Answers Posted By David M. Lira

Answer to Descrimination and/or non-payment of "Incentive Bonuses"

National Origin vs. Nationality

Things get tricky when you are dealing with a foreign employer because treaties may come into play that alter how US anti-discrimination law is applied.

Generally, when dealing with a foreign employer, there is a distinction made between nationality and national origin. It is OK to discriminate based on nationality. That is, the foreign employer is free to give preference to, say, the German national over the more qualified US national. However, discrimination based on national origin would still be improper. That is, if we assume two employees are US nationals, but one is of German origin and the other is not, the foreign employer may not discriminate on nothing more than that.

Although all employment relationships are contractual, unless otherwise specifically agreed to by both the employer and employee, all employment relationships are at will, meaning the terms of employment can be changed at any time, for any reason. So, the likelihood is that a bonus program termed "incentive payments" will not create an obligation for the employer to actually pay bonuses. There might be exceptions to this under highly unusual facts that might give rise to what attorneys would call an ERISA plan.

posted Sep 9, 2003 4:09 PM [EST]

Answer to Competition/trade secret issues

Competing Against Ex-Employers

First, we need to understand that it would be entirely inappropriate for an attorney to give any person advice about a specific situation in a public forum like MELS. There are a number of reasons for this, including waiving attorney-client privilege, and tipping your hand to the other side in litigation. After all, there is no filter on this website preventing employers from viewing its content.

So, to provide a general answer to your query, there are some basic policies behind the law on employee non-compete agreements. One policy is that favoring a competitive market place. Businesses often like to extoll the virtues of the competitive market-place. But, from my experience as a former antitrust attorney with the federal government, most of the extolling is just for show. Businesses really hate competition, unless, of course, your business happens to be the top dog in a particular market which isn't particularly competitive. As translated into the employment area, this government policy favoring competition means that court hate to do anything that would prevent a new competitor (that is, former employee) from entering the marketplace.

Another strong policy behind non-compete law is that government should avoid doing anything which creates an obstacle to someone earning a independent livelihood. We want to do as much as possible to prevent you from ending up on our welfare rolls. So, courts have generally looked with disfavor on non-competes in employment agreements because non-competes prevent former employees from earning a livelihood in a field in which they have recent experience.

Another policy working in this area is the policy fostering innovation. This policy actually favors employers. (But it can also help innovative new competitors too.) It is in part embodied in laws such as the patent laws and the copyright laws. But the policy protects only true innovations.

Face it, starting any business requires a lot of work and investment. And it is risky. There is no guarantee that your business will succeed. You would like to protect your work and investment, but the fact is that most of that effort is not really unique or innovative. In other words, few business efforts are so special that courts will grant it any kind of protection. As a result, though courts will protect certain efforts made by an employer in developing and maintaining a business, those efforts have to be pretty special before they get that protection.

The upshot of all this is that, without a non-compete agreement, an employer has very, very little chance of preventing a former employee from starting a competing business. Even with a non-compete agreement, the employer will have an uphill battle against the former employee.

Now, that talks about end results. That is, in the end, former employees usually win lawsuits in which employers try to prevent those employees from competing against them. But this does not prevent employers from bringing the lawsuits to begin with. In other words, the employee usually wins, but only after having to pay the costs of a lawsuit.

The fact is that anyone can sue anyone else for anything. A lawsuit is the procedure for determining whether that anyone really has a valid claim. So, yes, you can be sued by your former employer, but that says little because you can be sued by anyone for anything anyway.

Under the American rule, each party pays their own costs. There are few exceptions to this rule, and there is nothing specific to employee non-compete litigation which would make the former employer responsible for the former employee's costs. Although in theory, there may be ways for a former employee to recoup the costs of a non-compete lawsuit, the likelihood is that the former employee will have to foot the bill for the litigation on his or her own.

posted Sep 5, 2003 08:45 AM [EST]

Answer to ADA not protecting my rights??

Bi-Polar Co-Worker

If you wish to the situation you are in harassment, ok. But you have to understand that workplace harassment is not illegal. Only certain forms of harassment are illegal. Those forms of harassment that are illegal become illegal because the conduct is motivated by the membership of the victim in a class of people specifically protected by law. Thus, harassment of a person with a disability is illegal if it is undertaken because that person has a disability. Harassment of a woman becomes illegal is it is undertaken because that person is a woman. But the case of a person causing you trouble because that person is angry with you for a real or perceived offense would not be illegal. At least, it is not something that your employer would be responsible for.

The situation you describe to me is another example of employers handling workplace situations badly, probably because they have been fed a lot of misinformation for years from management attorneys. But, as far as the law is concerned, there is nothing wrong with employers handling workplace situations badly.

The Americans with Disabilities Act does not protect people in general from situations involving people with disabilities. That is, you have no rights under the ADA. Interesting, I have doubts whether your co-worker is protected by the ADA, although she would almost certainly be protected by the New York State Human RIghts Law and the New York City Human Rights Law.

posted Aug 25, 2003 4:28 PM [EST]

Answer to MA or NY

Choice of Law

To determine the state whose laws will be applied, first look to the agreement itself. If the agreement says nothing about the choice of law, then the state whose law will be applied is the state where the employee worked. That is, the location of the employer is not necessarily key. Usually, the state where the employee worked is the state where the employee lives, but the state of the employee's residence is not necessarily controlling.

Note that other considerations can enter into the question of choice of law, so that it is possible that the answer can be different.

Choice of law issues are very complicated. Law schools actually offer a complete course just on this question.

posted Aug 4, 2003 10:32 AM [EST]

Answer to I signed a non-compete with a software company.

Two Questions Need to be Answered

Whether your taking a job with the second company VIOLATES your agreement with the first company really depends on the precise wording of the agreement. Because I don't have a copy of that agreement in front of me, I really cannot give you an answer. But, based on your discription of the contents of the agreement, it sure does sound like the new job would violate the agreement.

However, you shouldn't stop there. You also need to ask whether the agreement is ENFORCEABLE. Again, I would need to know more in order to answer this second question, but, because of what I know of the law on non-compete agreements, particular in employment, I would have doubts that the agreement is enforceable.

Do you see the distinction? You violate the agreement if you do something which is contrary to what the agreement says. But an agreement can be unenforceable even when your actions clearly violate the agreement. If an agreement is unenforceable, your violation of the agreement becomes irrelevant.

posted Aug 4, 2003 10:04 AM [EST]

Answer to UNLAWFUL TERMINATION OF MOSTLY MINORITY WORKERS FOR THE WORK FORCE OF THE CITY OF NEW YORK

The Authority of NYC to Lay-off Public Employees

WARN is designed to address the situation where an employer closes a plant. Only in a limit, indirect way does it address a mass layoff. So, given what you have told me, I don't know whether the layoffs violate WARN.

There is a legal theory in dicrimination law called "disparate impact." Disparate impact cases are proven by showing that a particular action (for example, a layoff or reduction in force) affects a protected class (race, national origin, etc.) more than the general population, for example. However, the statistics must be such that other explanations are not possible. So, there is more to be asked about your second questions about discrimination.

In New York State, including New York City, civil service employees have a property right in their jobs (unlike private sector employees) not because of union membership, but because of the working of the Civil Service Law, which restricts the circumstances under which civil service employees can be fired. However, this property right does not mean civil service employees cannot be fired. They can be fired en masse, and without each one separately being accorded due process rights.

The New York State Civil Service Law limits the duration of the tenure of a provisional employee. However, I would say the law is very commonly violated. Interestingly, in New York, any taxpayer could, in theory, challenge each particular instance of a violation of the Civil Service Law by starting an appropriate proceeding in New York State Supreme Court. However, getting a provisional employee fired would not necessarily help a permanent employee keep his or her job.

What is morally repugnant depends on your point of view. That is why the law tries to avoid making decisions based on vague, shifting criteria like "morally repugnant." If there is nothing in the law prohibiting an act, a judge will not and cannot prevent it even though the judge may believe the act is wrong. This is how the law hold a civilized nation together, in its limitation on power.

posted Jul 28, 2003 09:59 AM [EST]

Answer to defamation

Is it enough?

Defamation is really a difficult thing to prove in the U.S., in large part because of the First Amendment's guarantee of freedom of speech. (How the First Amendment fits into this is really a complicated issue in and of itself.) So, in the U.S., the law of defamation has evolved in such a way that not all statements, even false statements are defamation.

First, opinions are not defamation. The statement that you have no people skills seems to be a statement of opinion to me, though others might disagree.

The other statements seem to be statements of fact, which can be defamation, and they seem to imply that you are a thief, a serious accusation. So, it seems you might have a defamation claim.

Whether you should bring a defamation lawsuit is another matter. The answer to that question is largely an economic question. That is, would it be worth your while? Take note that an attorney is not very likely to take a defamation case on a straight contingent basis.

posted Jul 25, 2003 10:03 AM [EST]

Answer to NON-COMPETE

Sign or Get Fired

With some types of documents, evidence that a person was coerced into signing that document would make that document not enforceable. In New York, in dealing with a non-compete in an employment agreement, I doubt that the coercive element alone would make the non-compete not enforceable.

Similarly, I doubt the fact that the employer has a tendency of not honoring its agreements will render a non-compete agreement unenforceable. The general rule of contract law is that the contract is enforceable if that contract, not any others, meets certain very minimal requirements. What goes on with other contracts is irrelevant.

But, even without knowing anyting about the job and the industry involved, I can say that there is a good chance that your husband's non-compete is not enforceable under New York law. New York law generally disfavors non-compete agreements in employment contracts.

But, if you are looking for an attorney to give you an opinion letter that your husband's non-compete is not enforceable, I doubt you will get it. At most, you'll get an opinion that it probably isn't enforceable, and I certainly would not give you such an opinion without thoroughly reviewing your husband's particular situation. If I did not do that, and the employer then sued you and won, I'd be involved in a malpractice claim, and deservingly so, because not all non-compete are unenforceable.

If you want a piece of paper saying that a particular non-compete is definitely not enforceable, you would have to go to court and start a declaratory judgment action. The aim of such an action would be to have a court say that the non-compete is not enforceable.

posted Jul 24, 2003 09:16 AM [EST]

Answer to non-payment of wages

Employer REfuses to Pay for Time Worked

You have three option, largely depending on the amount of money involved:

1- If you are owed $600 or less, you can contact the New York State Department of Labor.

2- If you are owed I think it is $1,500 (the maximum limit of small claims), you can sue your former employer in Small Claims Court.

3- If the amount owed is more than the amounts noted above, you can sue your former employer for the wages. Depending on the amount, you would go to District Court (Suffolk or Nassau counties only) or Supreme Court.

Under the New York State law under which the employer is required to promptly pay wages, you might be able to get attorneys' fees, that is, if you win, your former employer gets to pay the fees of your attorney. So, if you are owed more than the small claims amount, it might be worthwhile contact an attorney to handle your case.

posted Jul 21, 2003 4:49 PM [EST]

Answer to Non-Compete Question

Employer Wants to Avoid COnsequences of a Non-Compete

The way I read this query, it is from an employer, rather than an employee.

The first thing to remember is that the non-compete agreement is between the employee and her ex-employer. The new employer is not part of the agreement, and not bound by it. This provides the basis for the new employer's first option.

Ex-employers, seeking to enforce non-competes against ex-employees, often sue not only the ex-employee but also the new employer. There is "legal" justification for this move -- because the ex-employer will typically want an injunction against the ex-employee, the court may have to have the new employer involved to enforce any injunction it might issue. But, more often than not, the ex-employer brings in the new employer into the lawsuit because the new employer's reaction is typically to fire the employee. Because the new employer is not part of the non-compete agreement, this action automatically eliminates any reason for the ex-employer bringing the new employer into court.

Of course, the new employer might want to pre-empt the ex-employer from ever dragging the new employer into court. In this case, the new employer can fire the employee as early as possible. Of course, this assumes there are no other contractual restrictions between the new employer and employee.

Sometimes, however, the new employer wants to keep the employee. In this case, there is another fact that the new employer might want to keep in mind. That is, courts tend to be very skeptical of non-competes in employment agreements, and tend not to enforce them. (Courts have an entirely different attitude about non-competes in contracts for the sale of a business.) Ex-employers know this, and, very often, never bother to enforce the non-compete. In other words, doing nothing is a viable option.

There is, however, no guarantee that this will work. If it doesn't, than the worse that will happen is that the ex-employer sues the employee, and brings in the new employer for good measure. This result really isn't much different than a third option, which is for the employee, perhaps financed by the new employer, to bring a declaratory judment action against the ex-employer. That is, the third option is to start a pre-emptive lawsuit. The aim of a declaratory judgment action would be the same as the basic defense in an action brought by the ex-employer against the employee and new employer. That is, the aim would be to show that the non-compete is not enforceable under New York State law.

In my experience, employees will more often than not be able to convince a court that their particular non-compete is not enforceable. That is, employees usually win. But whether a particular employee will win will depend on the details of the agreement, the nature of the employee's work with the ex- and new employers, and the nature of the markets served by the ex- and new employers. These are highly fact specific inquiries.

Again, a new employer's options are:
1- Fire the employee to dodge any kind ot trouble
2- Do nothing, and wait to see if the ex-employer does anything
3- Have the employee start a lawsuit against the ex-employer for the purpose of having the non-compete declared invalid.

posted Jul 21, 2003 10:08 AM [EST]