Late To Work? These Excuses Could Get You Fired

Michelle Edwards says she called in one hour late to work, telling her boss she needed to care for her mother, recovering from surgery. But the boss' response was that she was already fired for "no call, no show," according to the lawsuit Edwards filed against her employer, Advanced Temporaries Inc.

Which raises the question: Can you legally be fired for coming to work late? Even if you're only one hour late? The answer is yes, of course. You are probably an at-will employee (unless you live in Montana or have a contract saying otherwise), which means you can be fired for any reason or no reason at all. You can be fired because your boss was in a bad mood that day, so you can definitely be fired for coming in late.

There are, however, some laws that protect you from being fired for coming in late under some limited circumstances. These five laws might protect you if you have an emergency that requires you to come to work late:

Fair Labor Standards Act: If you are classified as an "exempt" employee, your employer is supposed to pay you for a full day even if you are late. If the employer treats you like an hourly employee, docking you (or firing you) if you are late, you might be misclassified under the Fair Labor Standards Act. That means your employer could be liable for all the time they docked you, plus all your overtime worked, plus liquidated damages that double the amount they owe, plus your attorney's fees and costs. Even worse, they can be forced to pay for any other employees who were misclassified.

Americans With Disabilities Act: If you are disabled or have a chronic medical condition that is disabling when it is active, you might be covered under the Americans With Disabilities Act. This law says your employer must grant a reasonable accommodation that allows you to do your job with your disability. You might be able to request a reasonable accommodation to come in later when you need to have a medical appointment, if your chronic condition kicks in, or if you suffer side effects when your doctor prescribes new medications.

Family and Medical Leave: If your company has 50 or more employees within a 75 mile radius, you've worked at least a year, and you've worked at least 1,250 hours in the last 12 months, you may be covered under the Family and Medical Leave Act. This law gives you up to 12 weeks of continuous or intermittent leave to deal with a serious medical condition of an immediate family member or you. If an immediate family member or you need regular doctor's appointments for a medical condition, you can apply for intermittent leave (but you have to apply in advance, as soon as you know about the need for the appointments). If an immediate family member or you have an emergency relating to a serious medical condition, you may be covered even if you haven't applied for leave in advance. In that case, you need to call in ASAP, and fill out the FMLA paperwork as soon as you can.

Domestic violence leave: If you need to come in late due to a medical emergency cause by domestic violence, or if you need to apply for an emergency injunction or seek police assistance relating to domestic violence, at least 16 states have laws or local ordinances that protect you from being fired. The legal requirements vary from state to state (or municipality if there's a local ordinance), so you should talk to your lawyer or your victim's advocate to find out your rights and responsibilities under these laws.

Testifying under subpoena: Some states have laws that protect you from being fired if you need to miss or be late for work due to being subpoenaed to testify at a trial or deposition. Sometimes, if you're subpoenaed for a trial, you'll be on call and might not know until the last minute that you'll be called that day.

What Isn't Covered?

Most other common excuses for lateness aren't protected under any law. You probably have no law that will save you from being fired if you use these old chestnuts:

Your car broke down. Sorry. No legal protection. Take public transportation or a cab if you have to. Just get to work. It may cost you some money, but it's cheaper than getting fired.

You have a case of "wine flu." Employers know that workers sometimes are hung over from too much partying, particularly on Monday morning. You'll find that many employers keep track of Monday absences and lateness in particular. No employer is going to excuse you for having a hangover.

Teacher conference ran late. Many schools aren't accommodating to working parents. Teachers sometimes demand conferences when it works for them -- during the daytime -- and sometimes those conferences run late. If your boss isn't understanding, you can be fired. Try to schedule those conferences after work, at lunch, or on your day off if you can.

You had to go to jury duty. Get real. You know you got your notice weeks in advance. While you can't be fired for missing work for jury duty, you can absolutely be fired if you don't bother to tell your company about it until after you show up late the day you had to report for jury duty. You should have told them as soon as you got the notice. If you get excused from jury duty early, you have to let your boss know and come in to work if they want you to. It's not a vacation day.

If you do have an excused absence that's legally protected, you still have some responsibilities. Even if there's a law protecting you, you're not home free. You have responsibilities to your employer whether or not you're legally protected. Make sure that you jump through these five hoops so that you don't get fired for being late:

Give notice. Let your employer know as soon as you can about your need to be late. If you have a doctor's appointment, for instance, you'll know in advance. If you are subpoenaed, let the employer know when you're on call and that you might be called at the last minute. If you have a medical emergency, call before you head to the doctor if you can, or as soon as practical. If you're so sick that you can't call, make sure a family member calls. Then call personally as soon as you can.

Call the right person. Your handbook or company policy might require you to call a specific person if you're going to be late. Don't leave a message with a co-worker or rely on leaving a voice mail if you are required to speak to your supervisor or human resources department. If you can't reach the person directly, follow up with an email, text message or a follow-up phone call. Make sure that the person acknowledges that they know you are going to be late. Don't be accused of a no-show no-call.

Confirm in writing. Even if you confirm by phone, follow up with a text, email or fax. Make sure you have proof that you called. If your supervisor is unscrupulous, they might deny that you called.

Get a doctor's note. Family and Medical Leave and disability discrimination laws may require you to have medical certification. For FMLA, your doctor needs to fill in the forms that your employer gives you. Doctors sometimes punt on this and don't fill them out, don't fill them out completely, or give the wrong information. Before you turn in the forms, make sure that the information is correct and complete. If you need a doctor's note each time that you have a doctor's appointment for intermittent leave or for a disability, make sure that you get it before you leave the doctor's office.

Every minute counts. Don't be one of those people who come in five or 10, or even one minute late once or twice a week. It may seem petty to you, but your boss has to deal with other employees as well. How hard is it to wake up a few minutes or an hour earlier to make sure you get to work on time? If they let you come in one minute late, then the employee who sits next to you will want to come in five minutes late. Then another will want to come in 10 minutes late. The next person will think an hour is reasonable. It has to stop somewhere. Your boss can stop it by firing you.

Don't give them an excuse.

How Do I Prove I'm Paid Less Than My Male Co-Workers?

A recent article in Newsweek discussed the continuing pay gap between men and women, and suggested some reasons why women still make less than their male colleagues. Another recent story discussed how female doctors are paid less than male doctors. I'm not going to argue here whether or not the pay gap is real. Instead, I want to discuss that, at least in some workplaces, women are paid less than men for the same work. The Newsweek article contained a disturbing statement: "In many workplaces, discussing pay is frowned upon; in some, it's a dismissible offense. So, like Ledbetter, women often don't know when they're getting paid less than men." Lilly Ledbetter, the pay discrimination victim who lost her case and inspired a law, found out about how much less she made than her male colleagues when she got an anonymous note.

If you aren't lucky enough to get a note from someone brave enough to tell you that you're a victim of discrimination, how do you go about proving pay discrimination? Here are eight ways that you can find out if your male colleagues make more than you for the same work:

  1. Ask your colleagues. The reason the statement in the Newsweek article disturbed me is that non-supervisory employees in private workplaces have the absolute right to discuss working conditions, including pay. That right is in the National Labor Relations Act, which applies to most non-government workplaces. If you're a supervisor, you may be out of luck on this. The NLRA doesn't apply to supervisors. If the company has an illegal policy saying that you aren't allowed to discuss pay with co-workers, you can report them to the NLRB. The better your relationships at work, the more likely someone will simply tell you what you want to know.

  2. Ask your senator to support the paycheck fairness act. An important bill that would have assisted women in proving pay disparity just failed in the Senate. Among other things, the Paycheck Fairness Act would have prohibited employers from retaliating against even supervisory employees who discuss or disclose wages of co-workers. It also would have made it easier for employees to prove pay disparity.

  3. Ask former colleagues. If your colleagues can't or won't discuss their wages, maybe a former colleague will. If you have a good relationship with a male former co-worker, ask them how much they made. If they made more than you for the same work, it might be another way to prove pay discrimination.

  4. Look at public records. If the company has to file documents with the SEC or other government agencies, those records may include employment agreements or other pay records.

  5. Look at unemployment filings. If your state law says that a company's unemployment tax returns are public record, ask to see your company's records. These records will list every single employee and what they were paid. Ask your boss or HR: Sometimes they'll actually tell you what your colleagues make. If you think they'll retaliate, don't take this step. I'd only recommend this if you have a good relationship with someone in management or HR.

  6. Look at severance agreements. Severance agreements are usually based on a certain number of weeks or months of pay. Some of them become public record in SEC filings. Sometimes former colleagues are willing to show them to you. Depending on your job, they might even come across your desk. Occasionally, the agreements pop up online. If you Google "severance agreement" and your company name, you might be surprised what pops up.

  7. Look at employee lawsuits. If a former or current colleague sued the company, their employment or severance agreement might be in court records. Many courts have their records online in a searchable form. Some may still require you to go to the courthouse. Your co-worker's salary might be disclosed in answers to interrogatories or other documents in the court file. If you're really lucky, the court records might also disclose salaries of other employees.

  8. File with the EEOC. If you're being subjected to other types of sex discrimination and just aren't sure about the pay, file with the EEOC on the other discrimination and say you suspect that you're also being paid differently. The EEOC will likely ask the company for those pay records as part of its investigation. Unfortunately, you won't get access to your file until the end of the investigation, but at least you'll eventually know the truth.

While it's tough to find out what colleagues are making, it's not impossible if you're persistent and patient.

Once I think I have proof that I'm being paid unfairly, what can I do?

  1. File a formal complaint of sex discrimination with HR. Put your complaint in writing and tell them that you believe you are being paid less than similarly-situated male colleagues. Hopefully they will investigate. If they can confirm the discrimination, they may resolve the matter for you. If you file a discrimination complaint, you are (mostly) protected from retaliation if you had a good faith belief that you were a discrimination victim.

  2. File with the EEOC or your state agency. You don't have to go to HR first in a pay disparity case, before filing with the EEOC or your state agency that handles sex discrimination claims. If you fear retaliation, filing with the EEOC is absolutely protected from retaliation.

  3. Contact an employment lawyer: When in doubt, or if you want legal representation for your claim, talk to an employee-side employment lawyer in your state to find out if you have a case.

When Must Employers Pay Overtime?

Federal and state laws require most employers to pay overtime. The overtime premium is 50% of the employee's usual hourly wage. This means an employee who works overtime must be paid "time and a half" -- the employee's usual hourly wage plus the 50% overtime premium -- for every overtime hour worked. These laws contain many exceptions, so not all employees are entitled to overtime. Employees who are eligible for overtime are called "nonexempt" employees, and those who are not eligible for overtime are called "exempt" employees. What Counts as Overtime: Weekly vs. Daily Standard Federal and most state laws impose a weekly overtime standard, which means that nonexempt employees are entitled to overtime for every hour more than 40 that they work in a week, regardless of how many hours they work in a day. For example, Alex is a nonexempt employee who works 12 hours on Monday and 6 hours on Tuesday (and doesn't work any more hours in the week). He is not entitled to receive overtime under the weekly overtime standard, even though he worked more than eight hours on Monday, because he didn't work more than 40 hours that week. California and a handful of other states have a daily overtime standard, which means that nonexempt employees are entitled to overtime for every hour more than eight that they work in a day and every hour more than 40 that they work in a week. Let's take Alex from the paragraph above. In a daily overtime state, he would be entitled to overtime pay for the four extra hours he worked on Monday, even though he didn't even come close to working 40 hours in the week. Employers Who Must Pay Overtime Although the vast majority of employers must pay overtime, not all are required to. To figure out whether you must pay overtime, first determine whether you are covered by the federal Fair Labor Standards Act (FLSA), the federal wage and hour law that sets out the overtime rules. Generally, your business is covered by the FLSA if you have $500,000 or more in annual sales. Even if your business is smaller, however, you must pay overtime if your employees work in what Congress calls "interstate commerce" -- that is, they conduct business between states. This includes more than you might think, including making phone calls to or from another state, sending mail out of state, or handling goods that have come from, or will go to, another state. Even if your business is so small or local that it isn't covered by the FLSA (and this will be a pretty rare occurrence), you might be covered by your state's overtime law. Contact your state labor department for details. Which Employees Are Entitled to Overtime If your business is covered by either the FLSA or your state's overtime law, then all of your employees are entitled to overtime unless they fit into an exception. The following workers are "exempt" from the federal overtime law (meaning that they fit into an exception and are therefore not entitled to overtime): executive, administrative, and professional employees who are paid on a salary basis (see below) independent contractors volunteer workers outside salespeople (that is, employees who customarily and regularly work away from the employer's business, selling or taking orders to sell goods and services) certain computer specialists (such as systems analysts, programmers, and software engineers) who earn at least $27.63 per hour employees of seasonal amusement or recreational businesses, such as ski resorts or county fairs employees of organized camps or religious or nonprofit educational conference centers that operate for fewer than seven months a year employees of certain small newspapers newspaper deliverers workers engaged in fishing operations seamen employees who work on small farms certain switchboard operators criminal investigators, and casual domestic baby sitters and people who provide companionship to those who are unable to care for themselves (this exception does not apply to those who provide nursing care or to personal and home care aides who perform a variety of domestic services). Administrative, Executive, and Professional Employees Probably the most common -- and confusing -- exceptions to the overtime laws are for so-called "white collar" workers. Employees whom the law defines as "administrative, executive, or professional" need not be paid overtime. To be considered exempt, administrative, executive, or professional employees must be paid on a salary basis and must spend most of their time performing job duties that require the use of discretion and independent judgment. Salary Basis An employee who is paid on a salary basis must earn at least $455 per week, and must receive the same salary every week, regardless of how many hours the employee works or the quantity or quality of the work the employee does. There are a few circumstances in which an employer may pay a salaried worker less than his or her full salary for a week -- for example, if the employee takes a couple of days of paid sick or vacation leave, or takes time off under the Family and Medical Leave Act. Generally, however, if an employer docks an employee's pay (for taking a personal day or not meeting a sales target, for example), then the employee is not paid on a salary basis and is entitled to overtime. For more information on how pay docking affects an employer's obligation to pay overtime, see Nolo's article Legal Limits on Pay Docking and Unpaid Suspensions. Job Duties Not every employee who earns $455 or more per week is exempt from overtime. The employee must also be performing certain types of work -- generally, work that requires an advanced degree, is managerial or supervisory in nature, or requires the employee to make relatively high-level business decisions. Here are the basic requirements for the administrative, executive, and professional exemptions. An administrative employee must perform office or other non-manual work that is directly related to the management or business operations of the employer or its customers, and must exercise discretion and independent judgment regarding significant issues. An executive employee's primary duty must be managing the employer's enterprise or a recognized division or department of that enterprise; the employee must regularly supervise at least two full-time employees (or the equivalent) and must have the authority to hire and fire or have significant input into hiring and firing decisions. A professional employee's primary duty must either be performing work that requires advanced knowledge in the field of science or learning, of a type that is usually attained through an advanced course of study; or performing work that requires invention, imagination, originality, or talent in a recognized creative or artistic field. To learn more about these exemptions, visit the Department of Labor's website at

10 Tricks Employers Use To Cheat Workers Out Of Overtime

Most employees are entitled to be paid overtime for any hours worked over 40 in one week (and no, your employer can't average two or more weeks together). Unless you work for a tiny and purely local employer, or fall within a specific exemption, your employer is legally required to pay you time and a half for all overtime worked. But some employers, in an attempt to cut costs, are using tricks to avoid paying overtime. As reported by AOL Jobs and USA Today, the number of lawsuits filed by employees alleging that they were owed overtime pay is skyrocketing; there was a 32 percent increase last year, compared to 2008.

As an employment attorney, I've seen lots of maneuvers, but below are the 10 most common tactics that I've seen employers use to cheat workers out of their hard-earned overtime pay:

  1. Tell the worker that because he earns a salary, he isn't entitled to overtime. Many employers and most employees think that, once you're paid on a salary basis, you lose your right to overtime pay. That isn't the case. Unless you make at least $455 per week (there's a bill pending in Congress to try to raise this amount), you don't fall within any salary exemption. Plus, you still must fit within one of the exemptions to the Fair Labor Standards Act or you must be paid for all your time.

  2. Improperly classify the worker as an 'independent contractor.' If the company sets your hours, the law would probably consider you an employee. If you signed an independent contractor agreement and think you're misclassified, you are losing more than your overtime. You are also paying your company's share of employment taxes.

  3. Require workers to log in hours 'off the clock.' I've heard of employers that force employees to clock out for lunch, even if they work through lunch. Or they demand employees clock out and stay late. Maybe there's no time clock at all, and you're asked to sign a timesheet every week saying you worked 8 hours a day. This is your employer trying to put the lie on you. That way, if you do sue and you signed a paper or clocked in and out, they'll claim you are lying about your overtime.

  4. Combine non-exempt duties. Even if you have an exempt job, some employers are trying to save money by cutting non-exempt jobs and giving those duties to exempt employees. Double the work, same pay. If your managerial job also requires you to be the receptionist, you are probably entitled to overtime pay for your non-exempt duties.

  5. Expect the employees to be on-call. If you have to jump anytime there's an emergency and if you can't use your "free" time freely, you may be entitled to be paid for your time on-call. If the company says you have to stay within a certain mileage from the office, that you must return calls within a short time (such that you can't even go out and cut the grass or go to the movies if you want), or if the calls come in every 10 minutes, so that doing anything else is impossible, you are probably entitled to be paid overtime for your on-call time.

  6. Give off-hours duties. This is how it works: Employers require employees to arrive at the workplace several minutes before clocking in to put on a uniform or do other prep work, have before-hours or after-hours meetings, mandatory trainings, and other duties that are off the clock. If you're in this situation, you are probably entitled to be paid for any time you are mandated to be present at work.

Truly voluntary training, such as going to an outside company to get a certification you want to increase your chances of promotion, even if the company pays for it, is probably not work time such that you're entitled to be paid. If you're told that failure to attend the training will result in some adverse consequences, it isn't voluntary.

  1. Expect the workers to do work from home. If your job requires you to answer emails, respond to texts, or otherwise work from home after you leave, you are probably entitled to be paid for those hours. No, you can't charge for time you took a shower, ate dinner, or watched "The Office," no matter how much it reminds you of your own office, but you can charge for the time you actually spent working. A recent survey by Good Technology found that most Americans do an extra 30 hours of work per month from home.

  2. Tell workers to wait before clocking in. If your employer requires you to come in, only to make you wait until they need you before you're allowed to clock in, you're probably entitled to be paid for your waiting time. If you aren't told you can leave the premises, you can't do anything else like go shopping or eat lunch, and you must be available when the work comes in, you are working. If you work in the copy room and play online checkers while waiting for the next job to come in, you're probably entitled to be paid for that time.

  3. Require workers to volunteer. Many companies are involved in civic and charitable work, and that's great. They may ask for volunteers to help with, say building houses for Habitat for Humanity. If you can volunteer or not, without consequences, then you're working for free. But if your employer requires you to participate, supervises your work, and if you will suffer consequences for not "volunteering," you are likely required to be paid.

  4. Pretends not to know workers are toiling through lunch. Your employer may look the other way if you work through lunch or after you clock out. That doesn't excuse the employer from paying overtime. They may claim they didn't know, but if the company suffers or permits you to work extra hours, you must be paid. That's why many companies have written policies that require discipline, even termination, for failing to report all hours worked.

So you think you aren't being paid for your overtime. Steps to take:

  1. Write it down. Keep track of all your hours worked, even if your employer requires you to submit less than all your hours. Write down what you did, especially if it was during lunch or at home. If you have a diary or calendar, write it in there. Don't keep your records at work, because if you leave them in a drawer or on your work computer and are fired, they can be conveniently lost. Keep them in your pocket, purse or briefcase, and take them home when you leave. The Department of Labor has a handy smartphone app you can use to keep track (but if your smartphone belongs to the company, it's best to use something you own instead to keep track).

  2. Report misclassification. If you are misclassified as an independent contractor, the IRS will do the work for you. There's a form called the SS-8 that you can fill out to have them determine whether or not you're misclassified.

  3. Ask the Department of Labor. The Department of Labor is available by phone and email to answer questions and take complaints of overtime violations.

  4. Contact a lawyer. The consequences of violating the overtime requirements are that your employer might have to pay double the amount owed you, plus attorney's fees and costs. A lawsuit could include all your coworkers who were underpaid. When in doubt, contact an employee-side employment attorney in your state to find out your rights.

Beware of Future Consequences! While your current employer can't retaliate against you for bringing overtime claims against them, potential employers might be allowed to retaliate. At least one federal court has ruled that the anti-retaliation provisions of the Fair Labor Standards Act do not apply to prospective employees. If you're a named plaintiff in an overtime suit, or if you answer honestly that you participated in a class action against your employer for overtime, you may lose future job opportunities.

If you can resolve your overtime claim without filing a suit, such as having a lawyer or the Department of Labor reach out to your employer to resolve the matter, you might avoid this tricky retaliation loophole.

Cristian Fernandez, 13-Year-Old Florida Boy Charged With Brother's Murder, Had Life 'Punctuated By Violence'

JACKSONVILLE, Fla. -- A decade before he was charged with murder, a 2-year-old Cristian Fernandez was found naked and dirty, wandering a South Florida street. The grandmother taking care of him had holed up with cocaine in a messy motel room, while his 14-year-old mother was nowhere to be found.

His life had been punctuated with violence since he was conceived, an act that resulted in a sexual assault conviction against his father. Fernandez' life got worse from there: He was sexually assaulted by a cousin and beaten by his stepfather, who committed suicide before police investigating the beating arrived.

The boy learned to squelch his feelings, once telling a counselor: "You got to suck up feelings and get over it."

Now 13, Fernandez is accused of two heinous crimes himself: first-degree murder in the 2011 beating death of his 2-year-old half-brother and the sexual abuse of his 5-year-old half-brother. He's been charged as an adult and is the youngest inmate awaiting trial in Duval County.

If convicted of first-degree murder, Fernandez could face a life sentence – a possibility that has stirred strong emotions among those for and against such strict punishment. The case is one of the most complex and difficult in Florida's courts, and it could change how first-degree murder charges involving juvenile defendants are handled statewide.

The U.S. Supreme Court ruled this summer that it is unconstitutional for juvenile offenders to get mandatory life sentences without parole. Because of that, Fernandez' defense attorneys said they can't advise their client what kind of sentence he could face. Another complication involves whether Fernandez understood his rights during police interrogations.

Richard Kuritz, a former Jacksonville prosecutor who is now a defense attorney, said everyone agrees that Fernandez should face consequences if convicted – but what should they be?

"What would be a fair disposition? I don't suspect this case is going to end anytime soon," said Kuritz, who has been following the case closely.

Supporters of local State Attorney Angela Corey say she's doing the right thing by trying Fernandez as an adult: holding a criminal accountable to the full extent of the law. But others, like Carol Torres, say Fernandez should be tried in juvenile court and needs help, not life in prison.

"He should be rehabilitated and have a second chance at life," said Torres, 51. Her grandson attended school with Fernandez and she has created a Facebook page to support him.

In other states, children accused of violent crimes are often charged or convicted as juveniles. In 2011, a Colorado boy pleaded guilty to killing his two parents when he was 12; he was given a seven-year sentence in a juvenile facility and three years parole. A Pennsylvania boy accused of killing his father's pregnant fiancée and her unborn child when he was 11 was sent this year to an undisclosed juvenile facility where he could remain in state custody until his 21st birthday.

The Justice Department said that 29 children under age 14 committed homicides around the country in 2010, the most recent year for which the statistics were available

Fernandez' judge – and jury, if the case gets that far – will have to decide whether to consider the boy's past when determining his future.

Fernandez was born in Miami in 1999 to Biannela Susana, who was 12. The 25-year-old father received 10 years' probation for sexually assaulting her.

Two years later, both mother and son went to foster care after authorities in South Florida found the toddler, filthy and naked, walking in the street at 4 a.m. near the motel where his grandmother did drugs.

In 2007, when Fernandez was 8, the Department of Children and Families investigated a report that he was sexually molested by an older cousin. Officials said other troubling incidents were reported, including claims that he he killed a kitten, simulated sex with classmates and masturbated at school.

In October 2010, Fernandez and his mother were living in Hialeah, a Miami suburb, with his mother's new husband. Fernandez suffered an eye injury so bad that school officials sent him to the hospital where he was examined for retinal damage. Fernandez told officers that his stepfather had punched him. When officers went to the family's apartment, they found the stepfather dead from a self-inflicted gunshot wound.

Soon, the family moved north to Jacksonville and Fernandez enrolled in middle school, getting straight A's. They settled in a bland, beige public housing complex.

A few months later on March 14, 2011, deputies were called to the apartment: Fernandez' baby brother, 2-year-old David, had died at a local hospital. The medical examiner determined that the toddler had a fractured skull, bruising to his left eye and a bleeding brain.

Susana, then 25, admitted to investigators that she had left Fernandez, David and her other children home alone. When she returned, she said she found David unconscious. She waited eight-and-a-half hours before taking him to the hospital and searched "unconsciousness" online and texted friends during that time.

Susana also revealed that two weeks before David's death, Fernandez had broken the toddler's leg while wrestling.

Susana was charged with aggravated manslaughter; the medical examiner said David might have survived if she had taken him to the hospital sooner for the head injury. She pleaded guilty in March and could get 30 years.

Fernandez, who had first been questioned as a witness, was soon charged with first-degree murder. The other felony charge was filed after his 5-year-old half-brother told a psychiatrist that Fernandez had sexually assaulted him.

The boy has talked openly to investigators and therapists about his life; the gritty details are captured in various court documents.

"Christian denied any plans or intent to kill his brother," one doctor wrote. "He seemed rather defensive about discussing what triggered his anger. He talked about having a `flashback' of the abuse by his stepfather as the motive for this offense ... Christian was rather detached emotionally while discussing the incident."

Based on psychological evaluations, prosecutors say that Fernandez poses a significant risk of violence. That's why he is being detained pre-trial and why they charged him with two first-degree felonies.

Yet difficult questions remain for Judge Mallory Cooper: Should a child so young spend his life in prison? Does Fernandez understand his crimes, and can he comprehend the complex legal issues surrounding his case?

In August, Cooper ruled that police interrogations of Fernandez in the murder and sexual assault cases are not admissible, because the boy couldn't knowledgeably waive his rights to remain silent and consult an attorney. Prosecutors are appealing.

The defense wants the charges dismissed, saying the U.S. Supreme Court ruling banning sentences of life without parole for juveniles makes it impossible for them to advise Fernandez since the Florida Legislature has not changed state law. Prosecutors say they never said they would seek a mandatory life sentence – they say the old Florida law that called for a 25-year-to-life sentence could apply.

Mitch Stone, a Jacksonville defense attorney who is familiar with the case, said Corey and her prosecutors are in a tough position.

"I know they're good people and good lawyers," he said. "But if a resolution short of trial doesn't occur, this case is on a collision course to sending Cristian Fernandez to life in prison. That's why this is one of those very difficult cases. It's hard to understand what the appropriate measure is."