Answers Posted By David M. Lira

Answer to Terminating an employment contract

Got to See the Contract

This comment is true of any query which concerns a contract: An attorney cannot offer an opinion concerning a contract without review the actual wording of the entire contract.

posted May 6, 2004 08:05 AM [EST]

Answer to Non-Compete

The Wording is Key

Have you violated the non-compete agreement? I don't know. I haven't seen the agreement.

Whether you have violated any provision in a contract depends on the wording of the contract. As a result, an attorney cannot say whether a particular course of conduct violates a contract without seeing the precise wording of the contract.

Also bear in mind that you can technically be in violation of the agreement, but still win the case. That is because New York Courts are suspicious of non-compete provisions in employment agreements, and will not necessarily enforce them.

posted Apr 27, 2004 08:24 AM [EST]

Answer to Unemployment Benefits

Do Employers Lie?

Do employers lie? Sometimes they do. In your case, the employer told you that it wanted to deny you unemployment benefits. If it wants to achieve that aim badly enough, it might lie. There might be consequences for lying, but nothing prevents the lie.

If an employer manages to get unemployment benefits denied, you always have the option of appealing the initial decision. The Unemployment Compensation Board will arrange a hearing, and a judge will decide whether the employer is telling the truth about the misconduct.

Generally, employees stand a good chance of succeeding on unemployment compensation appeals.

posted Apr 23, 2004 08:23 AM [EST]

Answer to My husband was fired. Now they are refusing to pay final check.

When an EMployer Refuses to Pay Wages

The truth is that, in NY State, employees don't have a lot of rights. One exception, though, is the payment of wages. Under NY State law an employer must pay earned wages within two weeks of the end of the pay period. Pay periods cannot be shorter than bi-monthly. If an employer fails to pay, the employee can sue and collect not only the wages due but also a 25% premium above that ("liquidated damages"), and attorneys' fees and costs of litigation. Employers have few defenses against wage claims. They cannot even offset claimed debts against wages.

If an employer fails to pay wages, the employee has the option of going to the New York State Department of Labor or court. The problem with the Department of Labor is that they cannot help you if you earn more than $600 per week. So, a lot of employees have no option but court.

Even though NY law provides for attorneys fees, most employees will have a very hard time finding an attorney willing to take their case. One reason for this is that very few lawyers are familiar enough with wage and hour issues to know that liquidated damages and attorneys' fees are available. As a result, most attorneys will undervalue your case.

However, even attorneys knowledgeable in wage and hour laws will tend to shy away from cases involving small amounts. A claim for $2500 or $3100 will be a small amount. This is not the way it is supposed to be, but the truth is that a judge will have a hard time awarding an amount for attorneys' fees that could easily exceed the amount of the claim.

So, a lot of times, an employee has to go to small claims court. Small claims proceedings are supposed to be resolved quickly.

I have to confess that I don't know the procedures in small claims court. But I can tell you that in the cases that I work on, what a judge gives you will not necessarily compell an employer to pay.

When you win a case tried to a judge, you get an Order. When I get an Order for a client, it is up to me to get it "reduced to judgment." In federal court, the clerk of the court will automatically reduce the Order to a Judgment. In state court there might be extra steps. I say "might" because small claims court is suppose to be easy to use. So, may be, but I don't know, the Order in a small claims action also automatically gets reduced to judgment. Ask the clerk in small claims court if that happens automatically, or, if you have to take extra steps.

In any case, judgments are remarkable things. Once you have a judgment, you can go to the sheriff to get it executed. The sheriff can do interesting things like take money out of the employer's bank account to satisfy the judgment.

You can even freeze the money in a bank account by sending the right type of notice to the employer's bank.

Judgments can cause all kinds of disruptions to a business. As a result, when an employer has a judgment entered against it, it usually has a lot of incentives to pay up immediately before you with the help of the sheriff start invading the bank accounts or confiscating the cash register.

posted Apr 23, 2004 08:14 AM [EST]

Answer to Forfeiture of vacation time in addition to docking for lateness

Docking of Hourly Employees

Employers are permitted to dock HOURLY employees for being late. (Employers can even dock salaried employees for lateness but there could be other consequences related to overtime as a result.) They are further permitted to discipline employees for being late, and there are no limitations in the law as to what that discipline could be. An employer could, for example, legitimately terminate an employee for lateness, even one lateness. If termination is permissible discipline, discipline in the form of loss of vacation time is mild in comparison.

posted Apr 22, 2004 09:36 AM [EST]

Answer to contract / defamation of character

Defamation and the Workplace

On your question of whether to contact an attorney, the answer is: I don't know. How strongly do you feel about the situation?

This website seeks to educate not so much you as an individual, but the public in general about broad points of employment law. When people present involved fact patterns, they are, whether they know it or not, looking for legal advice. There are all kinds of reasons we can't give you legal advice in response to queries posted to this website, including the fact that we would be posting what should otherwise be confidential information for all the world, including your employer, to see.

Your query is an example of another reason we cannot respond to involved fact patterns. Your query is long, but, in including so much information, you have succeeded in raising a lot of questions that your query does not come close to answering. In other words, there is a lot of information missing that would be vital for me to answer your question about whether there is a viable defamation case. And the type of information I would need is the type of information that should be disclosed only in a private consultation.

To provide only a very general answer to your question concerning defamation, statements do not become defamation simply because you find the statements unflattering. In fact, especially in New York State, defamation is difficult to prove.

In addition, whether you have a defamation case often depends on who heard the defamatory statement. You cannot successfully sue even on a statement that would otherwise be defamatory if it is said to certain people or said in certain situations. This gets to a concept called "privilege." There are two types of privilege, absolute privilege and qualified privilege.

For example, even if we assume a statement is defamatory, you could not successfully sue on it if the statement was made during the course of a hearing or trial in court. That is just the law. This is an example of absolute privilege. It is absolute because there are no exceptions.

If the statement is made within the workplace of an employer, it is generally extremely difficult to win a defamation case because the law generally grants some extra protection to statements made within an employer's workplace. This is an example of qualified privilege. It is qualified because the law assumes the statement should be treated as privileged, but the law allows for certain excepts, which are generally difficult to prove.

From My Employment Lawyer's Moderator: Here is an additional article on Defamation at Work:

http://www.myemploymentlawyer.com/wiki/Defamation-by-an-Employer.htm

posted Apr 22, 2004 09:17 AM [EST]

Answer to sexual harrassment

Deadline for filing sexual harassment complaints

The unemployment compensation is something I cannot answer.

On the sexual harassment claim:

In New York State, you can file a claim of sexual harassment in any one of four places: 1) the federal Equal Employment Opportunity Commission; 2) the New York State Division of Human Rights; 3) a local commission on Human Rights,including the New York City Human Rights Commission; and 4) a court with jurisdiction. The EEOC is really a gatekeeper. You get to federal court through the EEOC.

When you have to file depends on what has happened, and on where you file.

Harassment claims keep on going. Every day you experience a continuation of the sexual harassment lengthens the deadline for filing a complaint. But you have to be careful of breaks in the harassment. FOr example, if the harassed is away from the office for a significant period, there may be a break in the harassment. To get the conduct before the break covered, you need to file by a deadline measured from the start of the break. The harassment may start again when the harasser returns, but behavior after the break for certain purposes will be treated separately from behavior before the break.

If an employee leaves or gets fired, the statute of limitations begins to run from the date the employee leaves or gets fired.

If you file with the EEOC, you must file within 300 days of the last incident. But there is a quirk in the law that can sometimes burn an employee. SO, I believe complaints should generally be filed within 240 days of the last incident to be safe. If you file with the Division or a local commission, you have one year to file. If you file directly in court without going to an agency, you have up to 3 years to file.

But note, where you file can affect your rights. If you file directly in court, or with the Division or local commission, you could lose your rights under federal law. If you don't handle your filing with the EEOC right, you could lose your rights under New York State law. There is a way to protect both your federal and state rights, but you have to do it in the right way, and at the right time.

TO protect all of your rights, you really need to retain an attorney knowledgeable in this area of law.

posted Mar 8, 2004 5:12 PM [EST]

Answer to After FMLA

Not a Full Guarantee

The Family Medical Leave Act ("FMLA") provides qualified employees 12 weeks of unpaid leave in order to permit those employees to tend to the medical and certain other needs that they or close family members may have. Although FMLA provides for a degree of job protection, it is not a full guarantee of job security.

In other words, it is possible for an employee on FMLA leave to legally be fired. FOr example, let's say that, while the employee is on FMLA leave, the employer experiences a massive lay-off. Under the, let's assume, the fair, objective criteria used by the employer, the employee would have been laid off if the employee was not on leave. In this case, the employee could also be properly laid off while on FMLA leave, but any employment attorney representing the employer would likely say the employer is taking a chance terminating an employee while on FMLA leave.

It is also possible for an employer to properly place an employee returning from FMLA leave in a different job than the one the employee had originally. In this situation, the critical question is how important was it for the employer to have someone doing the employee's job. If the employer needed that job filled, and it was either difficult or impossible to fill the job on a temporary basis, then the employer could properly replace the employee.

However, the employee is not out of luck. The employer still has an obligation to place the employee is a job which as close as possible to the original job. Whether an employer has fairly fulfilled this obligation can only be determined by a thorough review of all relevant circumstances.

An employee going out on FMLA leave may signal an employer that the employee has a chronic condition that the employer just does not want to deal with, because the employer has problems dealing with employees with disabilities, or the employer fears an increase in health insurance costs, or any number of other reasons. In other words, the taking of FMLA may initiate a situation involving discrimination on the basis of disability, under the Americans with Disabilities Act, or the New York State Human Rights Law. The employer may not want to fire the employee while on leave. Instead, the employer waits for the employee to return, and then starts playing all kinds of games with the employee's job, either trying to get the employee to quit, or creating a justification for firing the employee. In this case, there might be a violation of FMLA, but the violation might instead be of the ADA or Human Rights Law. It all depends on the facts.

Overall, when dealing with employment issues, it is often very difficult to just say that a general situation does or does not violate the FMLA (or other law). In most cases, you need to look at all of the surrounding facts to even get a feel for whether there has been a violation of the FMLA.

posted Feb 25, 2004 07:26 AM [EST]

Answer to Emplyer's Refusal to give Letter of Termination

When is some one terminated?

There is a little known law in New York State that requires an employer to send a terminated employee a letter that includes the employee's date of termination. Employers routinely ignore this law, and there is no way that I know of to easily and cheaply enforce the law. But, your friend isn't out in the cold.

When it comes to Unemployment Compensation, it isn't uncommon for the employer to say the employee resigned, denying that it fired the employee. In that situation, what the employee needs to do is appeal the Unemployment Compensation Board decision to cut off benefits based on the employer's statement. The denial should tell you how to file the appeal.

Once the appeal is filed, UCB will schedule a hearing. Although I do not handle very many UCB appeals, my understanding is that employees who were truly fired stand a good chance of succeeding in these appeals.

posted Feb 3, 2004 09:24 AM [EST]

Answer to Wages Problem

Getting Paid

In New York State, employees really have limited rights, because of the employment at will doctrine. But one are where employees are well protected is with respect to pay.

State law guarantees the payment of wages on a regular basis, within a limited time of the pay being earned. Federal law requires the payment of at least the minimum wage. In the HIB context, in order to get the visa, employers had to agree to pay a prevailing wage.

In many cases, employers have to pay a penalty, and are liable for the employee's attorney's fees.

posted Feb 3, 2004 09:11 AM [EST]