Answers Posted By David M. Lira

Answer to Overtime Exemption Qualifications

Overtime Regulations in New York

Although New York State has regulations concerning the payment of overtime, in New York State, employees would look primarily to federal law, and, specifically, the Fair Labor Standards Act ("FLSA") to determine eligibility for overtime. FLSA applies in all 50 states.

Generally, under FLSA, employees are entitled to time-and-a-half for hours worked beyond 40 hours in a work week. You loss this right only if you fall into an exemption.

There are a number of exemptions under FLSA covering a wide range of employees, from domestics to certain types of employees working in the computer or information technology area. The three biggest exemptions are for executive, administrative and professional employees. Administrative employees are generally employees who work closely with executive employees, for example, the secretary to a high level executive.

posted Feb 16, 2005 08:21 AM [EST]

Answer to My employer refuses to accept claims for unpaid wages after 120 days.... when it is truly owed.

Statute of Limitations on Unpaid Wage Claims

You have a much as 6 years from the date wages became due to start a lawsuit seeking the payment of those wages. Any employer policy requiring that a claim be made sooner is probably not enforceable under New Yoork Law.

posted Feb 9, 2005 08:24 AM [EST]

Answer to Calculating Annual Salaries

Frequency of Wage Payments

Divide 365 days in a year by the number of days in a week (7). The result is greater than 52 weeks. In other words, every once in a while there will be 27 check disbursements by an employer with a bi-weekly pay period. It's math, not law.

New York State law requires employers to pay employees at least twice per month (sales personnel being a major exception). Beyond that, there is no law how the pay of an employee is disbursed.

posted Feb 8, 2005 5:20 PM [EST]

Answer to Statue of Limitations on Unlawful Termination

Unlawful Termination Claims

There is not such thing as an "Unlawful" or "Wrongful" Termination claim under New York State or Federal Law.

The statute of limitations on claims in employment cases varies depending on the nature of the particular claim from as little as 30 days on discrimination claims by federal employees to as much as six years on contract claims and claims under New York State wage and hour laws.

posted Feb 8, 2005 07:20 AM [EST]

Answer to unfair for for my employer to end my employment and expect me to be committed to future employment

Employment Contracts

Whether an employment contract carries any lasting consequences for the employee depends, primarily, on the wording of the contract, and, to a lesser degree, the circumstances of the parties, the job and the formation of the contract. An attorney cannot give any kind of opinion concerning an employment contract without seeing the contract, and gathering other background information.

In the U.S., a person generally cannot be forced to work for anyone because of the 13th Amendment to the U.S. Constitution, which ban slavery. However, that does not mean that there may not be other consequences in refusing to accent a job.

posted Feb 7, 2005 08:45 AM [EST]

Answer to Contract Violations - Discrimination

Statute of Limitations on Sex Discrimination Cases

This is actually a very complicated question because there are multiple statutes of limitation.

Title VII is the federal law prohibiting discrimination on the basis of gender. It's general statute of limitations is 180 days. But, if you live in a state like New York, which has an agency dealing with discrimination claims, the statute of limitations is 300 days. But there is a quirk here, and some judges have said that the charge needs to be filed with the EEOC within 240 days.

It gets worse. If you go to the EEOC, and the EEOC issues a no-probable cause determination, there is a second statute of limitations that you have to deal with. This statute of limitations is 90 days from the date you receive what is called a notice of right to sue.

You also have independent claims under the New York State Human Rights Law. Under this law, the statue of limitations is 1 year if you go to the New York State Division of Human Rights or a local commission on human rights. If you decide you want to go to court, you have 3 years to bring a claim.

posted Jan 14, 2005 3:33 PM [EST]

Answer to WRONGFULLY TERMINATED

Access E-mail and the Internet at Work

When you are home, using your own internet service provider and your own e-mail account, you have certain, though fairly limited, rights of privacy. So, for example, your employer is not allowed to access your private e-mail account.

Once you use the employer's computer (including a laptop that you might be using at home on off hours), or use the employer's internet service provider or e-mail system, all bets are off. The employer has every right to know what you are doing on its computers or computer systems.

A lot of employers have handbooks which tell employees that they should not be snooping on other employees by accessing the other employees' computer records. That only restricts what employees do to one another. It does not restrict the employer's ability to monitors usage of its computers and computer systems. In any case, at least in New York State, employer handbooks rarely give employees any enforceable rights, even when the handbooks say employees have certain rights.

posted Jan 11, 2005 09:09 AM [EST]

Answer to passed written but cannot pass proficiency exam but working in job title

Civil Service Exams

In New York State, there is a definite preference in the law for a civil service employment force selected on the basis of a competitve exam. Certain job titles, for example attorneys, are deemed not suitable for selection by competitive examination, and these titles as "exempted" from the competitive examination requirement, but there is an assumption with exempt titles that there are other ways to determine a candidate's qualifications for a job.

As far as I know, the Civil Service Law does not provide for a waiver of all or part of examination requirements for competitive titles. However, other laws, like the New York State Human Rights Law, or the American with Disabilities Act, for example, might require some degree of flexibility at least for candidates with disabilities.

Civil service employers try to get around competitive examination requirements, usually for political reasons, by using "provisional" positions. However, provisional positions are suppose to be temporary positions. (But I have heard of a few people holding provisional positions so long, but illegally, that they retired with full civil service pensions.) Technically, one angry citizen would be able to force someone who has held a provisional position out if that person has held the position longer than permitted by law.

posted Jan 7, 2005 07:31 AM [EST]

Answer to Employer refusing to pay earned wages

Withholding Pay

Except when required by court order, or when an employee voluntarily agrees to it, an employer may NOT withhold any part employee's pay for any reason.

The law recognizes that it takes a little time for an employer to prepare a payroll. Nonetheless, the law requires that wages be pay fairly promptly, in New York State, normally with in two weeks of the end of the pay period.

posted Jan 3, 2005 08:46 AM [EST]

Answer to DRIVER HOURS

It's Not Always an Employment Regulation

Because I have done some work with delivery drivers, I know a little about this, but it isn't really an issue that an employment attorney would normally handle. As far as I know, a driver has no legal ability to contest a violation of the applicable regulations, although a driver could probably alert the U.S. Department of Transportation of a violation of the regulations.

Under certain regulations of the U.S. Department of Transportation, certain types of drivers, in interstate commerce, may driver only up to a certain maximum number of hours. I'm not sure whether the number of hours is 8 or 9 hours. I also don't know how hours are counted. The regulations may count only the hours spent behind the wheel of the employer's truck, but I can't tell you for sure.

I suggest you contact a transportation attorney.

posted Dec 27, 2004 5:06 PM [EST]