Answers Posted By John Upton

Answer to Can I sue a former employer for giving a bad recommendation?

If the prior employer intentionally mis-states a fact for the purpose of injuring the former employee, there likely could be a successful action. In my view a negative opinion would not be actionable.

I'd advise hiring an attorney to request the offending letter from the sender and the recipient. If the neither employer agrees to give a copy, an action might have to be started to get it.

On the other hand, it is very likely that to avoid a lawsuit, the former employer will agree not to use the letter, and will be amenable to working out a letter or information package agreeable to them and the employee.

posted Feb 7, 2012 3:12 PM [EST]

Answer to Is there anything you can do after a company offers you a position and then calls back to reneg?

Unless you have a binding employment contract, which 99% of the time has to be a written contract for a set period of time, the employer can terminate you at any time for any reason as long as it is not for an illegal reason. In this instance, if the only evidence is that two supervisors wanted someone else, that is not proof of an illegal reason.

So, without more evidence about the reason for the retraction of the offer, there's not much that can be done.

posted Nov 10, 2010 3:55 PM [EST]

Answer to I was falsely accussed of Sexual Harassment

I would only add to ms. Valentine's comment that it might be useful for an attorney to write the employer to explain the several ways in which your statements were not sexual harassment and request that the reference to that in your employment file be removed. Unfortunately the person to do so can't really be me as I am tra eking for the next three weeks. What do you say Ms. Valentine?

John Upton

posted Jul 12, 2010 3:03 PM [EST]

Answer to Former employer making disparaging remarks and trying to impose non-compete after the fact

I agree with Ms. Valentine that whether or not the "confidentiality" provision bars you from competing depends on whether there is some interpretation of the language that you signed that is consistent with that idea. Hopefully, it isn't.

Defamation is the knowing and false statement of fact about somebody which causes damages. Therefore, if the statements that were made were statements about the quality of your performance, or other "opinion" statements, they were probably not legally defamatory. If, however, they were statements that you stole something, did some act which they know you did not do, or some other reference to a specific act, then they might be defamatory.

I agree that the issuance of a letter to the employer threatening legal action should be done. Whether or not the statements were actually defamatory, such a letter would presumably discourage continued statements.

John Upton, Esquire
212-233-9300 begin_of_the_skype_highlighting              212-233-9300      end_of_the_skype_highlighting

posted Jun 10, 2010 08:38 AM [EST]

Answer to Unfair treatment and layoff

Stated another way, unless you have a written contract for a set period of time, you can be terminated for any reason or no reason, as long as it's not an illegal reason such as for union activity, certain types of whistleblowing, discrimination or retaliation for complaining about discrimination. In your case, it appears that the only thing that could possibly apply is discrimination by you have to prove that the reason for your termination is that rather than the fact that you had a relationship. Unfortunately for you, a court would not consider the company policy a defense to a termination of an at will employee.

John Upton

posted Sep 2, 2009 10:54 AM [EST]

Answer to Possible termination or demotion

quick response

There are these two provisions in the New York State Human Rights Law. Unfortunately, I do not believe they protect you in the situation you are in:

15. It shall be an unlawful discriminatory practice for any person,
agency, bureau, corporation or association, including the state and any
political subdivision thereof, to deny any license or employment to any
individual by reason of his or her having been convicted of one or more
criminal offenses, or by reason of a finding of a lack of "good moral
character" which is based upon his or her having been convicted of one
or more criminal offenses, when such denial is in violation of the provisions of article twenty-three-A of the correction law.

16. It shall be an unlawful discriminatory practice, unless specifically required or permitted by statute, for any person, agency, bureau, corporation or association, including the state and any political subdivision thereof, to make any inquiry about, whether in any form of application or otherwise, or to act upon adversely to the individual involved, any arrest or criminal accusation of such individual not then pending against that individual which was followed by a termination of that criminal action or proceeding in favor of such individual, as defined in subdivision two of section 160.50 of the criminal procedure law, in connection with the licensing, employment or providing of credit or insurance to such individual; provided, however, that the provisions hereof shall not apply to the licensing activities of governmental bodies in relation to the regulation of guns, firearms and other deadly weapons or in relation to an application for employment as a police officer or peace officer as those terms are defined in subdivisions thirty-three and thirty-four of section 1.20 of the
criminal procedure law.

I don't have any brilliant ideas for you but perhaps the mere assertion of some pressure on the employer would help.

John Upton

posted Oct 26, 2006 2:23 PM [EST]

Answer to was this a discrimination? was this a racial discrimination?

Sounds like it

If someone treats a person less favorably than others due to their national origin, color, race, age, religion, gender or disability, it's discrimination. If the reason your boss wanted #2 more than #1 was because he was white, it's discrimination. You have to look at all the possible reasons he wanted #2 and decide which one motivated him (i.e. maybe they were personal friends, maybe #2 went to his same college, etc.) If it only can be explained by ethnicity, it may be discrimination.

posted Jun 14, 2001 09:45 AM [EST]

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