Answers Posted By Patricia Pastor

You can certainly negotiate, if your employer is willing, before signing the separation agreement. If your employer seems less than willing, you may want to have an attorney negotiate it for you. Best of luck.

answer to Can I add a future employer reference inquire clause to a employment separation agreement posted Nov 27, 2011 10:10 PM [EST]

Your employer is well within his rights in offering you the option of a lower-paying position in lieu of discharge. New York is an "at-will" employment state. This means that your employer may discharge you from your position for any reason or no reason at all. The only exception is that you cannot be discharged for an unlawful reason. An unlawful reason would include a discharge based on your race, age, sex, disability or any other category protected by federal or state law. There are also laws prohibiting termination of an employee in retaliation for that employee's report of an employer's unlawful or discriminatory activity. Based on the information you provided above, your employer is eliminating your position for economic reasons. This is a lawful basis for your discharge.

answer to Is a 28% pay cut (or you can quit) grounds for constructive discharge? posted Nov 12, 2011 3:37 PM [EST]

Yes, an "employment loss" occurs when the employees are terminated, laid off for at least six months, or work hours are reduced more than 50% in each month of a six-month period.

Disclaimer: This response does not create an attorney/client relationship.

answer to warn posted Oct 1, 2011 4:55 PM [EST]

I am so sorry about your daughter's diagnosis. It must be incredibly difficult for you to concentrate on anything other than her.

Intermittent leave and leave to care for a sick child are allowable under the FMLA. Although your employer is within its rights in requesting medical documentation of your child's condition, you should not need to submit medical documentation for every day that you need hours off to care for your child. I would recommend that you write a memo to your employer explaining that you needed the time off in connection with providing care to your sick child. If you have already provided sufficient medical documentation of your child's illness, and the care that she requires, that should be sufficient.

answer to I took a day off after being up caring for my daugter until 2:00 am and had to be at work 4:30 am posted Aug 16, 2011 2:36 PM [EST]

It is important that you make it clear to your boss that you are uncomfortable with any physical contact or comments regarding your physical appearance. If his behavior is innocent he should not mind your expressing your feelings about this.

If your employer were to discharge you for simply notifying him that you do not feel comfortable with physical contact or inappropriate comments, the discharge could be considered unlawful retaliation.

I would recommend that you explain your feelings, letting him know it is not your intention to offend him, that you value your job and you are simply more comfortable without the touching etc. If any retaliatory action is taken against you, contact an employment lawyer.

Good luck. I hope it works out for you.

answer to what should i tell my boss? posted Aug 14, 2011 5:11 PM [EST]

To your question simply, your employer can terminate your employment if you refuse to sign a non-compete agreement that your employer is requiring its employees to sign. It would not be an unlawful termination.

Depending on the language of the agreement, you may want to consider signing it. I would recommend having it reviewed by an attorney, who can then advise you.

answer to Can I be forced to sign a non compete clause after working without one in my present job for years? posted Aug 9, 2011 8:40 PM [EST]

Yes, a layoff is generally based on economic concerns. An employer may be able to pay its employee on an "as needed" (or "per diem") basis but cannot afford to pay for the employee on a "permanent" or full-time basis. If the employee needs the income and is wiling to take whatever work he can get, this arrangement is fine. There is nothing unlawful about this practice.

Since other employees were laid off during the same period as your husband, and the employer is still actually using your husband's services, it does not appear the layoff was based on any hidden reason.

Of course, if at any time your husband believes he is being subjected to unlawful treatment by his employer, he should consult with an employment lawyer.

answer to Can an employer lay you off and call you back for partime? posted Aug 4, 2011 10:11 PM [EST]

Based on the information you have provided, it wold appear you are not subject to an agreement you did not sign. However, you should contact an attorney to review the "LLC Agreement," as well as any agreement you entered into at the time you became an employee, in order to determine your rights.
If you would like to consult you may contact me directly at 631-988-4047

answer to Am I bound by an LLC agreement that I was not shown and then refused to sign when asked to? posted Jul 1, 2011 01:13 AM [EST]

Your post does not contain sufficient information to determine whether you have a valid cause of action for wrongful termination based on age or disability. Questions that require an answer include the following: Has your employer retained management employees in your age bracket? What was the reason your employer offered for terminating your employment? Was it due to economic issues? Has the employer lost business?

In order to prove age or disability discrimination, a plaintiff must show some evidence that the discharge was directly related to your protected category (age, disability).

You should contact an employment lawyer for a consultation.

answer to Laid off while others in same position were not posted Mar 16, 2011 9:47 PM [EST]

To establish disparate treatment or discrimination, the "external candidates" would need to show that they were treated differently based on a category protected under federal or state law.

In other words, it will not be sufficient to allege that the employer discriminated against external candidates by applying a different standard. Rather, the external candidates would need to show that this disparate treatment, i.e., the different minimum qualification required, was based on the sex, race, national origin, age or disability of those candidates, or on some other protected status.

Alternatively, the external candidates would need to establish that the different minimum qualification standard had a disparate impact on those candidates falling within a protected category of candidates.

It is unlikely that such a case can be made as there is clearly a reasonable non-discriminatory basis for preferring to hire from within.

*This opinion is based on the assumption that the inquiry is made by a private employer. Similar circumstances in public employment may be affected by additional factors, including government regulations.

answer to Is it legal to lower the required min quals of jobs for employees vs ext cands posted Nov 19, 2010 5:27 PM [EST]