Answers Posted By David M. Lira

Answer to Late Pay

When Pay is Due

Under New York State law, an employer is suppose to pay employees within two weeks of the end of the pay period. You can file a complaint with the New York State Department of Labor.

posted Sep 7, 2004 08:51 AM [EST]

Answer to Age discrimination

Who is Covered by Age Discrimination Laws

When I go to schools, I often ask the students who is covered by the anti-discrimination laws. Under many laws, the answer surprises the students, because the answer is everyone. Whites are covered as much as blacks, Jews are covered as much as Protestants, people of English ancestory are covered as much as Hispanics.

There are two sets of anti-discrimiations laws, however, which are excepts. Those are anti-discrimination laws dealing with disability and age. You can't say everybody is covered by those two laws.

Under the federal anti-age discrimination law, you are not protected by the law unless you are at least 40 years old. Under the New York State anti-discrimination law, you are not protected against age discrimination unless you are at least 18 years old.

posted Aug 20, 2004 08:49 AM [EST]

Answer to Discrimination

Same Sex Sexual Harassment

Although I'm not entirely sure, the query sounds as if it is from a woman about the behavior of two female managers. At least arguably, the situation sounds like harassment. So, it seems we have a case of same sex sexual harassment.

The US Supreme Court has recognized that you can have a valid claim of sexual harassment, even though the harasser(s) and harassee have the same gender. The case before the Supreme Court involved men, and, even more interestingly, did not seem to involve homosexual men.

posted Aug 20, 2004 08:34 AM [EST]

Answer to pregnancy discrimination in a medical spa setting

Pregnancy Discrimination

Sometime back a woman brought a sex discrimination claim. The facts indicated that the real motivating factor wasn't so much her sex but that she was pregnant. The case went all the way to the U.S. Supreme Court. Incredibly, the U.S. Supreme Court said that employment decisions based on an employee's pregnancy are not sex discrimination.

This decision came down more than 20 years ago, when Congress and the President could still be counted upon to make rational decisions. Congress passed, and the President signed into law the Pregnancy Discrimination Act. The law basically says that discrimination on the basis of pregnancy is a form of sex discrimination, overturning the Supreme Court decision.

When you talk about pregnancy discrimination, like any other form of discrimination, you are talking about proving intent. That is, to succeed in a pregnancy discrimination case, you need to show that the decision to terminate, or whatever, was at least in part motivated by your pregnancy. You do not get automatic job protection just because you are pregnant.

Employers, of course, will rarely admit to a discriminatory motive. So, most discrimination cases involve circumstantial evidence. One form of circumstantial evidence that sometimes works is proof like that discussed in this query: An employee is performing just fine. She then tells her employer she is pregnant. Shortly after that, she suddenly becomes a problem employee, and is soon after that fired for performance reasons.

Timing would be very important, and it would greatly help if there were other indicators of pregnancy discrimination, such as comments concerning an employee's condition, or about the abilities of pregnant women.

posted Aug 19, 2004 08:28 AM [EST]

Answer to I didn't sign a non-compete but my co. is considering sueing....

Employer Suing to Some Former Employees from Competing

The issue is never whether an employer (or anyone) can sue. The answer to that question is, yes, the employer can sue, and cost you money defending. (The real issue is whether the employer will win the lawsuit.)

Generally, courts do not like doing anything that will impede competition, or prevent a person from finding a job. This concern is part of the reason why courts look at non-compete agreements in the employment context very carefully. That is, an employer is already fighting an uphill battle trying to prevent an employee from stariting his or her own, competing business, or going to work with an existing competitor, even with a non-compete agreement.

Without some type of non-compete agreement, an employer has an even more difficult battle. I would say that, in the normal course, the level of difficulty an employer faces is nearly impossible.

But there may be some extraordinary cases where an employer might succeed. An example of where an employer might succeed is an area where the work is highly specialized. But the employer would probably need to show that the employee took proprietary information or trade secrets.

posted Aug 18, 2004 5:10 PM [EST]

Answer to Medical disabilty then laid off

Fired After Returning from Disability

Disability does not confer on the disabled person any right to a job. However, disability is a protected classification under both federal and state anti-discrimination laws. So, you cannot be fired if the motivating factor is your disability. But this is hard to prove, since you need to show that the decision-maker's thinking was at least in part focused on the disability, as opposed to something else.

The receipt of New York State disability benefits also does not confer any right to a job. However, if you can prove that the employer decided to terminate you because you filed a claim for disability benefits, then you would have a claim. But again, such a claim is hard to prove because you need to essentially climb into the decision-maker's head, not easy to do. (The same would be true if you are talking about some type of private disability benefits.)

If you have worked for an employer long enough and for enough hours, and if the employer is large enough, then you may be covered by the Family & Medical Leave Act. FMLA provides some protection from being fired, but only 12 weeks protection. A FMLA case is a lot easier to prove because, unlike the anti-discrimination laws, it is not an intent law. That is, you don't have to climb into a decision-maker's head. You only need to prove you were eligible for FMLA leave, and you were terminated during the time you were using FMLA leave.

However, like the other laws discussed so far, FMLA does not confer a right to a job. If you would have been fired if you had not taken FMLA leave, you can be fired, even though on FMLA leave. If your job really was eliminated during a restructuring, then your firing probably was proper.

Now, firing someone while on FMLA leave doesn't seem, from an employer's perspective, like a very good idea. And I can see an employer wanting to discourage employees from taking FMLA leave. So, it isn't beyond the pale that an employer might want to make an example of an employee by firing that employee for taking FMLA, but by not firing that employee until the employee returns from FMLA leave. The employer might try to further hide its true motivation by claiming a restructuring involving only one employee. (Courts will usually give employers a lot of lead way in true restructurings, and employers would want to take advantage of that traditional deference.)

Now, there are a lot of assumption in this hypothetical, but if the assumptions were factually true, the employer would be in violation of FMLA. But, again, it would be a hard case, because you again have to start climbing into the employer's head.

In those cases were you have to climb into the employer's head, employees can use circumstantial evidence, but, when you rely on circumstantial evidence, you need more than one or two pieces of evidence to succeed.

Incidentally, employees are generally not entitled to severance pay.

posted Aug 18, 2004 08:50 AM [EST]

Answer to Mandatory lunch break?

Lunch Breaks Are Mandatory

Under New York State law, as enforced by the New York State Department of Labor, employers must give employees work more than a certain number of hours per day a lunch break of at least 30 minutes.

posted Aug 13, 2004 5:05 PM [EST]

Answer to Offer withdrawn based on H-1B discrimination

H1-B Visa Jobs

I have no doubt that the employer decided not to hire your wife because she would be an H1-B visa employee. You might call that discrimination in a general sense, but it is not a form of discrimination that is illegal.

A lot of employers look at H1-B visa employees as a cheap way of getting workers. (The H1-B program allows U.S. employers to hire foreign workers in fields where workers are in short supply to work in the U.S.) This should not be the case, because under the H1-B visa program, employees are supposed to get a rate of pay equivalent to American employees. The fact that H1-B employees often get substandard rates just demonstrates how little employers know about the program. That, or they believe they can get away with paying substandard wages to H1-B employees.

There is something else that many employers do not know about the H1-B program: When an employer hires an H1-B employee, the employer is promising to hire that employee for a fixed period of time, usually three years. The paperwork involved in hiring an H1-B employee creates an employment contract requiring an employer to make a relatively long term commitment.

In New York State, at least with respect to employment, this is unusual. Relatively few employees in New York have written employment agreements. Fewer still have commitments from employers to keep someone employed for a fixed period of time.

My bet is that a fair number of employers never read the paperwork involved in hiring an H1-B employee, probably thinking it will never be enforced if they breach their agreement. But every once in a while I have heard of an employer reading the paperwork, realizing they are making a long term commitment, and then refusing to sign-off on the agreement. My bet is that is what happen here with your wife. That is unfortunate for your wife, but it is probably not illegal.

The more likely sources of illegality in cases involving H1-B employees are the employers paying substandard wages, or failing to keep the promises they made in the paperwork. The broken promises often involve not paying the promised wages. I have one case where the employer failed to even pay the employee for most of two of three years of the agreements.

H1-B employees should realize that the paperwork creates rights that are enforceable under law. Both the INS and the courts will help these employees enforce those rights.

posted Aug 6, 2004 08:20 AM [EST]

Answer to 2 weeks notice mandatory?

Sometimes it works for employees

New York is an employment at will state. Usually, this doctrine seems to work only for the employer, but sometimes it works for the employee. Under the employment at will doctrine, an employee can leave a job at any time for any reason, or no reason at all. No notice is required.

posted Jul 23, 2004 3:57 PM [EST]

Answer to my stop payment

H1B Visas

An H1B Visa is a device which allows employers to hire foreign workers for jobs in the United States. The idea behind the H1B visa is to allow employers to get foreign talent in areas in short supply in the United States.

The H1B visa is NOT suppose to be a way for an employer to hire cheaper foreign labor. Employees hired on an H1B visa are supposed to be paid at a rate comparable to American workers. If the employer fails to pay a market rate to the foreign worker, the foreign worker can file a complaint with the INS (of all places) to force the employer to do so.

One of the things that the H1B visa tries to prevent is foreign workers coming to the US and ending up on social welfare rolls. The H1B program prevents this by requiring employers to enter into a contract with the foreign worker, in which the employer promises to pay a fixed rate of pay for a fixed period of time (usually 3 years). These contracts will often provide for other benefits, such as health or education benefits. If the employer fails to live up to the terms of the H1B visa, the employee can sue, usually in state court, to enforce the contract.

posted Jul 16, 2004 09:51 AM [EST]