Answers Posted By David M. Lira

Answer to Discrimination case wrongly dismissed by EEOC

Where Does the EEOC Fit-in

Just about all discrimination cases involving race, national origin, religion, gender, and disability (and, in a somewhat different way, age) are covered by federal law (Title VII, and the Americans with Disabilitis Act as well as the Age Discrimination in Employment Act) and state law (the New York State Human Rights Law). The procedural details for the federal laws are different than for the state law, and the differences can be very confusing. (That is one reason why you really need an attorney to help you with discrimination cases.)

If you pursue your claim under federal law, you generally have to go through the Equal Employment Opportunity Commission ("EEOC"). The role of the EEOC is also confusing.The EEOC, however, usually acts only as a gateway.

The EEOC does not make any kind of binding determination on your case, unlike the New York State Division of Human Rights in case where employees bring claims under state law. In rare cases, the EEOC might bring a lawsuit in federal court based on your claim. But, more often than not, it is up to you to pursue your claim in federal or state court.

This is how the procedure works when the EEOC is involved: First, you bring a "charge" to the EEOC within 300 days of the discriminatory act. (Because of a quirk in the law, it is actually highly advisable to file your charge within 240 days.) After the charge is filed, the EEOC has 180 days to investigate and decide what it wants to do. After the expiration of 180 days, you can ask for ask for a "Notice of Right to Sue" or "NORTS." The EEOC might automatically issue a NORTS even before the end of 180 days. After you get the NORTS, you have 90 days to start a lawsuit in either federal or state court. The 90 days is a deadline which is generally strictly enforced.

Very often the NORTS contains words indicating that the EEOC is dismissing the claim. That is nothing to worry about, because the EEOC is not making any binding determination, and you can go to court.

When the EEOC issues an NORTS, it might issue a finding that you do have a case ("probable cause") but the EEOC has decided to do nothing about it. It could just as well as issue a finding that you have no case (no probable cause"). It could just as well give you a NORTS without making any finding. When the EEOC issues a finding against your case, the finding can be used against you, but it is not binding on what a court will do.

Although I am sure there are ways to re-open a charge before the EEOC, there is usually no reason to worry about that since you can got to court instead.

posted Dec 2, 2003 5:46 PM [EST]

Answer to Docking a full day's pay from exempt employees

The Docking of Exempt Employees

Under the Fair Labor Standards Act (FLSA), which governs the federal minimum wage, and overtime, there are two types of employees, non-exempt and exempt. Basically, employees are considered non-exempt unless they fit into an exception, which would made the employees exempt.

Non-exempt employees are entitled to overtime. Exempt employees are not.

Employers have to careful about how they treat exempt employees. If employers do not comply with existing law, exempt employees can end up being treated like non-exempt employees.

One pretty sure way for an employer to lose the treatment permitted of exempt employees is to dock exempt employees for part of a day, especially for such things as being late, leaving early or taking a bit too long on lunch or another break.

Employers may, however, dock exempt employees for full days, for things like vacation and sick leave, and even for disciplinary reasons, such as a suspension for "x" number of days.

Employers would not be permitted to dock an exempt employee a full day for being late, for example. Such conduct on the part of the employer may create further problems for the employer under the New York State Labor Law.

Here, things become very factually detailed. If an exempt employee has an on-going problem with simply being around and getting his or her work done, the employer could probably discipline the employee by docking whole days, even though part of the attendence problem is simply being late or leaving early.

On the other hand, in an isolated incident, if an exempt employee is late by, say, an hour one day because of car trouble, the employer would be asking for trouble docking that employee a full day of pay. Th employer could end up becoming liable for the 7 hours the employee was not paid, and the employee could end up being considered non-exempting, entitling the employee to unpaid overtime going back as much as 2 or 3 years under federal law, and as much as 6 years under New York State law.

posted Nov 25, 2003 3:38 PM [EST]

Answer to Docking a full day's pay from exempt employees

The Docking of Exempt Employees

Under the Fair Labor Standards Act (FLSA), which governs the federal minimum wage, and overtime, there are two types of employees, non-exempt and exempt. Basically, employees are considered non-exempt unless they fit into an exception, which would made the employees exempt.

Non-exempt employees are entitled to overtime. Exempt employees are not.

Employers have to careful about how they treat exempt employees. If employers do not comply with existing law, exempt employees can end up being treated like non-exempt employees.

One pretty sure way for an employer to lose the treatment permitted of exempt employees is to dock exempt employees for part of a day, especially for such things as being late, leaving early or taking a bit too long on lunch or another break.

Employers may, however, dock exempt employees for full days, for things like vacation and sick leave, and even for disciplinary reasons, such as a suspension for "x" number of days.

Employers would not be permitted to dock an exempt employee a full day for being late, for example. Such conduct on the part of the employer may create further problems for the employer under the New York State Labor Law.

Here, things become very factually detailed. If an exempt employee has an on-going problem with simply being around and getting his or her work done, the employer could probably discipline the employee by docking whole days, even though part of the attendence problem is simply being late or leaving early.

On the other hand, in an isolated incident, if an exempt employee is late by, say, an hour one day because of car trouble, the employer would be asking for trouble docking that employee a full day of pay. Th employer could end up becoming liable for the 7 hours the employee was not paid, and the employee could end up being considered non-exempting, entitling the employee to unpaid overtime going back as much as 2 or 3 years under federal law, and as much as 6 years under New York State law.

posted Nov 25, 2003 3:35 PM [EST]

Answer to Character defamation?

Defamation is Hard to Prove

In New York State, defamation cases are a lot harder to prove than most people think. First, you need to know exactly what was said, to whom and when. Then, not everything that might be said about you that is negative is defamation. For example, being called lazy, even ina written reference, is probably not defamation because it is an opinion. You generally cannot sue someone based on that person's opinion.

posted Nov 24, 2003 08:55 AM [EST]

Answer to non-compete extremly vaige

No Maximum Limit

There is no maximum limit on the duration of a non-compete provision, but New York courts hesitate enforcing most non-compete agreements involving employment. The longer the term of the agreement, the less likely a court will enforce it. You can challenge the validity of an employment agreement with a non-compete provision by bringing a declaratory judgment action.

posted Nov 14, 2003 09:31 AM [EST]

Answer to No support from corporate.

It Doesn't Have to be Nice

Generally, the abuse that a customer may give an employee gives the employee no recourse against the company. That is jsut part of the job, and there is no upward limit on the abuse.

One exception that I can think of at the moment would involve a customer engaging in discriminatory conduct, discriminatory in the sense of being illegal. (Remember, not all forms of discrimination are illegal.) To apply, we would usually be talking about harassing conduct, that is, harassment undertaken because of an employee's race, color, national origin, religion, gender, age or disability. Even then, the employer would not be responsible unless the employee complained of the customer's conduct, and the employer failed to do anything about it.

posted Nov 10, 2003 2:04 PM [EST]

Answer to Unjust, unfair and dishonestly laid off

Reason for Lay-Off

When you are dealing with a situation where an employer is laying-off people for economic reasons, courts are very hesitant about second guessing the basis on which the employer selects employees for termination. If an employer uses a criteria like seniority for termination, the courts become even more hesitant about second guessing the employer, because a criteria like seniority is viewed as being objective. (It is also usually easy to determine and verify.)

Courts will definitely not be receptive to an argument that basically goes "I'm a better employee than they are." Determining "better" is very difficult to do, and courts know they are not very good at doing something like that.

Besides, there is the employment at will doctrine, which would allow the employer to fire an employee even if everybody agrees an employee is the best. The law permits employers to make bad decisions. Employees don't get any protection simply because an employer makes a bad decision.

To have any chance of succeeding on a case involving a lay-off, you will need to show that the selection criteria was infected by some motivation made illegal by law. That is, the employer says one thing, but the evidence actually shows the employer wanted to do something else.

One example might involve race discrimination. That is, the employer says employees were terminated based on seniority, but, if you gather the evidence and look at it, the employer's real reason was that someone wanted to get rid of as many employees belonging to a particular race as possible.

That is one example. Many others can be raised. But you see what we are talking about. Maybe you have something if you believe the employer is lying, and has an ulterior motive in selecting certain employees for termination.

posted Nov 3, 2003 09:10 AM [EST]

Answer to Severence pay presedents

Right to Severance

Normally, terminated employees have NO right to severance. However, in certain cases, where the employer has developed a custom and practice of paying severance according to a specific formula, a court might recognize the existence of a "de facto" severance plan. If that happens, then employees might have a right to severance. BUt claims of this kind are very difficult to succeed on.

posted Nov 3, 2003 08:48 AM [EST]

Answer to cut in pay legal without notice

Pay Cut without Notice

Because of the employment at will doctrine, under which an employer can fire you at any time for any reason or no reason at all, an employer can cut your pay, without notice, and without reason. Conceptually, the pay cut situation is the same as the termination situation. In other words, you can look at it as your being fired from your higher paying job, and being offered a new, lower paying job.

However, if you worked a pay period believing you were being paid at the higher rate, then learned only by looking at your paycheck that you rate had been reduced, then you would probably be able to sue for the difference between the higher and low rate, but only for that pay period, or those pay periods, during which you were unknowingly working at the lower rate. Your best bet in that situation would be to go to the NYS Department of Labor for assistance. But note, the difference has to be no more than $600. Otherwise, you can sue, including in small claims court.

posted Oct 27, 2003 08:59 AM [EST]

Answer to Non Compete with No End in Sight

Broad, Punitive Non Compete Agreements

Unlike most employment cases, in litigation on a non-compete agreement, the employer is more likely to lose than the employee. THe reason for this is that the courts want people who are able to work, and who can find jobs to be working, and non-compete can prevent that.

Generally speaking, an employer will have a greater likelihood of being able to enforce a non-compete if either (1) the agreement is narrowly tailored to meet the employer's legitimate interests, or (2) the employer agrees to compensate the employee for the time the employee is out of the market on something approaching a day's pay for each day the employee stays out of the market. An employer does not have a legitimate interest in reducing competition, either for customer or for skilled employees. What would be a legitimate interest would depend on the industry, the structure of the employer, and the work performed by the employee.

The big danger in non-competes for employees is being sued. Employees are likely to win the lawsuit, but it would nonetheless cost money and time (and perhaps a job or two) to fight a lawsuit on a non-compete. I usually tell employees who see me before they sign a non-compete that they might be buying themselves a lawsuit.

On the positive side is that, although it seems that an increasing number of employers use non-compete agreements, many employers fail to go as far as actually suing. There is no guarantee, but in many cases an employee can just call an ex-employer's bluff. This strategy works because employers generally know that they cannot win a lawsuit on a non-compete agreement.

posted Oct 27, 2003 08:49 AM [EST]