Answers Posted By David M. Lira

Answer to Full Time Offer at Consulting Client

The Ultimate Issue

The ultimate issue will be whether the covenant not to compete is enforceable. New York courts do not like covenants not to compete in employment agreements, so that the employee is usually in the better position, but whether an employee will win a lawsuit testing the covenant will depend on the facts: what was the job? What is the industry? And more.

Can you go to work for this client? Yes.

Can the client hire you? Yes.

Can A and C sue you and the client on the non-compete? Yes.

Will A and C win the lawsuit? Don't know. I don't know enough, but the law seems to side with you.

posted Oct 22, 2003 09:04 AM [EST]

Answer to Discrimination By Retaliation

You Have Few Rights

You probably don't have a case.

Because New York is an employment at will state, employees really have few rights. Because of that, employers can basically do whatever they want.

There are, of course, a number of significant exceptions, such as the anti-discrimination laws, and the anti-retaliation laws. But you have to understand that not all forms of discrimination or retaliation are illegal. Only certain forms of discrimination and retaliation, as defined by statute, are illegal, and I just do not see how you fit into any of those statutes.

posted Oct 21, 2003 10:58 AM [EST]

Answer to New York State Civil Service Law.

USing Age as a Selection Criteria

I am not exactly sure what statutory provisions you are talking about, so I'll give you a more generalized answer. (In any case, this forum is for general information only. If you want authoritative opinions on specific situations, you need to hire an attorney.)

Public and private employers can legally use age as a selection criteria under two circumstances: 1) if age is a bona fide occupational qualification; and 2) if age is a reasonable surrogate for testing some other qualification.

The first might be best illustrated with a show-biz example. Suppose you are producing a show which requires people of various ages. In that case, age is a bona fide qualification.

For the second, there can be cases where an employer knows that job candidates have to have certain abilities. There may be direct ways for testing for these abilities, but these alternative means may be complicated, costly or otherwise burdensome. But, scientific research shows that there is an easy, though not fool proof, way to address the need: looking at a person's age. Court's don't like employers doing this, but employers can get away with it if age looks like a reasonable way of dealing with real concerns.

posted Oct 10, 2003 10:38 AM [EST]

Answer to disciplined for not prearranging an absence (even death)

Written up for taking time off

In combining vacation and sick leave into "Personal Time Off" or "PTO," your employer might be doing something it does not have to do. Generally, vacation time is considered earned, so that, when you leave, you are entitled to take it with you as extra pay. But sick leave is normally not considered earned, so that, when you leave, you lose it. Although I haven't seen any cases on it, PTO might well allow you to take all accummulated time with you when you leave because all PTO may be considered earned. (Note that employers can limit the amount of time you accummulate. "Use or loss" time is OK.)

Generally, it seems to me that an employer can write you up and terminate you for use of PTO which is not pre-arranged, but I think there is an important exception in there related to the Family & Medical Leave Act (FMLA). If you take unanticipated time off for an illness covered by FMLA (generally a serious illness), it probably would violate FMLA. I haven't seen a case on it, but I think there is a good argument that the write-up would violate the law. But again, only if you take time off because a serious illness suffered by you or a family member.

posted Oct 10, 2003 10:21 AM [EST]

Answer to unpaid wages

Unpaid Wages

The New York State Department of Labor will probably not get involved in your case, because it involves too much money. They'll get involved only in small claims. I think the limit is $600.

So, you'll have to sue. You can go even to small claims court, if the amount involved is small enough. You don't need an attorney.

If you decide to hire an attorney. Make sure you have one who knows something about employment law. A lot of attorneys will look at the case as a simple contract action, and it is. But it is more.

Under New York law governing the payment of wages, you can get attorney's fees. That is, if you win the court will award an additional amount to cover the attorney's time. This is designed to encourage attorneys to represent employees in these wage claim cases.

In addition, you are entitled to liquidated damages, that is, an additional amount to cover the cost of the delay in payment, and as a penalty to the employer. Liquidated damages under New York law is 25% of what is owed.

I would certainly want to screen you to determine whether you are entitled to overtime. The inquiry can be detailed. If you are interested, call me.

Freelancers are not even employees, so that are not entitled to overtime. Employers a lot of times think they can escape overtime by labeling an employee a salaried employee. Well, it isn't that easy.

Under the federal law governing overtime, the Fair Labor Standards Act, there are two classes of employees, exempt and non-exempt. Employees are considered non-exempt unless they fall into a category of exempt employees. The three major exemptions (there are others) are for management, administrative and professional employees. Exempt employees are not entitled to overtime.

The Bush administration wants to make it tougher for employees to get overtime, by redefining employees so that more are considered exempt. The proposed regulations have been greeted negatively by Congress. With some luck, and a few calls from enough people, maybe those regulations will die in Congress.

The inquiry I would want to make is whether you fall into an exempt category. Even if you fall into an exempt category, I would want to inquire whether the employer has done anything taking you out of the exempt category.

I'll give an example. Attorneys would usually be considered to be in the exempt category for professionals. So attorneys are usually not entitled to overtime. But suppose we had a law firm that required its attorneys to show up at the office at a particular time, and stay to a particular time. The attorneys had to punch in and out, and, if they were late for, say, 15 minutes, they would be docked 15 minutes of pay. Well, in this case, those attorneys would fall out of the exempt category, and would be entitled to overtime, just like the secretaries in the office.

If you are entitled to overtime, FLSA entitles you to liquidated damages equal to the amount of overtime owed (in effect, you get twice what is owed you). In some cases, you can get double liquidated damages (that is, triple what is owed). In addition, you get attorney's fees. You can bring a lawsuit not only covering you, but also covering all other similarly situated employees.

posted Oct 3, 2003 09:29 AM [EST]

Answer to verbal abuse and disrespect do we have to put up with it ?????

Intentional Infliction of Emotional Distress

"Intentional Infliction of Emotional Distress" is a legal theory which is recognized by courts in New York State. However, it involves a fairly high level of proof. You would have to prove a fairly outrageous course of conduct that is beyond the bounds of common decency. (I am not trying to give you the precise legal standard, but to give you an idea of what is required.)

This theory of liability would also have a major drawback. You would likely be able to apply it only against the supervisor, and not your employer. This theory is considered an "intentional tort." It is very difficult to hold an employer responsible for the intentional torts of it employees. (Employees had tried to use this theory to attack discrimination, without much success. It was one reason why the anti-discrimination laws were needed.) To get the employer, you would have to show that the employer had a policy at least encouraging, if not requiring, the type of behavior the supervisor engages in.

If you go only against the supervisor, there is no guarantee that the behavior will stop. That is because this legal theory is a legal theory. That means you would likely only be able to get damages for past behavior. You would likely not be able to get a court order to prohibit continued behavior. Court hestitate issuing things like injunctions because that requires their continued involvement in a dispute. Generally, to get an injunction you have to meet a very high level of proof, or fall under some statute which lowers the burden of proof for you.

A money judgement might not mean much to this supervisor. He might be what attorneys call "judgment proof," because he may have few assets against which a money judgment can be enforced.

posted Sep 19, 2003 09:02 AM [EST]

Answer to do i have any legal rights to sue my employer or union

An Abusive Boss Where There is a Union

Although it is generally true that, under the employment at will doctrine, employees have to just put up with an abusive boss, there are exceptions. The exception that employees hope they fall under is in the anti-discrimination laws. But that exception proves to be narrow, because you have to be able to show that the motivation behind the abusive behavior is the employee's membership in a protected classification defined by things like race, religion, gender, etc.

Another important exception has to do with unions and collective bargaining agreements (CBA). Although referring to the CBA is absolutely essential, in most situations, unions will have the right to bargain with the employer (or grieve) the conditions of employment. Conditions of employment would include how emotionally abusive the workplace is. That is, I would say that employees who are union members would usually have the right to grieve a hostile work environment created by an abusive boss. In this case, you would not have to worry about motivation, and membership in protected classes.

The trick, however, is getting the union to act. Sometimes that can be difficult to do. Here, a number of things might help, and not all of them are steps dictate by some law. It helps to be active in the union. If the shop stewart fails to do his or her job, go over that person's head to the next highest official in the union. Go up as far as you have to until you get some action. It helps if you have a group of people doing this, as opposed to just one person.

If the union is really lazy, you might vote out the current shop stwart and other union officials in the next election. You could even threaten the union with bringing in another union. In short, union membership is political. To get things done, you have to be active.

It also helps to know the process. It may not, for example, be enough to just speak with the shop stewart, or union rep. You may have the misfortune of having particularly lazy ones. You may need to file a formal grievance to get them going.

Because you are a dues paying member, your union has a duty to fairly represent you. If it fails to do so, you could potentially sue the union. But, at least in the private sector, the statute of limitations on these types of lawsuits is very short, like 3 or 4 months, I forget exactly how long. (If you are a member of a public employee union in New York State, the statute of limitations would be 6 years.) And in any case, winning these types of lawsuits is very hard. You might increase your chances of winning by showing that you did everything you could to get the union to act. Even then, you might not always be able to successfully sue your union.

posted Sep 19, 2003 08:44 AM [EST]

Answer to Career assassination?

The Issue is Motivation

Interesting that you bring up race and gender as a last thought. I guess you are hinting at a discrimination argument. However, simply because you are female and a member of a minority group does not, by itself, give you any special rights. I know a lot of think that, but it isn't true.

The key issue is motivation. That is, if you are experiencing difficulties in the workplace, the key issue is what is motivating the person or persons creating the problem. If the motivation is in part your race or gender, or other protected classifications, such as religion or national origin, then you have a type of discrimination that is protected by law.

Notice I said "a type of discrimination." I said it that way because not all forms of discrimination are illegal.

In a general sense, what is happening to you might be described as discrimination, but it isn't necessarily the type of discrimination that is illegal.

Note I said "necessarily." That is because the question of whether there is illegal discrimination going on is a very fact oriented question. I cannot rule out that there may be illegal discrimination happening to you, but I can say that the way you present your situation in your query, there doesn't seem to be illegal discrimination.

This is an important point to make because an employer does have an obligation to protect employees from illegal discrimination, but, if something that might be called discrimination is not illegal, then the employer has no obligation to protect you from it.

Thus, to answer your original question about baseless character assassination, the employer has no responsibility.

posted Sep 15, 2003 08:49 AM [EST]

Answer to Think they know they are in wrong

What to Do When Sued

First, have you filed an answer? If not, watch out, because your former employer can get a default judgment against you that can have all kinds of negative consequences for you.

Second, to answer your question, an attorney would at the very minimum need to see two things: 1) the contract, and 2) the complaint in the lawsuit.

I strongly suggest that you invest some money, and speak to a qualified attorney in the field of employment.

posted Sep 15, 2003 08:30 AM [EST]

Answer to right to a confidential recommendation letter

No right to a letter of reference

Employees have no right to obtain a letter of reference from a former employer or a supervisory employee still with that former employer.

As to a manager's right to provide a reference to a former employee, that seems to be more complicated. Although I can see some argument in favor of the manager, I doubt that any court would go along with it, given New York's employment at will doctrine.

posted Sep 9, 2003 4:20 PM [EST]