Answers Posted By David M. Lira

Answer to Is COBRA Option for Employer?

COBRA Violations

Provided that an employer is big enough to be covered by the law, COBRA is not optional for employers.

Now, COBRA is enforceable by both the government and private citizens. The US Department of Labor has responsibility for enforcement by the government.

If a private citizen (that is, an employee) attempts to enforce COBRA, what the employee can get is very limited. Basically, an employee can get only the difference between what the employee had to pay out for medical care, and the amount the employee would have had to pay to get COBRA coverage. It may not be much. (You would also be able to get attorneys' fees.)

I think at the very least that the employee would have to be able to show that the employee looked for private coverage to replace denied COBRA coverage. Unless the facts are pretty compelling, an employee would not be allowed to simply refuse to get coverage to replace the denied COBRA coverage, and then have the employer pay for medical costs the employee may have to incur.

But I have had situations where employees did not even have the chance to get COBRA or other replacement coverage, such as when the employer cancelled medical coverage even before the employee knew she was fired. The employee had already scheduled surgery. In the right case, the employer can be held liable for the costs of medical care, less the amount the employee would have paid for denied COBRA coverage.

posted Jul 14, 2004 08:53 AM [EST]

Answer to retaliation termination

Fired on a Lie

Because New York is an employment at will state, an employee can be fired on the basis of lies.

Also because New York is an employment at will state, you can quit a job without notice, and your employer cannot require you to finish up a shift. You don't even have an obligation to find anyone to finish the shift.

posted Jul 9, 2004 10:03 AM [EST]

Answer to severence pay

Proving a Contract

If you had a copy of the contract, you would have a pretty solid case.

The fact that neither you nor the company have a copy of the contract doesn't necessarily kill your claim for severance, but you have a very difficult case with a copy of that written contract.

Moral of the story: Each of us should have one place where we can safely store important documents such as contracts.

posted Jul 6, 2004 1:45 PM [EST]

Answer to Asked to sign a non compete after leaving job

Too Late

There is nothing in the law that would stop a former employer from asking a former employee to sign a non-compete agreement. However, there is also nothing requiring the former employee to sign the non-compete.

A former employer might sue the former employee, even without a signed non-compete, claiming that the former employee stole propriety information, but that would be a very difficult claim to win.

posted Jun 25, 2004 08:45 AM [EST]

Answer to Can I quit and receive unemployment?

Religion and the Workplace

I would strongly encourage you to set up a meeting with a qualified attorney to discuss your specific situation. This website uses questions from the public in order to provide the public general information about employment law. This website is not intend to provide advise on specific situation.

Nonetheless, your question raises a number of very interesting issues. The issues I will cover are: 1) Constructive Discharge; 2) Discrimination on the Basis of Religion; and 3) Employer Obligations to Pay Wages.

CONSTRUCTIVE DISCHARGE

I usually encounter the concept of constructive discharge in discrimination situations, particularly in harassment situations. The facts usually involve a work environment where the discriminatory treatment is so frequent and so bad that no rational person could tolerate it. As a result the employee quits.

Now, simply because an employee is being treated badly does not create a constructive discharge situation. The situation, under past law, had to be pretty bad.

The advantage of having proof of constructive discharge is that, even though the employee quit, the separation is nonetheless treated as a termination. Once treated as a termination, the employee is able to recover backpay, or loss of earnings for the time it takes the employee to find a new job.

The US Supreme Court only this week addressed this issue, and managed to only muddy the entire concept. I always cautioned employees about quiting, but, after this Supreme Court decision, I think employees need to be even more cautious.

From a legal perspective, I would rather have the employee stay on the job until the employer fires the employee. But I also tell clients that I don't work there. I can really know how bad a situation is. Thus, I have to leave it up to the client to decide whether he or she should leave. I do, however, tell the employee that they might have a hard time getting unemployment compensation, and the employee might be waiving the right to get backpay.

DISCRIMINATION ON THE BASIS OF RELIGION

Both federal and state law prohibit discrimination on the basis of religion. Requiring employees to participate in religious indoctrination may well be considered a form of discrimination or harassment on the basis of religion. As a result, employees may be able to bring a lawsuit or proceeding against the employer.

PAYMENT OF WAGES

This is one of the few areas of the law in which the employee has the advantage. An employer's failure to pay wages promptly could result in the employer not only having to pay wages due, but paying a penalty to the employee of 25 percent of the unpaid wages. In addition, the employer might have to pay not only for its attorneys but also for the attorneys representing the employee.

posted Jun 18, 2004 10:17 AM [EST]

Answer to sexual discrimination

Getting into details

Discrimination cases, including cases in which the discrimination is said to be gender (sex) based, are highly fact specific. When you get to the point of wanting to know whether you have a viable case, that question is inappropriate for this website, because it is too fact specific and too public. At this point, you need to contact an attorney directly, and set up an initial consultation.

posted May 25, 2004 08:58 AM [EST]

Answer to Non compete agreement

Got to See It

The only way an attorney can give you an opinion as to the validity of any kind of agreement, including a non-compete, is for the attorney to see the agreement. In the case of an H1B employee, the attorney would also need to see the H1B agreement that the employer signed.

posted May 24, 2004 10:58 AM [EST]

Answer to non-equal pay rates, based on race

Discrimination in Terms of Pay

The Equal Pay Act concerns only differences in pay between men and women in the same or similar jobs. In other words, it address discrimination in pay based on gender. The Equal Pay Act, however, is not the only law prohibiting this type of discrimination. So does Title VII of the Civil Rights Act of 1964.

Title VII prohibits discrimination not only based on gender but also race, national origin and religion. Other laws cover age and disability. Title VII covers discrimination in any term or condition of employment, including pay. Thus, it is illegal to pay an employee at a lower rate because of that employee's race.

In New York State, there are similar protections under the Human Rights Law. Employees in New York City are also protected by the NYC Human Rights Act.

posted May 21, 2004 10:39 AM [EST]

Answer to Discrimination by nationality? Jobs not published either

H1B Visas

I am increasingly running into questions involving employees in the US on H1B visas. These employees are raising issues that are still relatively new to me, and I'm still learning.

The purpose of H1B Visas is to allow employers to bring to the US employees with skills that are hard to find in the US workforce. To bring an employee to the US on an H1B visa, the employer actaully has to enter into a contract guaranteeing that employee a job for a set period of time, at a set amount of pay.

H1B employees are not supposed to be hired to displace American employees. For this reason, V1B employees are supposed to be paid a prevailing rate. That is, employers are not supposed to bring in V1B employees because they are willing to work at lower pay rates than American employees. If an H1B employees is getting less than the prevailing rate, the H1B employee can actually bring a proceeding to force the employer to pay a prevailing rate. The Immigaration and Naturalization Service can also start an investigation to force an employer to pay a prevailing rate, even if an H1B employee does not complain. I don't know if the INS has a procedure by which an American employee can complain about a prevailing rate violation, but it might. The American employee probably wouldn't get anything out of making a prevailing rate violation, but there probably are anti-retaliation provisions that might protect the complaining American employee.

What I am seeing, despite what the law says, is employers bringing in H1B employees at rates much lower than the prevailing rate. To the V1B employee the rate still looks great, because it is higher than anything they can get at home. They also just want to come to the US. H1B visas are temporary, but a lot of employees coming over find ways to extend their stays, and they are finding ways to get green cards and eventually US citizenship. Because they want to stay in the US, these V1B employees hate rocking the boat. They are willing to tolerate a great deal of abuse.

It sounds like your employer is favoring the H1B employees because they will work longer and harder for a lot less. If this favoritism is illegal, it would be illegal only to the extent that the employer's behavior violates the laws and regulations governing H1B employees.

posted May 21, 2004 10:29 AM [EST]

Answer to sexual harassment what can I do

Small Employers and Same Sex Harassment

In New York State, sexual harassment is prohibited by the federal Civil Rights Act of 1964, commonly referred to as "Title VII," and the New York State Human Rights Law. If you work in New York City, it would also be prohibited by the New York City Human Rights Law. Title VII applies only to employers with 15 or more employees. The NYS HRL applies only to employers with four or more employees.

If an employer has fewer than four employees, you might be able to pursue a claim against the individual harasser and maybe the employer under a common law tort theory. However, pursuing this type of theory is harder to do. The reason for the anti-sexual harassment laws was in part to make it easier for people to pursue claims, especially against employers. But common law tort is at least an option.

Now, understand that harassment is not illegal. It becomes illegal only if the harassment is motivated by the victim's sex, or race, religion, national origin, age or disability. It might be illegal if the harassment is motivated by the fact that the victim asserted certain other rights, or was helping other people assert certain other rights. (In this case, what we would likely have is retaliatory harassment.) Thus, you have a viable harassment claim only if the harassment is motivated by certain reasons.

I bring this up because you do not say why this other woman harassed you. If she harassed you because she took a personal dislike to you, you may not have anything. But if the harassment was motivated by something like your race, then you might have something.

The way you wrote about your situation caused me to think that you believed this other woman harassed you because you are a woman. If that is the case, you would have a case of same sex harassment. You can successfully sue for same sex harassment, but you will need to prove that the harassment was motivated by the fact that you are a woman.

posted May 21, 2004 10:06 AM [EST]