Answers Posted By David M. Lira

Answer to Eployment contract terminated early by employer

Contract for Definite Term

It depends on what your contract says. If your contract has a provision saying, for example, "You will be employed by us for X years," or "Your term of employment will be from x to y," then you might, depending on what the rest of the contract says, have a contract for a definite term. In that case, you might be able fo successfully sue for the remainder of the contract.

posted Feb 9, 2009 11:46 AM [EST]

Answer to NYC Non-Compete Agreements

Respond to the Lawsuit

There is plenty of caelaw out there on non-compete agreements in employment. One problem is that the caselaw may not make a whole lot of sense to you unless you have an attorney helping you understand the many nuances.

My best advice if you are sued on a non-compete agreement is DON'T IGNORE IT. The surest and quickest way to have the non-compete agreement actually enforced against you is to fail to respond to the lawsuit. This is a shame because employees, actually former employees, usually win these lawsuits if they do respond.

How do you respond? Well, if you don't know the answer to this question, you shouldn't be doing it alone. Get an attorney -- IMMEDIATELY!!!!! Speed may be of the essence because employers often seek preliminary injunctions -- a temporary order essentially making you unemployed -- in these cases.

There were a couple of other things in your query. Apparently, employers are getting new employees to sign non-compete agreements by saying, "We probably won't enforce it." But answer me this: Why would an employer go through all the effort of preparing a non-compete agreement if it has no intention of enforcing it. It would seem to be a lot cheaper for the employer to not even bother with a non-compete agreement. So, if you are fed this line that they won't enforce it, you are being lied to.

As I often tell people who come in to see me on non-competes, if you sign a non-compete agreement, you are buying yourself a lawsuit, and one which is fairly expensive despite the fact that employees usually win. So, if you signed one and are now being sued, it is unfortunately now time for you to pay up for the mistake.

posted Jan 8, 2009 09:32 AM [EST]

Answer to Retaliation and pregnancy discrimination, all-in-one!

Pretty Typical

Your story is both pretty typical, and unusual.

It is unusual because, initially, your notification to HR had nothing to do with you. Even if that never changed, you'd still be protected under the law for the retaliation that followed.

The retaliatory conduct follows a typical pattern. An employee complains. The employer's HR department makes a big deal of "investigating" the complaint. Employer's seem to have this unjustified idea that going through the motions of performing an investigation will somehow shield them from suit not only on the underlying complaint but also the retaliation. The investigation will invariably in a find of no violation. After the investigation is over, the employee, who not uncommonly had good reviews before, suddenly becomes a performance problem. Warnings are issue. Maybe "performance improvement plans" are issue. Again, it's all a matter of going through the motions, with HR orchestrating the whole thing -- that is their primary job, do CYS for the employer. The idea is to build a paper file to justify termination. Again, the employer seem to have an unjustified idea that the mere act of papering the trial is enough to defeat a subsequent retaliation claim.

You asked what to do next. THe best advise I can give you on this website is get an attorney. Each case is unique. Your needs and concerns might be very different than other people reading this same response. So, you need someone to go through other details of your situation.

I can tell you that, sometimes, employees try to stop the employer from taking the next step leading to termination of employment. On rare occasions, after much effort and expense, the employee might even succeed in getting a court order preliminary stopping an employer's efforts at terminating an employee. But that success is very rare. Generally, there is little that you can do to stop the process leading to termination.

However, having an attorney in on your case may prove very important, answering other questions that may come up, such as: Should I quit before I get fired? (Generally, you are better off getting fired, but depending on your job and your industry, as well as other things, in your particular situation the answer may be different.) Should I sign the papers that the employer may put under my nose before letting me go? (I can't even begin answering this question without knowing what the papers say. I would also need to know the details of the deal being offered, other information about how marketable you are as a employee, and other facts allowing me to assess the value of potential claims you may have against your employer.)

If your case follows the typical scenerio, that is, the employer fires you, your next step would be to file a charge with the EEOC, New York State Division of Human Rights or a local Human Rights Commission, or start a lawsuit, probably in state court. If you follow the right procedures, you can go to federal court. The aim of these filings or lawsuits is compensate you for the loses stemming from the retaliatory conduct (that is, the termination). The biggest component in this is usually loss of wages. In the right case, it might involve other components, such as compensation for emotional distress and punitive damages.

posted Dec 4, 2008 1:14 PM [EST]

Answer to Monies owed

You Need to Sue

There is no quick way to resolve your situation. You have to sue. That can easily take four years or more, but, again, your former employer might settle as soon as he gets the summons and complaint.

You'd have to sue under several different laws that address different things. Specifically, the 401K money needs to be addressed under different laws than the unpaid wages.

Fortunately, the laws you'd be using provide for attorney's fees. That is, if you win, your former employer gets to pay your attorney's fees. You should be able to get interest. Under the New York State Law governing the payment of wages, you should also be able to get liquidated damages equal to 25 percent of unpaid wages.

Before bringing a lawsuit, I would screen you for other violations, notably whether you might be owed overtime.

posted Sep 25, 2008 10:50 AM [EST]

Answer to I get salary of one week only at the end of 8 week of employment

Payment of Wages

Under New York State law, employees are entitled to payment of their wages within about 14 or 15 days of the end of the pay period in which the wages were earned. In other words, if you are waiting more than a half-month to get paid after the close of a pay period, your employer is in violation of state law.

posted Sep 17, 2008 11:09 AM [EST]

Answer to can ex-employer withold pay for minor contract changes.

Not Paid for Time Worked

Beginning about 30 years ago (put it at the time of the election of Ronald Reagan), employee rights slowly, but surely, began to erode. The result today is that employees are working longer hours for less pay and benefits, and the American workplace is a much nastier place.

Howeve, one are has managed to remain fairly stable: the payment of wages. At least in New York State, an employer has an obligation to pay wages promptly -- basically within two weeks of the end of the pay period in which the wages are earned. The law gives the employer very few excuses for withholding wages. The safest excuses are taxes, and employee consent to withhold for a specific reason.

Technically, if you are not paid your wages, you can go to the NYS Department of Labor. However, if you earn more than a minimal wage, they will tell you to go to court.

Under NY State law, you are entitled to the unpaid wages, plus 25%, plus attorneys' fees and interest.

Note that your questions concerning the employment agreement are irrelevant to all of this.

The one thing I would be concerned about is if the employer consider you an independent contractor (1099) as opposed to an employee (W-2). If you are not an employee, you are not entitled to wage protections because you are not being paid wages.

However, this distinction between independent contractor and employee is often a ruse. The employer wants all the benefits of having employees (control) while also having all the benefits of having independent contactors (lower risk in terms of pay and benefits). When they try to get both and are confronted, employers tend to lose.

Don't sign anything. Get an attorney and just sue.

posted Aug 8, 2008 11:17 AM [EST]

Answer to Retroactive change in vacation?

Modifying Vacation Benefits

New York's Employment at Will Doctrine would likely provide the answer to a situation like this. However, this answer assumes that there is no written employment contract with a definite term. It also assumes that you don't have what is known is a "justifiable reliance" claim stemming from the circumstance of your being hired. Again, answers supplied here are intended to be general answers to general situations. If you want an answer specific to your situation, you need to set up an consultation with a knowledgeable attorney.

One iteration of the Employment at Will Doctrine is that an employer can change any or all terms of employment at any time, for any reason. So, you can be hired believing that you will accrue vacation at X rate, but, unless you can show that you took the job specifically because of the prior vacation accrual policy (very unlikely), the employer can change the formula right after you are hired. Your option, your right, in this situation, is to quit.

posted May 23, 2008 11:32 AM [EST]

Answer to Do I have a case?

Litigation by Independent Contractors

Whether a particular individual has a viable case I would not know without doing a more thorough evaluation at an initial consultation. However, the employer use of independent contractor status is an important topic, because so many employers seem to be using independent contractor status to avoid costs associated with hiring employees.

I almost entirely represent employees, but I have to say that employers attempting to employ people as independent contractors rather than employees is a practice that they engage in at their peril. Although, with one important exception, there is unusually little that individual can do to remedy this abusive practice, employers risk very large liabilities if governmental agencies catch them misclassifying employees as independent contractors. Before classifying someone as an independent contractor, employers are well advised to be sure this person will genuinely be treated as an independent contractor.

Here is the danger that employer's face: One employee complains about being misclassified as an independent contractor. The agency receiving the complaint will look not just at this single individual but all individuals classified by the employer as an independent contractor. The employer could be held liable for social security contributions, and workers' compensation and unemployment insurance premiums for all misclassified employees, going back several years, potentially even beyond the hire date of the complaining employee. That can easily add up to a lot of money. And don't forget the extra penalties and interest.

There have been a few successful cases where a misclassified employee sued an employer to get benefits given to regular employees. A misclassified employee might, for example, sue for health benefits or pension benefits. However, it turns out that employers had an easy way to avoid this kind of liability. It basically involved refining the definition of the term "employee" in the documents governing the provision of benefits. So, now, the likelihood is that a misclassifed employee has little change of succeeding in a case like this.

I would generally advise misclassified employees to apply for unemployment benefits if the employer terminated the alleged independent contractor relationship, or to apply for workers' compensation if injured on the job. I would certainly expect the employer to fight the application, claiming the independent contractor status, but if the misclassified employee fights, I thing the employee has a good chance of eventually getting these benefits, and possibly getting the employer into deeper trouble.

The one potentially valuable claim that individual misclassified employees might be able to bring is an claim for unpaid wages, particularly unpaid overtime. With liquidated damages and interest, these claims quickly add up, so it is usually worthwhile checking to see if you have a claim by speaking with a qualified attorney.

One last subject should be touched upon: non-compete provisions. If you were a true independent contractor, that would normally mean, under the law, that you are free to work not just for this one employer, but for anyone else you wanted to, including competitors of the employer. If an employer makes you an independent contractor, that should logically mean that you are not bound by any previous non-compete agreements that the employer may have required you to enter into. However, this is an issue that still needs to be litigated.

posted May 20, 2008 10:41 AM [EST]

Answer to Do employers own our professional license?

Professional Licenses

The details of licensing vary depending on the profession. With some professions to have a valid license, you need to be associate with a higher level license. For example, real estate agents have to be connected to licensed real estate brokers. Agents are employed by brokers, although brokers can be employed by brokers too.

There are no associational requirements for a lot of other licenses. For example, a lawyer's license stays with the lawyer.

posted May 7, 2008 08:53 AM [EST]

Answer to Recording hours worked for a salaried employee in NY

Retail Store Managers and Overtime Compensation

Your query actually raises a lot of questions.

The first question that comes to my mind is whether you are entitled to overtime. Whether you are salaried or not is not critical. The question that is critical is whether you are exempt or non-exempt. Employees are generally considered to be non-exempt, and, thus, entitled to overtime. The employer has the burden of showing that an employee is exempt.

Exempt employees are not entitled to overtime, although an employer is free to give those employees something for the extra time they put in. That extra compensation can be pay or compensatory time, or a combination of both. Any extra pay for overtime might be time-and-half or straight-time, or something different.

If an employee is treated a exempt, the employer has to be careful that the employer treats the employee as exempt. Thus, if an employer were to dock an exempt employee for arriving a little late or leaving a little early, the employer could lose the exempt status for that employee, and become liable for overtime. In a lawsuit, the employee might be able to recover for unpaid overtime going back as long as 6 years.

Although an employer cannot dock an exempt employee for arriving later or leaving early, an employer can nonetheless keep track of an exempt employee's time. There are any number of reasons for an employer to keep track of an exempt employees overtime, including bill of customers and collecting data for evaluating productivity issues. An employer can dock exempt employees for full days they take off. So, an employer might track an exempt employee's time just to have something documenting that an exempt employee was at work.

posted Apr 14, 2008 10:54 AM [EST]