cook up any old excuse.

Brian Therrien:  Okay.

Curt K:  The – the starting place, however, for all employment relationships, the default position under the law, is at-will employment and what that means is that either side, the employer or the employee, can end the relationship at any time for any reason, even a bad reason, just so long as it’s not an illegal reason.  So, the only exception to at-will employment is illegal reasons.  Now, what it means that you can be terminated for a bad reason that’s – that’s not illegal is, let’s say, you show up to work one minute late, one time.  Well, your employer can legally terminate you.  Let’s say you wear the color red to work too much, your employer can terminate you.  Let’s say your employer just says, you know what, I’m sick of looking at your face and your employer can terminate you.  He doesn’t have to legally provide any reason.  He just walk in and say, you know what, you’re gone.  And it doesn’t have to be fair, doesn’t have to be because you have been a poor worker or missing work or anything that makes sense.  There’s no rule that it has to make sense.

Brian Therrien: This is – this is probably not something, that somebody believes that they’ve got true job security, is really going to want to hear, but it’s the facts.

Curt K:  Yeah, that is – that is the law and a lot of folks don’t realize that the default position for all employment relationships in the US is at-will employment.

Brian Therrien:  Um-hmm.

Curt K:  What I mean by default is that you and your employer have to sit down and write out a document that says we have something other than at-will employment.

Brian Therrien:  Um-hmm, um-hmm.

Curt K:  And if you haven’t done that with your employer, you have at-will employment.

Brian Therrien:  Is there any like 30-day notice, 60-day notice, you know, common clause in these – in this?

Curt K:  No.  No, there’s not.  No notice necessary.  Any time for any reason.  Any time means any time.

Brian Therrien:  Okay.

Curt K:  And, you know, a lot of employers expect an employee to give two weeks notice, let’s say, but that’s courtesy.  That’s not law.

Brian Therrien:  So, it would be safe to say that an employer can terminate anybody for – for any reason?

Curt K:  Any reason just so long as it’s not an illegal reason.

Brian Therrien:  Okay, which we can get into some of the illegal reasons perhaps, right?

Curt K:  Sure.

Brian Therrien:  But before we – okay.  Well, let’s do that relative to people that are disabled, because, you know, the audience here.  What might be a couple of examples, Curt, that you could share with us?

Curt K:  Well, the audience here is going to have an easier time fitting into one of the exceptions to at-will employment, because one of the exceptions is they can’t be terminated because of a disability.  So, an employer might say, hey I’m not terminating you because of your disability, I’m terminating you because you’ve missed too much work or because your work performance has been low.  But, there are ways that we can connect those two things to a disability and, thus, make it not just a clean, at-will termination and teach the – your listener how to fight back and keep their job.

Brian Therrien:  Yeah.  You know, it sounds like the, which doesn’t surprise me, that the rules of the game are totally tilted towards the business owner.

Curt K:  Absolutely.  They – they are and the whole idea behind it is, originally, that business owners had to have the flexibility to contract and expand their workforce at will.  You know, this at-will employment, I – I nickname it at-whim employment.

Brian Therrien:  At whim?

Curt K:  Yeah, because an employer can let you go on a whim and that’s – that’s how secure it is.

Brian Therrien:  Um-hmm, um-hmm.

Curt K:  You’re no more secure then the whims of your employer.  But, yes, you’re right, it’s all set up to allow employers to use their sole judgement, not second guessed by any ideas of fairness –

Brian Therrien:  Um-hmm.

Curt K: -- to expand or contract their workforce on a whim.

Brian Therrien:  You know, you went through a sleep apnea example and I think it was one of your podcasts that I listened to?  That was relative to this; is that correct?

Curt K:  Yeah, I can tell you a bit about that.

Brian Therrien:  Yeah, please.

Curt K:  This is a case where I was the defense lawyer and we were defending a grocery store chain and the person in question, we’ll just call him Mike, Mike worked as a warehouseman at this grocery store – supply warehouse.  So, they would load up trucks and those would be sent off to different grocery stores to restock them and his shift was the early morning shift.  They had two, one that started at 5:00 a.m. and went to noon and then one that started at noon and went to 7:00 and, you know, no surprise, the noon to 7:00 shift was the popular one.

Brian Therrien:  Um-hmm.

Curt K:  And that’s where all the senior people worked.  He worked on the 5:00 a.m. to noon shift at the less popular one largely because he, you know, you have to get up at like 4:00-4:30 in the morning to be there working at 5:00 a.m.  So, they put in a policy of they’re going to let people go when they amass a certain amount of points for showing up late or missing a shift entirely or being just a few minutes tardy and it was something like, you know, you’re one minute tardy, you lose a point, up to five minutes.  After that if you show up between five minutes and two hours late, it’s two points, and if you miss your whole shift, it’s four points.  And you get to like 20 points and you’re fired.  Well, he kept showing up late, two hours or more, so he was told he was on the edge of being terminated and he piped up and said, hey, I’ve got sleep apnea and I have a hard time getting up in the morning and I need some kind of accommodation and he didn’t say what, he just said, you know, he had this disability.  He didn’t even use the word disability, just I have sleep apnea and I need some kind of accommodation.  And the employer said well, you know, let us know what’s going on with your doctor and then they kept on working.  So, a few days later he brings in a note saying that, from his doctor, saying he has sleep apnea and asking that his, as an accommodation, his shift start at 6:00 instead of 5:00 and, you know, the supervisors laughed at him and they’re like, you know, there’s no way we’re going to start you – shift starts at 5:00, you know, you don’t get to start a 6:00.  It’s not like we’re going to create the dream shift for you just because you call yourself disabled.  And there was actually evidence, in this case, that he would watch TV and drink a, like 64 ounce soda every night and fall asleep by his TV and it was in his chart notes from his doctor and, you know, not be where his alarm was in his bedroom and he’s drinking all this caffeine when he goes to bed.  So, in a sense, it was no wonder the – the guy was – he had some bad habits, in other words.  But, nonetheless, he amassed his 20 points because he was late again and was terminated and he sued and, ultimately, the court said, you know what, he asked for an accommodation and you guys just laughed at him and you should have, at a minimum, negotiated with him over what kind of accommodation he was entitled to because sleep apnea is a disability and the ADA requires that employers provide accommodations to employees with disabilities enough so that they can perform the core functions of their job and if that means, you know, shedding some non-core functions, such as showing up at the same time as everybody else, that’s no problem just so long as he gets the core functions done.  And this guy, to his credit, even though he showed up late, he would still load as much product into trucks as someone who was there for the whole shift.  So, he had a hard time getting there, but once he was there and he got going, he was as a productive employee as anybody.

Brian Therrien:  Probably had another big shot of that caffeine.  Got him all wired up.

Curt K:  Maybe so, maybe so.  So in the end, the – my client was told, you know, you screwed up by not discussing accommodations with him and him showing up an hour late was something that you should have done.  You’re at fault for not accommodating him and we had to either take him back or pay him off and we paid him off probably the equivalent of six months wages for him.

Brian Therrien:  Um-hmm, um-hmm.

Curt K:  And he signed an agreement saying he wouldn’t, you know, he would really sell claims, wouldn’t sue us anymore for anything that happened up to that point and we went our separate ways, but here was the guy on the edge of being terminated because he can’t show up to work on time and when he says hey this is all because of an exception to at-will employment –

Brian Therrien:  Um-hmm.

Curt K:  -- my disability, he comes out on top.

Brian Therrien:  Yeah, and is one of the key factors how the ADA protected him is because he was still able to do his job?  When he got there he loaded as much.  Was that a key factor in this?

Curt K:  Yeah, that’s an important factor.  It’s – the way the ADA says it is that someone has to be able to do the essential functions of their job and what that basically means is the core functions.  You know if you are, let’s say, a truck driver and you – you can no longer drive trucks because you go blind –

Brian Therrien:  Um-hmm.

Curt K:  -- there’s no way that an employer can accommodate you so that you’re able to drive a truck –

Brian Therrien:  Okay.

Curt K:  -- because you’re blind.  You’ll know – there’s no way you can do the core function of your job.  Now, they may need to look at if there’s other jobs with that same employer you could do, in dispatch or something, and you should hold the employer to that.  But let’s say you do something like – let’s just say someone’s a receptionist well, or this guy whom he loads trucks.  You know, his core function was loading trucks, his non-core function was getting there at a certain time of day and it can be – it can be less clear than that where someone does, let’s say, 10 things during the day and they want to keep duties one through six and duties four through ten they’d like to get rid of or they have a hard time with because of their disability.  You argue that those four are non-core functions –

Brian Therrien:  Um-hmm.

Curt K:  -- and that the employer should reassign those four to someone else or give you a little extra help so that you can get those four done and a little extra help may be more time to do them, may be you do less of them and some of those duties are assigned to someone else, could be that you get to use a piece of technology that they should purchase for you that will help you get those other four functions done.  So whatever’s giving you a bad time, put that under the heading non-core function and then ask for an accommodation that will allow you to do that or jettison that.

Brian Therrien:  Okay.  All right and – and so that is certainly helpful for those that are working.  For those that, you know, are not working because they have lost their job and went through this, we’ll learn more about, you know, or should we discuss that now?  How your work could help them out?  What sort of advice would you have?  Let’s say somebody had this happen to them a year ago and I know there’s a statute in every state where you can take action or, I guess, this is kind of getting – maybe getting to complicated, but what words of advice, I guess, would you say, Curt, that you would have for people that have been through and they’re saying, oh geez, you know what, I did that and I still got canned.


Curt K:  Right, right.  There are – well, two things.  You know, one, is looking back, can we take any action against the company for what happened in the past and the statute of limitations, which is the time limit to take legal action, is generally – well, it’s going to be either one year or two years.

Brian Therrien:  Um-hmm.

Curt K:  And ideally it would be less than 180 days, or six months, so that you could utilize the ADA.  Then there are state laws that can last two years.  So, that part – that part gets a little foggy and it probably needs to be in writing but, at the most, two years, ideally, less than six months to do something about what happened in the past with a previous employer.

Brian Therrien:  Okay.

Curt K:  Now, going forward with a new employer, this is an area that I’ve wanted to put some material out on and haven’t yet, actually, so your audience is the first to get it, but you can use the same system when applying for a job where you say I’m absolutely qualified to do all of this stuff and your employer should not say, well, I notice you have a disability or they may say do have any disability that would prevent you from doing this if you have a reasonable accommodation, and if an applicant believes they could do it if the employer provided them some accommodation, even if it’s shedding some of the duties described, then an applicant should say that, yes, I can do it, there are no disabilities that would prevent me from doing the job.  And you don’t have to tell them what the disability is.  No legal requirement, whatsoever.

Brian Therrien:  This is a great tip.  So, is there a counterpart for at-will termination for somebody that is looking for a job, if there’s 10 people interviewing for the job.  Somebody that has a disability, let’s take Mike with sleep apnea, goes out and interviews for his next job and he knows that he can load trucks at another company, he can to that.  Is there something that is there in the ADA that says, you know, if he didn’t get the job and they – and they say it’s because he has sleep apnea that would protect him?

Curt K:  Yes.

Brian Therrien:  Okay.

Curt K:  Yes.  ADA has specific sections in it that protect applicants, too.  And most people take action on the ADA when they get fired.

Brian Therrien:  Um-hmm.

Curt K:  Fewer people take action when they’re applying for jobs, but, frankly, the law is as or even more protective of applicants than it is people who lose their job.

Brian Therrien:  Um-hmm.

Curt K:  So, it’s a great law to invoke if you’re struggling to find work and feel like a company is not giving you a full evaluation or consideration either because they think you have a disability or you have one that’s obvious and the company’s actually obligated to provide you some kind of accommodation that would allow you to do the job if that would make you, you know, the most qualified person.

Brian Therrien:  Um-hmm.

Curt K:  So, let’s – going back to Mike, he applies at another company and they say, we’ve got a 6:00 a.m. shift.  We load for for, five hours, until 11:00 a.m. and can you or is there any disability you have, any reason you can’t fulfil those duties?  He could honestly say, no, there’s no reason I can’t fulfil those duties, knowing full well that he can’t get there till 6:30 and he doesn’t have to even bring that up until after he has the job.

Brian Therrien:  Really?

Curt K:  Yeah, because he has the ability to do the job completely if they accommodate him by allowing him to come in at 6:30.

Brian Therrien:  Wow.  Well --

Curt K:  Yet, most people don’t realize that that’s the case.

Brian Therrien:  No.  They don’t know to – they don’t – they don’t know how to do that and most people are going to say, well, I’m not telling the truth.  I know I can’t get there.

Curt K:  And that’s not the issue.

Brian Therrien:  The issue is can you do the job?

Curt K:  The issue is can you do the job?  Right.

Brian Therrien:  Little nixonesque, but I guess that’s the way to justify it if you’re answering that question.

Curt K:  Well, that’s the intent of the law, though.

Brian Therrien:  Yeah.

Curt K:  It’s not like we’re fudging the law and being nixonesque.  We’re – we’re following the spirit and the letter of the law –

Brian Therrien:  Um-hmm.

Curt k:  -- which is to help people with disabilities get back to work.

Brian Therrien:  Yes, yes.

Curt K:  Even if doing the job means the employer has to do it differently than the employer wants to do it.

Brian Therrien:  Um-hmm.

Curt K:  The law assumes that.  So, you don’t have to agree that you’re going to do it the way the employer wants you to do it.  You just have to say, yes, I can do the job.

Brian Therrien:  Oh, wow, that is great, great.  Well, thanks for that little segway.  We’ll have you back.  We’ll talk more about the other side of the fence, you know, in getting a job --

Curt K:  Sure.

Brian Therrien:  -- on another occasion.  So, let’s get back to the, oh, the at-will employment.  The boss can fire you, basically, for anything.  However, there is this little protective clause that, I notice, in your work there that they can’t terminate you, basically, if you’re engaged in a protective action at work.  Explain that to us.

Curt K:  Well, the – they – and I should say up front, they – they can terminate you, but it would be dumb of them to do so, because it’s going to look illegal.

Brian Therrien:  Okay.

Curt K:  And they – so most employers realize how illegal it looks and they won’t terminate you.  An example is, let’s say someone feels like their boss is wanting to let them go, their boss is becoming much more scrutinizing of their work, nitpicking it, writing them up for every little thing, putting things in their file, making them meet with the HR Manager and they get some document saying, you know, you’re being written up and you – you might be terminated if such and such doesn’t change and the employee then goes and – to their doctor, brings something in saying I have a disability that prevents me from doing one, two, three, which happened to be the same things they said you could be terminated if you don’t do and, so, I need an accommodation to do that different.  So, the company lets met do it different.  The – the employer would then be really dumb to just terminate the employee anyway.  The employer should pause and address this accommodation issue or it’s going to look like what?  Like terminating the employee because he raised, or she, raised this accommodation issue.

Brian Therrien:  Back to the Mike situation.

Curt K:  And that’s illegal, yeah.  Just like with Mike in the warehouse.  You know, they terminated him right after he raised this issue and it looked horrible, you know –

Brian Therrien:  So, sorry to interrupt, but this really clarifies it, for me anyway, hopefully for the audience as well, is the – the protective act that we are referencing is it the doctor’s note in combination with the request for accommodation or just the accommodation, request for accommodation?

Curt K:  Ah, just the request for accommodation.

Brian Therrien:  Okay.

Curt K:  You don’t even have to have the doctor’s note, although that adds some gravity to your request, some seriousness.

Brian Therrien:  Um-hmm, um-hmm.

Curt K:  Just going to your employer and saying that you need some kind of accommodation because of a disability –

Brian Therrien:  Um-hmm.

Curt K:  -- and to be honest, you don’t even have to use the word accommodation and disability.  If it’s just obvious to the employer that you have a disability that’s preventing you from doing the job, that’s enough.  But, for our purposes, we want to actively go tell them so that they have no excuse.  They can’t say, oh, I didn’t know that Jim had a disability.  They – they always look fine to me.

Brian Therrien:  Are – are there – are there some top accommodation requests out here, you know, is there a top two or three that you know off the top of your head that, you know, would help people save their jobs if they had requested for it, that you see?

Curt K:  Well, one of them is as an accommodation they want more time to get something done, that always helps and, you know, their disability makes them work a little bit slower.  They can still do the quality that the – the boss wants, but if they do that quality, higher quality, they’re going to go a bit slower because of their disability, so, they need a bit more time.

Brian Therrien:  So, it’s not necessarily getting, you know, a screen reader or adaptive equipment, it’s – it can be, you know, something that they don’t have to purchase, like time, right?  That’s – that’s good, good.

Curt K:  Right.  And an employer has a real challenge saying, oh, no, that accommodation is too much of a burden on – on the company if all you’re asking for is some more time.

Brian Therrien:  Um-hmm, um-hmm.

Curt K:  You know, there are a few things – and it can be a screen reader, like you mentioned, or permission to sit on a stool as you work as a cashier in a store instead of stand –

Brian Therrien:  Yeah.

Curt K:  Things like that.  More frequent breaks –

Brian Therrien:  Um-hmm.

Curt K:  -- is a common request when it comes to accommodations.

Brian Therrien:  Um-hmm.

Curt K:  I was working with someone whom was diabetic and they needed more frequent breaks to go eat something and maintain their blood sugar level and the employer was all huffy about it because we need to be fair and give everyone the exact same breaks.  Well that – that runs specifically foul of the ADA, which says it’s ok to treat people with a disability a bit better so that they can stay employed.

Brian Therrien:  Nice.  Well, those are some good examples.  Where does the EEOC come in to all of this?  More specifically, Curt, if somebody is getting some tale tail signs that, you know, they’re going to HR, the boss is putting them under scrutiny, should they – should they approach the EEOC at that time and file a complaint or when, in this process, is that appropriate and is that a protective act, that’s in the second part of the question?

Curt K:  Okay.  The second part first.  Yes, filing with the EEOC is a protected act.  So, if you have a disability, that’s like one exception to at-will employment.  If you file with the EEOC, that’s another exception to at-will employment.  In other words, it’s illegal for an employer to get mad at you for filing with the EEOC and terminate you because you filed with the EEOC or demote you because you filed with the EEOC or take away your shifts or lower your pay or – or give you crappy work.  You know, any kind of worse treatment, because you filed with the EEOC, is illegal and – and employers have a difficult time not treating someone worse because they’re mad that they got tattled on.

Brian Therrien:  Um-hmm, um-hmm.

Curt K:  So, the employer often treats someone worse and I tell people, you know, it may be unpleasant to have your – your boss mad at you, but if they’re mad at you because you filed with the EEOC just smile and take it because you know, inside, that the boss is just digging their own grave.

Brian Therrien:  Um-hmm, you’ve got them.

Curt K:  Yeah.

Brian Therrien:  People just have to know their rights.  That’s the deal.

Curt K:  Yeah, yeah.  So, filing with the EEOC.  If you’re going to file – it’s kind of like filing a lawsuit light or lawsuit junior is a way to think of it.  A typical pattern is someone has something go wrong at work, they file with the EEOC, which is required if you’re going to file a lawsuit with the ADA – under the ADA, anyway, so you file a complaint with the EEOC saying my employer treated me wrong because of my disability when they refused to talk about accommodations with me after I requested them and then, let’s say, a few months later the employer goes ahead and terminates the person, they then can get a lawyer and file a lawsuit in court because they’ve filed with the EEOC first.  What usually happens, kind of getting back to the example you gave me when you asked me this question, when someone is feeling nit picked and pressured, they start by going to HR and employee learns that HR isn’t interested in protecting them against the boss.  It soon becomes evident to the employee that HR is there to protect the boss, because that’s who lines HRs pocket.

Brian Therrien:  That’s who writes the pay check, yep.

Curt K:  Yeah, and so that’s who they defend, even though they pretend like they’re your friend, they will always take the company’s side, always.  They’re not a neutral mediator between parties.  So, the employee feels at a loss, that’s often when they turn to me and they say, what do I do now?  And one thing I frequently say is file a complaint with the EEOC that you’re being treated worse because of your disability and what happens is the employer, who feels like they can let anybody go at any time for any reason, gets this legal document in the mail that says United States Department of Equal Employment Opportunity Commission, is the C, and so they get this legal document in the mail that says there is a legal complaint against them for their treatment of the worker, Jim, and there’s going to be an investigation and an EEOC investigator will contact them and they need to write a written response within 14 days.  Well, suddenly the employer is like, oh my gosh, this is out of my hands now.  You know, someone else is evaluating my behavior.  And, so, they suddenly start treating the employee much better because they’re afraid of getting tagged by the EEOC.  And that’s one way to put the brakes on an imminent termination.

Brian Therrien:  Um-hmm.  Okay.  Two really solid tips.  Request for accommodation and EEOC.  How does the – how’s the FMLA factor in all of this?  Somebody’s gone through this.  Let’s, you know, back to the Mike situation.  Did he go out on an FMLA leave or?

Curt K:  It was Mike, our warehouseman?

Brian Therrien:  Yeah.

Curt K:  I’m forgetting what I named people.

Brian Therrien:  It’s probably good actually.

Curt K:  That exact guy, no, he didn’t, but we can use that example.  You know, he’s – he’s close to getting terminated.  He goes to the doctor and the doctor says, you have a serious medical condition of sleep apnea and I need you to stay off work for at least three days and that’s the bright line for qualifying for FMLA.  Serious medical condition that keeps you out of work for three days.

Brian Therrien:  Okay.

Curt K:  And – so we can adjust your medications for sleep apnea and get them working right so that you can get up in the morning.

Brian Therrien:  Get you off the caffeine.

Curt K:  Yeah, and sleep at night.  So, Mike can mail in, fax in, or hand deliver these FMLA documents to the company, say I’m going out on FMLA and he doesn’t have to ask permission to go out on FMLA, even though it might sound like that at first, when you read the whole thing in detail, you don’t have to ask permission.  The doctor says you’re going out, you’re out.  Nothing the employer can do about it.

Brian Therrien:  It’s not like filing for short-term disability.  It’s – it’s no – there’s no approval process?  Because that’s an insurance.  So the FMLA is covered by?

Curt K:  The FMLA is a federal law.  It’s enforced by the EEOC and the courts.

Brian Therrien:  Federal law.  Um-hmm.

Curt K:  And it requires a company to let someone go off work, and here’s the difficult part for some employees, it’s without pay, but you do get your benefits covered.

Brian Therrien:  Okay.

Curt K:  And if you’ve got any sick leave accrued or vacation leave accrued you can use that so that you do get paid.

Brian Therrien:  All right.  So, can the FM – can this leave be longer than three days or is it only three days?

Curt K:  It can be up to 12 weeks.

Brian Therrien:  Oh, wow.

Curt K:  So, let’s say someone really needs their benefits, but they don’t need the job, per se, you know, they’re working for the benefits.  They can go out on FMLA for 12 weeks and keep their benefits.

Brian Therrien:  Um-hmm.

Curt K:  And – and not work, but you have to have a doctor who’s willing to say this employee’s medical condition requires that they be off of work for 12 weeks.

Brian Therrien:  It’s something else in your work where you mentioned if you’re – if you’re on FMLA you can come and go to work as you please?  What’s that – what’s that all about?

Curt K:  Yeah.  Well, that sounds a little crazy and it’s been tempered a little bit by a revision to the FM – by a revision done by Congress, but – because employers were screaming bloody murder – but what that means is that, let’s say that you are at work and you feel awful and – well, let’s just use an example of someone who has epilepsy or even lighter than that, their blood sugar levels are going crazy and they feel lightheaded and they want to go home.  Well, they can tell their boss that they need to go home and they can just leave and the boss can’t do anything about it just so long as you can come back with an FMLA form from your doctor that says that, you know, Mike’s diabetes flared up and he had to go home, so consider that FMLA leave.

Brian Therrien:  So, you can do it even after the fact?

Curt K:  Yeah, you can.  You can.  And all you have to do is follow the same procedure that you would follow with sick leave as far as how much notice you give your employer, but you don’t have to wait for your employer to say yes or no.  So, you know, if your company says you can’t leave here when you’re sick unless you tell your boss, you know, then you need to tell your boss that you’re leaving, but you don’t have to wait for your boss to say okay or your boss doesn’t get to interrogate you about why, you know, you can just say my medical condition, that’s all.

Brian Therrien:  Um-hmm.

Curt K:  He doesn’t get – doesn’t get to go into details and you can just take off.

Brian Therrien:  Wow.

Curt K:  Just so long as you notify them.  Now, let’s say some morning someone has – what was another one?  Someone had MS that I was working with and it would – they would frequently wake up in the morning, frequently, but it was unpredictable, and they would just feel all – I don’t have it so I can’t – I understand that it’s awful and they’ll feel real tight and they can’t move around much and, because I guess it progressively gets worse, and they have a very difficult time getting moving and then other mornings they’ll be fine.  So, a morning like this would come up.  They can call in and say I’m not going to be in till 10:00 or noon and I want it to be FMLA time and there’s nothing the employer can do.  Can’t – can’t punish them, can’t put it down as an absence on attendance policy, you know, like our warehouseman who would get points for being late.

Brian Therrien:  Um-hmm.

Curt K:  You call in and say you’re out because of the FMLA, there’s no points – they can’t give you any deductions or demerits or anything.

Brian Therrien:  That’s a game changer right there, yeah.

Curt K:  Yeah, they do that and then you can go file with the FMLA for discrimination.

Brian Therrien:  Okay.

Curt K:  So, you can call – and all you have to do is call in the same way that you would if you were sick.  So, if the company says, you know, call into your boss an hour before your shift starts, just so long as you do that, you’re fine.  And then there’s even an exception where unless it’s impossible or, you know, so burdensome that it’s nearly impossible.  So, if your doctor’s willing to say, you know, when Mike’s MS flares up in the morning, there’s no way he can call in.  Then you don’t even have to call in.  You can just miss --

Brian Therrien:  Just don’t –

Curt K:  -- you can just miss work, come back in the next day with a note from the doctor saying you couldn’t call in because of your MS and you want it to be FMLA time, absolutely nothing the company can do to punish you in any way.

Brian Therrien:  Very nice.  Great information.

Curt K:  Yeah, it’s a very powerful law and a lot of people don’t realize that it’s there to use.

Brian Therrien:  Well, most people probably don’t want to think that they ever have to use it.

Curt K:  Yeah, yeah.  And I should emphasize that the FMLA doesn’t require a full blown disability.  It only requires a serious medical condition.  So – and a serious medical condition is just defined as it keeps you out of work for three days or you spend one night, overnight, in a hospital or medical facility.

Brian Therrien:  Um-hmm, um-hmm.

Curt K:  So, ironically, let’s say you spend the night somewhere for plastic surgery, even if it’s elective, if it’s one night – if it’s overnight, you qualify for the FMLA.  And the FMLA, itself, says, you know, headaches and colds, in most cases, wouldn’t be qualifying as a serious medical condition.  However, that means, in some cases, they can.  So, if you’ve got a headache or a cold so bad you have to be off work for three days, you qualify for the FMLA.

Brian Therrien:  Geez.

Curt K:  Nothing your employer can do about your absence and that’s why I call it a silver bullet for absences.

Brian Therrien:  Um-hmm.  It really is.  That’s a good explanation.

Curt K:  Yeah.  So, if someone out there is struggling with attendance or timeliness at work, the FMLA is your answer.  It will protect you and keep you from losing your job.

Brian Therrien:  Okay.  All right.  Well, this has been great.  Let’s – let’s go do a little recap here and hit some of the highlights of this – of this great information we talked about today, Curt, okay?

Curt K:  All right, yeah.

Brian Therrien:  Make sure I got it, all right?  So, the first thing is understand at-will employment.  For the most part, people that don’t have contracts, the general working population, is that you can be fired at any point in time for, basically, for any reason?

Curt K:  Yeah.  And I would emphasize that what that means is your boss is not legally obligated to be fair to you.

Brian Therrien:  Yeah, yeah.

Curt K:  You can’t complain because your boss is unfair.

Brian Therrien:  Okay.

Curt K:  You have to complain that your boss is treating you worse because of a protected class, an exception to at-will.

Brian Therrien:  Um-hmm, um-hmm.

Curt K:  And one of – one of the big ones is disability.

Brian Therrien:  Okay, good.  So, so the protected steps, if you sense that you’re getting some heat and you’re coming under scrutiny is a request for accommodation and another one would be filing an EEOC complaint.

Curt K:  Yes.

Brian Therrien:  And the third silver bullet that you can use here is the FMLA if you’re going to be out.  So, those are three key steps that people can do to protect themselves in the workplace.

Curt K:  Exactly right.  Very good summary.

Brian Therrien:  Great, great.  Okay.  You also gave us some great tips for those that are going to be out going – looking for work, which is super.  Okay.  Let’s talk about, in closing here, over at undercoverlawyer, the work that you do and we’ll put a link at the bottom so people can, you know, go on over and check your stuff out.  So over there, again, somebody can sign up, they get – I think I’ve been through seven or so brilliant lessons that I’ve learned stuff that we can communicate back to members, a lot of what we talked about today.  And you do podcasts and for those that are really stuck in the process, you’ve got some, you know, you’ve got different books that they can get versus – and they would use this book – one of them’s called Work Laws Exposed, correct?

Curt K:  Yeah.  Work Laws Exposed.

Brian Therrien:  Work Laws Exposed and that would be applicable for somebody that, you know, they can use the strategies that are outlined in the book to – as an alternative to hiring an attorney; is that correct?

Curt K:  Yeah.  Yes, up to the point of filing a lawsuit.

Brian Therrien:  Okay.

Curt K:  Yeah.  What I’ve tried to provide people – you know, attorneys don’t like to help people who are still employed because they haven’t lost any money yet.  You know, an attorney wants to recover one-third, you know, on a contingency fee of a whole lot of money.  But if you’re still employed, the attorneys going to recover, even if they win, one-third of nothing.

Brian Therrien:  Yeah, that’s not going to get their attention.

Curt K:  Yeah.  So there’s all these people out there who really need the advice of an attorney before they get fired.

Brian Therrien:  Um-hmm.

Curt K:  And those are the people I wrote Work Laws Exposed for.

Brain Therrien:  Okay, okay.  So, somebody that is going through this turmoil, I mean, and – and needs to know more about a request for accommodation and filing an EEOC complaint, is that covered?

Curt K:  Yes.

Brian Therrien:  Great, great.  There’s the answer, so good.  So, great.  Curt, well, listen, I – I want to thank you, first of all, for stepping up and, you know, providing this information out there.  It’s brilliant and I’m really intrigued with how you’ve gone about it and, you know, and jumping the fence and remaining anonymous.  Anything in closing you want to share with the audience?

Curt K:  Oh, I – I guess if you go to www.undercoverlawyer.com , the seven free lessons that Brian mentioned, you can sign up for those in the green box in the top right-hand corner of the website.

Brian Therrien:  Great.

Curt K:  And Then you’ll get one every day or every other day and there’s seven and then you’ll get something from me every week or two and each time I’m just sending out more free info about protecting yourself at work with the law.

Brian Therrien:  Brilliant, brilliant.  Well, thank you, on behalf of our members that are out there for providing this great information again.  It’s been a pleasure to have a chat with you today.

Curt K:  Yeah, I appreciate it.  And I – I hope there’s some who can be helped.

Brian Therrien:  Great.  Well, that’s the goal.  Appreciate your time, Curt.  Thank.

Curt K:  You bet.

{end of the interview}