Answers Posted By David M. Lira

Answer to Medical leave & Diciplinary Actions

Taking Time Off to Tend to SicK Children

Your situation might be covered by the Family Medical Leave Act. However, this law applies only to employers and locations where there are 75 employees within a certain radius. In addition, the employee seeking leave needs that have worked 1250 hours in the past year, and been with the employer for one year.

FMLA provides for 12 weeks of unpaid leave not only to let the employee take care of a serious medical condition that the employee may have, but also to take care of serious medical conditions that certain close relatives, including the employee's children, may have. FMLA leave need not be taken all at once. An employee can take part of a day for a medical appointment. Or, the employee can take a few days for a medical procedure that might entail recovery time. FMLA leave is unpaid, but an employer can require an employee to use paid leave, such as vacation and sick leave, as part of FMLA leave.

Disciplining or terminating an employee for taking FMLA leave is a violation of the law. You can sue under the law, or bring a complaint to the U.S. Department of Labor.

Employees are not required to use the magic words "Family Medical Leave" to be entitled to FMLA leave. Although it certainly helps if an employee raises the topic of FMLA leave, the employer also has a responsibility to inform employees of their rights under FMLA.

New York State does not have a law like FMLA. Some states do. Usually, the state laws give employees a few more rights.

posted Jan 29, 2004 09:03 AM [EST]

Answer to Non-Compete - Unemployeed for 6 months.

Declaratory Judgment

The only sure way of getting out from under a non-compete is a declaratory judgment action. The purpose of a declaratory judgment action is to declare the respective rights of a set of parties. In your case, you would be seeking a declaration that the non-compete is unenforceable.

The problem with a DJ action is that it would take months and many dollars to resolve.

An lower cost but less certain alternative is to simply take the job, and hope your former employer does nothing. Nothing happens pretty frequently. But it isn't sure fire.

posted Jan 22, 2004 4:13 PM [EST]

Answer to Non-Compete

Changes in Terms Subsequent to Hiring

I think it is always worth remembering that, if you sign an employment agreement with a non-compete provision in it, you are buying a potential lawsuit. Because my experience is that employers usually start using non-competes only when employees can fairly easily change jobs, I think new hires should just walk away from jobs where employers insist on non-competes. (A lot of employment attorneys disagree with this position, saying that the likelihood is that the employer will never enforce the non-compete, so it makes no difference whether you sign or not.)

As to existing employees who suddenly find the employer shoving a non-compete under their noses, there are options. Existing employees can collectively refuse to sign. In acting collectively, the employees get protection similar to that enjoyed by unionized employees. If an employer threatens to withhold wages if an employee fails to sign the non-compete, the employee can go to the Department of Labor. In NYS, with very few exceptions, it is illegal for an employer to withhold wages. (But, the employer could probably fire the employee, unless the employee acted collectively with other employees.)

Under NYS law, an employer is generally free to change the terms of employment at any time, for any reason or no reason at all. The employer can take away benefits, and lower pay rates, although employers cannot do this retroactively. The employer's ability to do this is part of the employment at will doctrine. So, the employer does not do anything illegal by requiring existing employees, who for years may have worked without such agreements, to enter into non-compete agreements.

But, as has been said many times in this website, in NYS, courts generally disfavor non-competes. Agreements containing non-competes are valid, but courts will in essence write out the non-competes because non-competes violate at least two public policies: the public policy favoring competition in the marketplace, including for employee-talent; and the public policy favoring people working, making a living and paying taxes. In other words, courts are likely to especially disfavor a non-compete involving a laid-off employee who is simply trying to make a living in a trade or business for which the employee is best qualified.

None of what I have said should be taken to mean that the employer will not or cannot sue the former employee who signed the non-compete. Remember what I said: If you sign a non-compete, you are buying a potential lawsuit. I am only saying that, if the employee is sued, and there is no guarantee that the employer will sue, the employee is likely to win.

Whether the employee will win on a non-compete depends on the facts of the case. Generally, what will be important will be the nature of the employer's business, the nature of the work performed by the employee, the nature and extend of competition in the market served by the employee and employer, and the precise terms of the non-compete. Non-competes of long duration and broad coverage are less likely to be enforced. The more generously an employer compensates an employee for staying out of the market, the more likely the non-compete will be enforced. If I were advising an employer, and the employer wants to keep an employee out of the marketplace for a year, I would tell the employer that, if the employer wanted a guarantee that the non-compete would be enforced, the employer should pay the employee a severance package worth about one year of pay.

posted Jan 21, 2004 09:18 AM [EST]

Answer to demoted, paycut, unemployment, earned vacation time pay

Changing terms of employment

The answer to your first question is "Employee at Will." In part, the employment at will doctrine allows an employer to change the terms of employment at any time for any reason or no reason at all.

The employment at will doctrine also allows you to quit at any time for any reason or no reason at all. No two weeks notice required.

Whether you can get unemployment is an entirely other matter. Generally, if you quit, you cannot get unemployment, but there are exceptions, such as constructive discharge, which involves the need to show the existance of an intolerable work environment. It is a difficult showing.

Whether a non-compete is enforceable depends on the terms of the non-compete, the nature of the employer's business, and the nature of the employee's job. However, in New York State, non-competes are generally disfavored, so that you are likely to win on a dispute concerning a non-compete. The problem is that you may have to spend a lot of money in attorneys' fees to win.

Vacation pay is considered earned, unlike sick leave. Generally, when you leave, you are entitled to take your vacation pay with you. The question is whether you have earned the vacation pay. That will depend on the employer's policy and practice.

posted Jan 20, 2004 08:43 AM [EST]

Answer to Game Plan for Paid Leave after FMLA Expires

Is 12 Weeks the Maximum?

The Family Medical Leave Act requires employers to provide employees with 12 weeks of unpaid medical or family leave under certain circumstances. It sets a minimum for employers. Although employers have started using the 12 week period as a kind of safe harbor rule allowing them to fire employees after 12 weeks of medical or family leave, employers still need to be very careful with that because FMLA does not set a maximum amount of medical or family leave. If an employer has a policy or practice which in effect gives employees more than 12 weeks of leave, then employers have to honor that. Thus, if an employer permits employees to bank sick leave in excess of 12 weeks, the employer has committed itself to more than 12 weeks of medical leave. At least you'll get the money, though your job will not necessarily be protected.

Although FMLA imposes a requirement that employers hold an employee's job for 12 weeks, there are circumstances where an employer can terminated an employee, even during those 12 weeks. As an employee's absence gets longer, I think it is safe to say that an employer has better grounds for replacing the employee.

posted Jan 12, 2004 09:12 AM [EST]

Answer to Layoff with no severance and hiring non union workers to do the job

Outsourcing

An employer can outsource a particular function, such as IT. If that involving terminating an entire department, there is nothing illegal about that.

Because employees generally have no right to severance, the fact that the employees are being terminated without being offered severance makes no difference. (Note that this answer is making a lot of assumption. Depending on what the employer has done and said in the past, it is possible that the terminated union employees have a right to severance.)

A big caveat here is the union. Yes, it is generally legal for the employer to eliminate an entire department, and terminated every employee in the department without severance. But, because there is a union, the entire action may be subject to collective bargaining. So, the employer may have to negotiate with the union over the outsourcing proposal, and the union may be able to negotiate something which lessens the sting to terminated employees.

The union owes its members a duty of fair representation. So, the members being laid off have a right to expect the union to get involved in the situation. If the union arbitrarily fails to act, the laid off members might be able to sue the union over the termination.

posted Dec 30, 2003 07:54 AM [EST]

Answer to hourly

From Hourly to Salaried

Under the employment at will doctrine -- that rule which is more other described as a rule allowing an employer to fire an employee for any reason or no reason at all -- the employer can at any time change not only your rate of pay, but also the method by which your pay is calculated. So, the employer can change you from hourly to salaried at any time.

But, let's not stop there, because this fact scenerio is so much fun - - -

Employers will often change an employee from hourly to salaried in order to avoid paying overtime. Here is where a big exception to the employment at will doctrine comes in. The exception is the Fair Labor Standards Act, which governs many wage and hour issues, incliding overtime.

Under FLSA, employees are usually considered hourly. If you work more than 40 hours in a week, hourly employees must be paid overtime under the FLSA. Under FLSA, an employer cannot get around the overtime rules simply by reclassifying an employee as salaried.

To get out from under the overtime rules, an employer needs to show that an employee falls under an exemption to the overtime rules. The big three exceptions are for executive, administrative and professional employees. Administrative employees are the biggest problem of the three, but you would not become administrative simply by being given a new title like "administrative assistant." Whether you fit under an exemption depends on the type of work the employee actually performs. If the work isn't considered to fall under an exception, the employee continues to be entitled to overtime.

Being classifed from hourly to salaried is a flag that the employer might be engaging in something which violates certain of the laws governing the workplace. Another flag would be being reclassified from employee to independent contractor.

posted Dec 18, 2003 4:26 PM [EST]

Answer to "Substantially Equal Employment" - coercion?

Being forces to give up severance

The general rule is that employees are not entitled to severance. However, if there is a written severance policy which is customarily followed by the employer, the severance policy, under the right set of factual conditions, could become an ERISA welfare plan. If it becomes an ERISA plan, then the employer would be stuck with the language "substantially equal employment."

Exactly what that language means is anybody's guess, but one place that needs to be checks concerning the meaning of that language is the policy itself.

posted Dec 17, 2003 4:19 PM [EST]

Answer to Discrimination and Worker's Compensation

Discrimination because of filing for Worker's Compensation

Can an supervisor exaggerate or even lie about your performance to justify getting rid of you and not create a liability problem for the employer. Answer: Yes.

The answer goes back to the employment at will doctrine, which permits employers to terminate you for any reason or not reason at all. You can be terminated, legally, even for a false reason. And the employment at will doctrine also allows employers, and their supervisors, to be mean, nasty and arbitrary.

But there are exceptions to the employment at will doctrine, and one of those exceptions has to do with Workers' Compensation. Basically, if the real reason for the supervisor's behavior is your filing a Workers' Compensation claim, then you have a claim of discrimination under the Worker's Compensation Law. You cannot be terminated or otherwise disadvantaged in your employment because you have filed a Workers' Compensation claim.

But note the narrowness of the protection. You cannot be terminated because of filing a Workers' Compensation claim. That does not mean you cannot be terminated while you are out on a Workers' Compensation claim. If the termination has nothing to do with your filing the claim, then the termination is legal.

In New York State, you file a Workers' Compensation claim with the Workers' Compensation Board. The WCB hates these claims, and does a very poor job handling them. Because of the WCB's hostility to these claims, these types of claims are very hard to win.

An attorney cannot charge you a fee in advance in representing you in these claims. This sounds good to you, doesn't it? It's actually a problem because there are very few attorneys willing to take these types of claims. Generally, you will not find an attorney willing to take a case of this type unless you have a very simple, straight forward case involving a very clear cut violation of law.

If attorneys were able to charge you even a small fee, they might have been willing to take your case inorder to get the misconduct of the WCB reviewed by a court.

posted Dec 17, 2003 4:05 PM [EST]

Answer to Extremely abusive boss

The Abusive Boss

Because of the employment at will doctrine, generally, a boss can be as abusive as he pleases to employees. Under the employment at will doctrine, the remedy open to employees is to quit, on the spot, and without consequences.

But, when dealing with an abusive boss, it is always important to ask two questions: Why? and How? Why is the boss so abusive toward a particular employee, or group of employees? How is the boss abusive? That is, what does the boss do or say that is so abusive? The why and how questions will often point in directions which can give employees additional remedies.

For example, you mention that at some point a GROUP of employees had some sort of confrontation with the boss. Afterward, the boss seemed to turn up the abuse to anyone who stayed. This set of facts suggests that the abuse after the confrontation may have been motivated by the collective action. That is, the answer to the WHY question is the group action.

On the assumption that the facts bear this out, the answer to the why question points to a possible violation of the National Labor Relations Act. Even though the employees at this retaurant may not have been unionized, they may have been protected under the federal law governing labor-management relations because of the collective action of the employees at the restaurant.

You also mention that the boss was in the habit of making sexually explicit comments to female employees. This goes to the how question. How was he abusive? In part through sexually explicit comments. Even if we assume that his true motivation was not gender based, the how nonetheless points to a possible sex discrimination (sexual harassment) claim.

Very often the HOW point to the WHY. That is, sexually explicit comments directed to female employees but not male employees suggest that the conduct is motivated by gender. The boss may profess that this is not true, but his actions speak to the contrary conclusion.

posted Dec 8, 2003 2:40 PM [EST]