Answers Posted By Patricia Pastor

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

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.

posted Aug 16, 2011 11:36 AM [EST]

Answer to what should i tell my boss?

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.

posted Aug 14, 2011 2:11 PM [EST]

Answer to Can I be forced to sign a non compete clause after working without one in my present job for years?

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.

posted Aug 9, 2011 5:40 PM [EST]

Answer to Can an employer lay you off and call you back for partime?

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.

posted Aug 4, 2011 7:11 PM [EST]

Answer to Am I bound by an LLC agreement that I was not shown and then refused to sign when asked to?

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

posted Jun 30, 2011 10:13 PM [EST]

Answer to Laid off while others in same position were not

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.

posted Mar 16, 2011 6:47 PM [EST]

Answer to Is it legal to lower the required min quals of jobs for employees vs ext cands

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.

posted Nov 19, 2010 3:27 PM [EST]

Answer to do i have a opportunity to win my unemployment case?

The Department of Labor determines whether you are eligible for Unemployment Insurance benefits. In general, your loss of employment must be due to no fault of yours and you must be actively seeking work in order to be eligible.

You will likely be deemed ineligible for Unemployment benefits if you voluntarily quit your position or have been terminated due to a policy violation (e.g., absenteeism or misconduct).

Involuntariy loss of employment includes any layoff due to lack of work, the employer's decision to downsize or restructure, or termination due to your alleged failure to meet the job qualifications or performance standards of your employer. In these circumstances, you will be deemed eligible for benefits.

If you believe you were forced to resign due to your employer's restrucuring or other reason, an attorney may be able to help you obtain benefits.

posted Oct 29, 2010 09:37 AM [EST]

Answer to CAN I BE TERMINATED IF I REFUSE TO COOPERATE?

Yes. New York is an at-will employment state. Therefore, your employer can terminate you for any reason or no reason at all, with limited exceptions, which include unlawful discrimination or retaliation. Terminating an employee for failure to cooperate does not fall within any exception to the at-will doctrine.

Patricia M. Pastor

posted Oct 21, 2010 2:19 PM [EST]

Answer to Non complete agreement signed in China

Based solely on the information you have provided, it is highly doubtful the covenant is enforceable in New York. In New York courts, non-compete agreements are enforceable only if reasonable in scope. Factors considered in determining whether the agreement is reasonable include but are not limited to the geographic area of your new employment as compared with the area covered by your former employment, and the length of time you will be restricted.

Six months is generally considered reasonable. However, there is obviously a serious question regarding the geographic scope of this agreement. Of course, only a review of the agreement can determine whether it is enforceable.

If you would like to make an appointment to have the agreement reviewed, feel free to contact my office.

Patricia M. Pastor
Law Office of Patricia M. Pastor, PLLC
631-988-4047

posted Sep 14, 2010 7:07 PM [EST]