Answers Posted By David M. Lira

Answer to A lot of hours worked, overtime not Paid!!!!!!!

Overtime Pay is Still the Law

Although the political environment has probably caused some employers to believe that overtime regulations will soon go by way of the doodoo bird, the law still is that employees with certain exceptions must be compensated at a rate one-and-one-half times the employee's regular rate for hours worked beyond 40 hours in a work week.

The applicable laws are enforced by the U.S. and New York State Departments of Labor. In addition, employees who have not been paid overtime can sue.

Under the federal law, you can go back as far as two or three years, depending on the facts. Employees are also entitled to "liquidated damages" equal to the amount of unpaid wages. In other words, in an overtime suit, you can sue for twice the unpaid amount of overtime.

Under New York State law, you can go back as far as six years. You can also get liquidated damages under state law, but the amount of liquidated damages is only 25 percent of the amount of unpaid overtime.

Under both laws, employees are also entitled to attorney's fees. That is, if you win, the employer gets to pay for the attorney representing the employee.

Employees can sue based on an estimate of the amount of unpaid overtime. The reason for this is that employer's have an obligation to maintain employee time records.

One employee can also bring a lawsuit on behalf not only on behalf of him or herself, but also on behalf of all similarly situated employees.

There are more and more lawsuits being brought by employees for unpaid overtime. There are also efforts going on on the federal level aimed at limiting the number of employees entitled to get overtime.

posted Dec 22, 2004 08:30 AM [EST]

Answer to I resigned from my current job and my last day was November 29, 2004. I then requested a delay of r

Unemployment Compensation

I am no expert on unemployment compensation, but over the years, doing employment work, I have picked up a little here and there.

Generally, you are entitled to unemployment compensation only if the employer terminates your employment. That is, with limited exceptions, if you resign, you are not entitled to get unemployment compensation.

If you are terminated by your employer, then you are usually entitled to unemployment compensation, but there are excepts if you are terminated "for cause."

I'm not exactly sure what constitutes "cause," but it would include things like insubordination or employee theft.

This area seems to get cloudy because employers will often allow employees to collect unemployment compensation even though the employee may not be entitled to the unemployment compensation. The Unemployment Compensation Board will pay you unemployment compensation as long as the employer does not object. Often, an employer may have valid grounds for objection, but nonetheless not object.

posted Dec 6, 2004 08:49 AM [EST]

Answer to FMLA - coercion

Retaliation under FMLA

Your fact pattern suggests primarily a retaliation situation. Retaliation takes place when an employer reacts adversely to an employee's attempt to assert a protected right, or assists another employee in asserting a protected right. The right must be defined by legislation, like the Family & Medical Leave Act (FMLA). The degree to which you are protected from retaliation is also defined by statute.

FMLA itself has no anti-retaliation provision. FMLA relies on the anti-retaliation provision in the Fair Labor Standards Act (FLSA). The anti-retaliation provision in FLSA is narrower than other laws, such as Title VII, which addresses certain kinds of discrimination. Under Title VII's anti-retaliation provision, just about any complaint would be protected. Under FLSA, only formal complaints are protected. That is, the only retaliation prohibited under FLSA (and FMLA by extension) is the filing and prosecution of an action or proceeding in court or in the U.S. Department of Labor.

If you are still in need of FMLA leave, then the aim of the employer's action might be to discourage further use of FMLA leave. That might be a violation of FMLA directly, and, technically, not even a retaliation claim.

As an additional asside, if you have a retaliation claim, generally, retaliation claims are easier to prove then the substantive claims giving rise to the retaliation claim.

posted Nov 19, 2004 09:22 AM [EST]

Answer to Is a non-compete contract enforceable in New York State?

The Sure Way

The only sure way of determining whether a particular non-compete agreement is enforceable before potentially violating the agreement by going to work for a competitor of your employer, is to start a declaratory judgment action. The aim of a declaratory judgment action is to determine the rights of the various parties involved in a particular situation.

posted Nov 17, 2004 09:53 AM [EST]

Answer to Mandatory Non-Compete 3 years into job?

What's sufficient consideration

Although non-compete provisions in employment agreements have a checkered history in New York State, one issue that is not in doubt is that an employee's continued employment is deemed to be sufficient consideration.

For those of you who are not contract law experts, for a contract to be legally binding, each side must give the other something of value. That exchange of value is called "consideration."

posted Nov 10, 2004 08:09 AM [EST]

Answer to maternity leave turned to lay off

Conflicting Reasons

Discrimination claims always get to the reason why an employer takes an action. Discrimination laws are intent laws. That is, in a discrimination case, a court has to in effect climb into the mind of an employer to determine what the employer was thinking.

Now, only certain reasons are prohibited by the anti-discrimination laws. That is, an employer cannot take an action if the reason for the action is an employee's race, national origin, religion, gender, age or handicap. Gender discrimination includes pregnancy discrimination, so that an employer is prohibited from taking an action against an employee if the reason for the action is the employee's pregnancy.

The wording of what I have said above is important because without grasping the wording of what I have just said, you will not understand what I am about to say. Although it is illegal to take an adverse employment action against an employee because that employee is pregnant, it is perfectly legal to take an adverse employment action against any employee, even if the employee happens to be pregnant. In other words, simply because an employee is pregnant does not mean that employee cannot be fired, demoted, transferred, suspended, etc.

In this query, it seems that the employee was fired for two possible reasons: 1) because the company was in financial trouble and had to cut staff; and 2) because the employee is pregnant. The first reason is legal. The second is not.

Without knowing a lot more about the case, I would not be able to say whether reason 1, 2 or both is the actual reason for the employer's action. If the facts show that the only reason was reason 1, then the employer has done nothing wrong. If the reason was 2, or a combination of 1 and 2, then the employer's action is probably illegal.

posted Oct 19, 2004 09:38 AM [EST]

Answer to Never Received Salary Promised/Company Sold

It's a Contract

If you can prove that the employer agreed to pay you a certain amount, that is a contract, and you can sue on the contract.

Further, the payment of wages is protected under New York State law. There is even an argument for saying that yor signing a severance agreement for half of the wages would not prevent you from later suing the other half, because there is some support in the law that you cannot waive you right to the payment of wages.

posted Oct 9, 2004 10:05 AM [EST]

Answer to NYS Workers Compensation and termination of job

Out on a Job Related Injury

In answering this question, we need to consider two statutes, New York's Workers' Compensation Law, and the federal Family and Medical Leave Act ("FMLA").

If we were to look at only the Workers' Compensation Law, the answer would be, Yes, with an important exception. The Workers' Compensation Law does not protect an employee's job while the employee is out on a job related injury. However, the employee might have some protection if the employee is fired because of filing a Workers' Compensation claim.

It's a fine distinction. The fact of injury does not protect your job. The fact of making a claim does protect your job, but only t the degree that the motivation for firing you is your filing of the claim.

Now, all employers are covered by the Workers Compensation Law. Not all employers are covered by FMLA. Roughly speaking, your employer would be covered by FMLA only if there are a total of 75 employees somewhat close to the location where you work.

Not all employees are covered by FMLA. Under Workers' Compensation, you are covered if you are injured. It does not matter how long you have been working. Under FMLA, you have to have been employed for at least one year, and have put in at least a certain number of hours in a 12 month period (1,250 hours) to be covered.

Finally, not all injuries are covered by FMLA. Basically, an injury has to be somewhat on the serious side for FMLA to cover the injury.

So, unlike Workers' Compensation, which will cover any injured employee, FMLA is not always available. If it is available, it will protect an employee who is out because of a job related injury. However, it will protect that employee's job for only 12 weeks, unless the employer has certain policies that might have the effect of extending the coverage period.

posted Sep 16, 2004 08:11 AM [EST]

Answer to WAGES NOT PAID FOR 1.5 YEARS

SOL on Wage Claims

Wage claims are good for a long as six years in New York. The six years would be measured from the time the wages became due, that is, the pay day for that particular pay period. Each unpaid paycheck is, in essence, a separate claim.

posted Sep 13, 2004 09:16 AM [EST]

Answer to salary deduction

Docking Exempt Employees

Under the Fair Labor Standards Act, the key distinction is not between salaried and hourly employees. The key distinction is between exempt and non-exempt employees.

All employees are considered non-exempt unless an employee falls under an exception to this general rule. An exception to the rule is called an exemption. There are three big exemptions, and a good number of smaller ones. The big three are for professional, executive and administrative employees. To a very large extent, exactly which employees fall under the big three exemptions is determined under regulations from the US Department of Labor. It is these regulations that you are reading about in the newspapers lately.

Non-exempt employees are entitled to overtime after 40 hours in a workweek. Exempt employees are not entitled to overtime, but employers can pay overtime to exempt employees if the the employers wishes to do so, and the employer can pay overtime to exempt employees on a basis other than time-and-a-half. Non-exempt employees are typically paid on an hourly basis. Exempt employees are typically paid on a flat rate or salaried basis.

Generally, whether an employee is exempt depends not on the way the employee is paid, but on the type of work the employee does. For example, a clerical employee would normally be considered a non-exempt employee entitled to overtime. An employer cannot make a clerical employee an exempt employee by paying that employee a salary.

And it is the work that is important, not the title. So, an employer cannot make a file clerk an exempt employee by calling that file clerk a "vice-president for document storage," if that employee's primary job continues to be filing documents.

Although the work is what is primary, an exempt employee can become a non-exempt employee if the employer treats the employee like a non-exempt employee. For example, let's take the example of attorneys working for a big law firm. Attorneys would typically be considered exempt employees. Attorneys usually keep detailed records about their time, but for billing purposes and not pay purposes. Attorney time records would not make an attorney a non-exempt employee.

But let's say this big law firm started to require its attorneys to be in by 9 AM. Not only that, but attorneys could take only two 10 minute breaks per day, and 30 minutes for lunch. Any attorney failing to arrive on time, or taking more than the time allowed for breaks would be docked. So, if an attorney arrived at 9:15 AM, that attorney would be docked for one-quarter hour of pay. If another attorney took 60 minutes for lunch, that employee would be docked one-half hour of pay.

In this hypothetical example, the attorneys in this big law firm would actually be non-exempt employees entitled to overtime. Docking the attorneys for lateness isn't illegal. The docking only changes what the attorneys are entitled to receive as compensation.

Note that not all docking will make exempt employees non-exempt. For example, let's say that one attonrey at this big firm decided to take a Monday off, for whatever reason. Let's say that this attorney had used up all of her available leave. So, the law firm docks the attorney one full day of pay for the day taken off. In this case, the docking of the full day will not cause that attorney to become a non-exempt employee entitled to overtime. Generally speaking, exempt employees can be docked for full days, but not part days, without the exempt employee becoming a non-exempt employee.

posted Sep 13, 2004 08:59 AM [EST]