Check Yourself

Check Yourself

This is a strange year.  Normally, I’d be writing a blog that outlines the perils of the office holiday party. Not this year. It is safe to say that the office holiday party will not take place in 2020.  But what will replace it? Zoom holiday parties.

Normally, for a lawyer who represents individuals, the office holiday party is a business bonanza. There is alcohol involved, and people often misbehave. In this time of remote working, it seems like those risks are minimized. 

However, new issues arise.

With the widespread participation in video conferences, people still behave badly.  Jeffrey Toobin is one example.  In another, a school board member had to resign after she took her laptop with her to the bathroom and failed to mute the Zoom link.

In the spirit of the “remote” work year, I’ll share the same advice I would share as if there were in-person office holiday parties.

When you are on Zoom conferences, remember that you are at work. Act accordingly. When lawyers prepare a client for a deposition, we often tell our clients, “there is no such thing as off the record.”  And the Zoom conference is just like that.  When you are on a Zoom conference, you are not off the record.  You are still at the office, and you must act accordingly.

What does that mean:

  • Wear appropriate attire. (Yes, that means wearing pants).
  • Remember you are on camera and on a microphone.
  • Double-check a setting to make sure you have muted your video or your microphone before doing something you would not do while sitting directly across from another person.
  • Mind what you say and avoid controversial topics during the conversation.
  • Be careful what you say in the Zoom chat. Even if you think you are sending a private chat message, the host can see the entire chat thread.

In this day of social media, what happens on Zoom does not always stay private. It may get shared among your office workers. And it may go viral. You don’t want to be that person. While this is the season to celebrate, just remember there is no such thing as “off the record.”  Even if it is a party, you are still at the office. Act accordingly.


Families First Coronavirus Response Act

Families First Coronavirus Response Act

What you need to know about the Families First Coronavirus Response Act

In response to the national Covid-19 or “coronavirus” emergency, Congress recently passed the Families First Coronavirus Response Act. For employees, there are two key parts to this statute.The first creates an emergency expansion of the Family & Medical Leave Act and the second pertains to paid sick time during the emergency. These two laws will become effective on April 2, 2020. I discuss them in more detail below.

Emergency Family and Medical Leave Act

This amends FMLA from April 2, 2020 to December 23, 2020 for an employee who has a qualifying need related to a public health emergency.

  • A “qualified need related to a public health emergency” means that the employee in unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed or the child care provider of such son or daughter is unavailable due to a public health emergency.
  • A “public health emergency” means an emergency with respect to COVID-19 declared by Federal, State or local authority.

To be eligible, the employee must have worked for a company with fewer than 500 employees for at least 30 days. For the first 10 days of leave, leave is unpaid.  After that, the employer shall provide paid leave at two-thirds of the employees pay rate. However, in no event shall such paid leave exceed $200 per day or $10,000 in the aggregate.

An employee who needs to take such leave shall provide such notice of the need for leave as is practicable. An employee who takes this emergency FMLA may be eligible to be restored to his or her position.  However, the job restoration requirements have caveats.

Companies with less than 50 employees can seek an exemption from the Department of Labor for all of these requirements.

Emergency Paid Sick Leave Act

Under this new law, an employer shall provide to each employee employed by the employer paid sick time to the extent that the employee is unable to work (or telework) due to a need for leave because:

  • the employee is subject to a Federal, State or local quarantine or isolation order related to Covid-19;
  • the employee has been advised by a health care provider to self-quarantine due to concerns related to Covid-19;
  • the employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
  • the employee is caring for an individual who is subject to an order as described in subparagraphs 1 or has been advised as described in subparagraph 2;
  • the employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable due to COVID-19 precautions;
  • the employee is experiencing any other substantially similar condition specified by the Secretary of HHS in consultation with the Secretary of the Treasurer and the Secretary of Labor.

This new law applies to companies who are engaged in any industry affecting commerce that employ less than 500 people.

Hours of Paid Sick Leave

A full-time employee will receive to 80 hours of paid sick leave and a part-time employee get a number of hours equal to average that the employees works over 2 weeks. This paid sick leave shall be available for immediate use.

Protection from Retaliation

An employer cannot discharge, discipline, or in any other manner discriminate against any employee who (1) takes leave in accordance with this act or (2) has filed any complaint or instituted any proceeding related to this act. If the employer does so, there damage and penalties provisions of the FLSA kick in and give the employee a claim against the employer.

Paid Sick Time

The amount of paid sick leave will vary depending on the reason for the sick leave.  If it is reasons (1), (2) or (3), the employee will get paid the regular rate of pay except that the pay shall not exceed $511 per day and $5,110 total. 

If the employee is using the paid sick leave for a reason described in (4), (5), or (6),  then the employee will be paid 2/3 of the employee’s rate of pay and not more than $200 per day and $2000 total.

Not later than 15 days after the enactment of this Act, Secretary of Labor shall issue guidelines to assist employers in calculating the amount of paid sick time.

After the first workday an employee receives paid sick time, an employer may require the employee to follow such reasonable notice procedures in order to continue receiving such paid sick time.


These laws are new, and they are tricky.  Companies are just now trying to figure out how to comply with these laws and employees are trying to figure out their rights.

If you have questions about your rights, please contact us.

Getting Help

if you believe you have experienced retaliation for reporting tax fraud or violations of the internal revenue code, we can help. Click the Tell Us About Your Problem button to start.

Taxpayer First Act Aims To Protect Tax Fraud Whistleblowers

Taxpayer First Act Aims To Protect Tax Fraud Whistleblowers

Not Everything is Protected

A common misperception about employment law is that the law will protect any employees who does the right thing and reports wrongdoing. Unfortunately, this is not always true. When an employee reports wrongdoing or possible fraud, only certain kinds of reports are protected.

Each situation is different and the law leaves many gaps in protection. For example, if an employee suspects securities fraud and reports it, whether that report is protected by law depends on whether the company is a publicly traded company.

Taxpayer First Act Now Protects Tax Fraud Whistleblowers

Before July 1, 2019, if an employee reported tax fraud and got fired for it, that was not illegal. The fired employee had no remedy for being fired except to report the company to the IRS and to hope for a bounty claim.

Last year, Congress passed a new law, the Taxpayer First Act, that finally closed this gap in protection. Effective July 1, 2019, federal law now provides extensive protection to an employee who reports possible tax fraud or violations of the internal revenue code, including a whistleblower cause of action.

To get protection, the employee must have a reasonable belief that the employee is reporting tax fraud or a violation of the internal revenue code. The employee can make this report either internally or externally. While some whistleblower laws require an employee to make a report to an actual law enforcement authority, this law does not — it is enough for the employee to report it to a supervisor.

Whistleblower Damages for Tax Fraud

If an employee makes this kind of report and gets fired for it, this new law gives the employee a claim with real teeth. The remedies an employee can seek include 200% of the back pay and 100% of any lost benefits. The employee can also recover “special damages” as well as attorney’s fees and costs.


180 Days to File Claim

If an employee has been fired for making this kind of tax fraud report, the employee must file a claim with the Department of Labor’s OSHA division within 180 days. So, an employee has no time to waste.

As tax season approaches, employees who see their employers violate the internal revenue code can at least know that some legal protection now exists if they decide to report it.

 Getting Help

if you believe you have experienced retaliation for reporting tax fraud or violations of the internal revenue code, we can help. Click the Tell Us About Your Problem button to start.

Discrimination: Let’s Get Real About Damages

Discrimination: Let’s Get Real About Damages

Let’s Get Real about Damages

For employees discriminated against at work, it can be hard to focus on anything except how disrespected that makes them feel and on all of the things their employer has done wrong. When those employees come to me, they are often angry, emotional and anxious for justice. This naturally brings up for the question – what kind of monetary damages are potentially avaiblable?

The short answer is that it varies and the potential recovery sometimes might not be as much as many have been lead to believe.

Types of Damages

In an employment discrimination case, employees can ask for a variety of different types of damages to “make them whole”:

  • Back Pay. It is the amount of money an employee would have earned from the date of the adverse action until the date of trial (less any money earned in the meantime).
  • Front Pay. If an employee accepts new employment at a lower salary, he or she can sometimes get the court to award the difference between the old salary and the new salary for some period of time going forward from the trial date.
  • Compensatory damages. An amount awarded for mental anguish and emotional distress and other intangible harms and losses caused by the termination.
  • Punitive damages. If the company’s actions are extraordinarily egregious, an employee may be able to ask for some amount of money to punish the company and to deter future conduct.
  • Attorney’s fees and court costs. Sometimes available, as discussed below.

Damage Caps

Some of the damages available for recovery in these categories are capped by law. While some anti-discrimination statutes do not have damage caps, most do.

Compensatory and punitive damages are both subject to caps based on the number of employees at the company. So, if an employee works for a small company, the maximum damage recovery for compensatory and punitive damages is $50,000–no matter how egregious the company’s conduct was. The largest cap is for companies with 500 or more employees—and that amount is $300,000. 

So, when you see a jury verdict reported in the newspaper that awards millions of dollars for compensatory damages or punitive damages in a discrimination case, know that those amounts will usually get reduced by the court. 

Attorneys Fees

While employees can seek to recover attorney’s fees if they win a lawsuit, that street runs both ways. If the the employer wins, they can likewise ask the court to award it attorney’s fees. Generally, the court is not going to award attorney’s fees to a company when an individual loses a lawsuit unless the claims were frivolous or baseless or the employee kept pursuing them after the point in time when the employee should have known that the claims were frivolous or baseless.  However, the court will award the company its hard “out of pocket” costs of court.  So, there is always some risk in pursuing a claim.

Calculating Damages

One of the hardest things to determine is what an employee’s damages are right after the employee has been fired. It frequently depends on how quickly the employee can replace the job. Often, when we are negotiating a severance or early settlement of a claim, we make an educated guess as to what it takes to make someone whole. If the employee can get a new job quickly that replaces the salary, the damages are quite small. However, if it takes a year or so for the employee to find a new job, the damages can be much higher.

“It Depends”

So, just know that if you ask a lawyer what you can get in an employment discrimination lawsuit, the answer is going to be “it depends.”  Be prepared to walk through all of these categories with your lawyer to figure out how to evaluate your potential claims.

What You Need to Know About Hiring a Lawyer

What You Need to Know About Hiring a Lawyer

Need a Lawyer?

When you are facing a job loss or a crisis at work and need a lawyer, you may be full of questions, like . . .

What do I want to achieve?

What kind of lawyer am I looking for?

What am I getting into?

How does the process work?

Here are some of my tips for what to look for in a lawyer, and a few answers to these questions.

Find Someone you Trust

Hiring a lawyer to represent you in an employment dispute is a very personal thing.  You’ve got to find someone who you trust and who makes you feel comfortable. You need to know that the lawyer understands what happened to you and understands what your goals are. And you need to feel like your lawyer is listening to you, is approachable and will be responsive to you.

Not every lawyer is a good match for every client.  Every lawyer has a different personality and style and that personality and style may not mesh with yours.  It does not mean that the lawyer is not a good lawyer.  It just means that the lawyer is not a good lawyer for you. 

Organize your Information.

After a job loss, it can be difficult to separate the emotions caused by the job loss from the facts of what happened.  But it is really important to do that and to drill down to the actual facts of what happened. 

Think like a journalist: who, what, when, where and why.

Before you meet with a lawyer, Distill the facts into an organized timeline of events and list of all of the people who play a part in your issue. This will help your lawyer figure out what legal claims may be available to you.

Think about Your Goals

What is the outcome you are looking for? 

Think about it!

You may not have any idea what your goals are, but that is o.k.  You may just want to meet with a lawyer to find out if you may have a claim so you can decide from there.

And you having given some thought as to what a good resolution looks like to you is very helpful to your lawyer.

Understand How Lawyers Charge for Their Services

Lawyers sell their time and their expertise by charging either an hourly rate or a contingent fee.  An hourly rate is a fee for all time spent on the matter, usually billed in a tenth of an hour increment.  A contingent fee means that you do not pay the lawyer until the lawyer obtains a recovery for you.  When that happens, you pay an agreed upon percentage of your recovery to the lawyer as the fee.

Fitzgerald Law does both arrangements. In some cases, an hourly fee is the most appropriate way to charge for a matter.  In other cases, our firm will take a case on a contingent fee basis. Whether using an hourly or contingency arrangement, we always require  reimbursements for any out of pocket costs or expenses. 

When we meet with potential clients, we charge an hourly for those consultations. Many times, clients come to me to see just to find out what their rights might be.  Often, the client does not have a claim. In those cases, the office visit is just like a doctor’s office visit where the doctor tells you that you have a virus and to take a Tylenol. Because we provide valuable legal expertise in the consultation meeting, we charge for those visits.  We found that our clients understand and appreciate this arrangement.

Do Not Wait Until the Last Minute

Do not procrastinate.  If you think you might have an employment claim, you typically have a very short window of time to file a charge of discrimination or other kind of complaint.  If you have been laid off or fired and offered a severance package, you will typically only have a few weeks before deciding whether to accept it or not.  Lawyers can be busy.  If you delay, you might not be able to get a meeting quickly.  So, if you think you need to talk to an employment lawyer, reach out fast.

If you think you have an employment issue, please contact us  by clicking Tell Us About Your Problem.