Answers Posted By David M. Lira

Answer to Incentive Cuts

Is It a Contract?

Most people start working for an employer with little more than an understanding of a start date. There is little, if anything, in writing.

Nonetheless, the employment relationship is governed by a set of rules. Those rules are set up by the operation of law. In New York State, the basic rule is the employment at will doctrine, a rule which generally does not favor the employee.

An employer and employee can depart from the employment at will doctrine by entering into a contract. A contract is mutual, and requires each party to express an intent to be bound.

A contract in New York need not be in writing, but, believe me, it is infinitely easier to prove the terms of a contract if it is in writing.

But even if it is in writing, that does not mean it cannot be changed. You see, one thing that a good contract does is define how long it will be effective, and how it can be changed.

I've said all this because your employer might be bound to pay your incentive, if you and the employer had a contract requiring the payment of the incentive. However, I don't know whether even the documentation that you refer to rises to the level of a contract. Even if we assume that the documentation constitutes a contract, I don't know whether the employer had an out. That is, the contract could still have given the employer the right to change the terms and conditions of your employment unilaterally. So, your employer may well have the ability to cut your incentive.

If you want a definitive answer, you need to set up a consultation with a qualified attorney to discuss your particular situation in detail.

posted Jun 3, 2009 3:29 PM [EST]

Answer to is it illegal to get fired for going on vacation?

FIred for Going on Vacation

In New York State, you get no special protection for taking a vacation. You can be fired while on vacation, or because you took a vacation, even a vacation that has been approved by the employer. It is all part of the employment at will docttrine: You can be fired at anytime for any reason, even for no reason at all.

posted Apr 20, 2009 2:19 PM [EST]

Answer to Employer's False claims of

Right to review your personnel file

In New York State, employees have NO right to review their personnel files.

posted Apr 3, 2009 3:07 PM [EST]

Answer to i can't even buy groceries right now-must less pay for a consultation

Retroactive Pay Cuts are Improper

Here's another reason ti unionize: Because of the employment at will doctrine, your employer can cut your pay at anytime, for any reason, or no reason at all. However, that does not apply retroactively. If you already put in the time, you are entitled to get paid at the rate you reasonably thought you had agreed to. The employer cannot cut your pay after you had put in the time.

posted Mar 30, 2009 5:12 PM [EST]

Answer to severance/bankruptcy

You have to look at the agreement

I'm no bankruptcy attorney, but I believe that, unless you are listed as a creditor, you claim will not be discharged in bankruptcy. If you have received a notice from the bankruptcy court, consult a bankruptcy attorney.

If we leave aside the bankruptcy issue, whether you are still entilted to severance depends on what the severance agreement says. You really need to have an attorney read the agreement in connection with a consultation.

posted Mar 30, 2009 4:43 PM [EST]

Answer to Demoted with 15% paycut & no responsibilities reduced

Demotion for No Reason or False Reasons

This answer makes a big assumption: You have no written agreement with the employer concerning your compensation.

With this assumption, then the rule under NYS law that would apply is the Employment at Law Doctrine. This rule can be stated in many ways, but here might be stated as follows: an employer can demote you for any reason or no reason at all. An employer can demote you even for a reason which is incorrect or even patently false.

In other words, in your case, there really wasn't any reason for your employer making up a justification of poor performance. It wasn't needed under the employment at will doctrine.

Employers often feel a need to make up a justification because other issues might be at play. For example, let's say that the real reason for the demotion was gender discrimination. In this case, you might be able to sue under federal and state anti-discrimination laws. One way for the employer to avoid liability under these laws is to come up with a legitimate non-discriminatory reason for an adverse employment action. A claim of "poor performance" would certainly be considered a legitimate non-discriminatory reaon for a demotion, but the employee would still be able to challenge the claimed reason, for example showing that the claimed reason was false.

posted Mar 23, 2009 2:48 PM [EST]

Answer to FMLA CERTIFICATION AND ADA VIOLATION

FMLA and the ADA

I find the connection between the FMLA and the ADA interesting, but I doubt that many employment attorneys have full knowledge about how these two laws interact because they are both relatively new. (FMLA was enacted only in about 1993 -- for the law that is pretty new -- and, even though the ADA was originally enacted in about 1991, because it was interpreted in such a narrow way by courts until recent -- 2009 -- amendments to the law, in effect, the ADA is brand new.) I have had a couple of cases where the connection between the FMLA and the ADA, as well and State and New York City discrimination provisions, created many interesting issues.

But note, you can have a violation of the FMLA without a violation of the ADA, and vice versa. At times, a particular employer action can violate both the ADA and FMLA at the same time.

The ADA, as well as the NY State Human Rights Law and the NYC Human Rights Act, protects persons with disabilities from discriminatory conduct. This is different than the FMLA, which provides for limited unpaid leave for persons with serious health conditions. A serious health condition is not necessarily a disability.

There is another interesting connection between the ADA and FMLA. (In this situation, there is no connection between the FMLA and the NYS Human Rights Law. I'm not sure about the connection with the NYC law.) The ADA provides protections for associational discrimination. This comes up, for example, when you have no disability but you are associated with a person with a disability. A good example is when an employee has a child with a chronic, serious condition. An employer might want to get rid of an employee with a sick child because the employer might be concerned with future attendence and the impact on health insurance costs. However, terminating the employee because the employee has a sick child might violate the ADA.

Now, the sick child's condition might be considered a serious health condition under the FMLA, permitting the employee to take FMLA leave, perhaps on an intermittent basis, to take care of the child. Now, terminating the employee for taking leave to take care of the child might violate both the ADA and the FMLA. In addition, the employer has to be careful that the employee gets FMLA leave on the same terms and conditions as other employees taking FMLA leave. If not, the employer might violate the ADA.

It gets a bit complicated.

How often an employer is entitled to medical documentation for FMLA leave will depend on a number of different things, but probably mostly on how the leave is taken. The problem with the term "intermittent" is that it can mean many things. So, the more that intermittent leave is taken on an irregular and unanticipated basis, the more likely the employer might be entitled to documentation each time FMLA leave is taken. If the intermittent leave is taken on a regular, anticipated basis, for example, I had a case where the employee knew she needed one hour of leave for each day of work, the employer is not likely to be entitled to documentation on each absence.

I'd say in your case, if you want a more definitive answer, you need to consult with an attorney.

posted Mar 17, 2009 4:36 PM [EST]

Answer to Wrongfully terminated, discrimination

It all changes after you're injured

Your query raises a basic fact pattern that I've seen over and over again. A long time employee gets injured on the job. Suddenly, that employee cannot do anything right, and, in short order, gets fired.

This fact pattern might -- and I repeat "might -- raise to claims. One claim is under the anti-discrimination provision of the Workers' Compensation Law. However, your rights under this provision are very narrow, and cases under this provision are hard to prove. Under this provision, you are not entitled to protection because of your injury. You are entitled to protection for discrimination because you filed a claim under the Workers' Compensation Law.

The other possible claim is under the laws protecting you from discrimination because of a disablity you may have. The federal law, the Americans with Disabilities Act, has recently been changed to make the definition of disability broader. However, the state law definition continues to be different than the federal law. Whether you are considered to be covered by these laws depends on the nature of your disability.

Under either claim, you should contact an attorney to have the particular facts of your case thoroughly reviewed.

posted Mar 9, 2009 2:38 PM [EST]

Answer to Notified of layoff while out on maternity leave

Laid Off While on FMLA Leave

The Family and Medical Leave Act ("FMLA") was designed to give employees unpaid leave of up to 12 weeks in order to deal with an illness or for the birth or adoption of a child. While you are out on FMLA leave, the employer is supposed to hold your position open, so that you can return to it.

However, FMLA is not a job protection act. You don't get any extra rights under FMLA. If you would have been fired if you had not taken FMLA leave, you can be fired even while on FMLA leave.

The current ecomonic environment offers a lot of examples. If the employer closes your office, firing everyone, your employer can terminate you, even though you are on FMLA leave.

posted Mar 3, 2009 3:12 PM [EST]

Answer to Overtime payback requested by employer

Employer Claims Overpayment

An employer cannot make the payment of wages contingent on its receipt of revenues from a customer. So, even if a later audit shows that a customer overpaid for somthing, that has no effect on the wages paid to employees. This, of course, assumes that employees properly reported their hours.

Sometimes, an employer might overpay an employee by mistake. The employee is not entitled to keep the overpayment. However, unless the employee voluntarily consent to it, the employer is not free to simply deduct the overpayment from subsequent paychecks. If an employee refuses to pay back the overpayment, the employer would be free to terminate the employee and sue the employee for the amount overpaid.

posted Feb 26, 2009 11:49 AM [EST]

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