Answers Posted By David M. Lira

Answer to Non payment of Services

Non-Payment of Wages

Under New York State law, employers have a clear obligation to pay their employees promptly. Although employers will sometimes tell employees on HIB visas that they do not have the same rights as employees who are citizens or permanent residents of the United States, that simply is not true.

If an employer fails to pay wages, its employees can sue for those wages. This is often done in small claims court, although, if the amount is great enough, you might have to go to Civil or District Court, or Supreme Court. If the amount involved is small, you can ask the New York State Department of Labor to help. I have heard that employees on H1B visas might even get help from the INS.

The New York law provides for attorneys' fees. That is, if you win, the employer might end up liable for your attorneys' fees. New York law also provides for an add-on (a kind of a penalty) called liquidated damages. Liquidated damages are paid to the employee.

posted Jul 17, 2003 08:49 AM [EST]

Answer to can female boss discriminating female employee be still dicrimination

Same Sex Discrimination

The U.S. Supreme Court decided in a case involving men that it is possible to have a case where the harasser and the people being harassed are of the same gender. The case can probably be applied where the harasser is female, or where the harasser and the harassee belong to the same race or nationality.

The trick in these cases is having enough evidence to show that the motivation is a protected criteria, such as gender, race or national origin, as opposed to some other likely not protected criteria.

posted Jun 30, 2003 5:09 PM [EST]

Answer to Termination for my Non Compete agreement

Propriatary Information

Your new employer can certainly fire you, in that you are likely an employee at-will.

As to the letter concerning propriatary information that your old employer wants, it really isn't necessary, but giving them such a letter probably would not do any harm. I don't know why so many employers do not know this, but, even without a non-compete agreement, an employer's propriatary information is protected from theft by a current or former employee.

The issue becomes what is propriatary information. Here, employers seem to want a very, very broad definition that would cover just about every piece of information you ever acquired while with teh old employer, including the location of the men's room. The law, however, will support only a much narrower definition of propriatary information, which unfortunately shifts depending on the industry involved.

Although you did not say so, I take it that your old employer is suing your new employer basically on the basis that the new employer hired you. The assumption is that on hiring you, the new employer got propriatry information belonging to the old employer from you. Actually, this type of lawsuit is the bigger risk in signing a non-compete, because most employers will react the same way your new employer did, by firing you.

Incidentally, your old employer may have walked into a lawsuit that you could bring against it, for intentional interference with contractual relations with the new employer.

posted Jun 30, 2003 09:45 AM [EST]

Answer to Who addresses complaints of workplace violence?

Workplace Violence

The short answer is that no one agency has a clear mandate to address workplace violence.

The Occupational Health and Safety Administtration (OSHA), a federal agency, has done some work in the area, but their mandate is workplace safety, not workplace violence. Violence of course goes to the question of safety but it is not a direct connection, so that I doubt that OSHA would act very quickly, if at all, if an employee filed a complaint going to workplace violence.

The Workers' Compensation Board would address situation where a worker was injured or killed as a result of a violent incident at work. But they would address compensation for injuries resulting from workplace violence. They have no mandate to prevent workplace violence before injury takes place.

The local police and district attorney's office might be of help, but only if the conduct rises to a criminal level, and only if they feel they can gather enough proof to obtain a conviction. I would expect that they would be very reluctant to get involved at all.

If the source of the violence connected his threats to the covered protected classifications, then maybe an agency such as the NY State Division of Human Rights or the federal Equal Employment Opportunity Commission might be of help. But their mandate is to address certain forms of discrimination (such as discrimination based on race, national origin, religion, sex and disability) and not workplace violence. In addition, like the Workers' Compensation Board, they would more than likely address the issue only after the fact, that is, after the threats and violence have become a problem. They are not likely to act to prevent workplace violence.

The most likely source of prospective relief, that is, relief before damage is done, is the employer. Unless we are dealing with a civil service situation or a union situation, the employer can terminate the violent employee immediately and without notice. The employer need not build a case. The claims of employees that there have been threats of violence is alone enough to justify termination, if justification is needed. Remember, in New York State, most employees work at will. So, a justification really isn't necessary to fire the problem employee.

The only complication that I can imagine is if the problem employee's behavior is a manifestation of a physical or mental disability. But even then I think chances are that the employer would have good grounds for terminating the problem employee, but how good would depend on the details of the situation.

If we are talking about a civil service situation, the problem employee would probably have certain procedural rights, but, as long as the employer has enough incentive, I believe the employer would be able to immediately remove the problem from the workplace, and eventual have that employee terminated.

If we are dealing with a union situation, the union would have the obligation to represent the problem employee, and the problem employee would have certain rights under the collective bargaining agreement. But I doubt that a collective bargaining agreement would preclude an employer from addressing the workplace violence. Te employer just may need the incentive.


posted Jun 26, 2003 5:47 PM [EST]

Answer to possible legal proceedings

Retaliation

Generally, an employer, including the U.S. Postal Service, which, as a federal employer, is covered by a slightly different set of rules, cannot take an adverse action against an employee because that employee has made or assisted on a complaint of discrimination, including sexual harassment. This would be considered retaliation, and an employee who experiences retaliation can sue the employer under Title VII. However, whether a particular adverse employment action, such as a termination, is retaliation is a fact question requiring an examination of all the circumstances.

That you believe your termination is related to your sexual harassment complaint is a start, but the critical question that I, as an attorney who might consider your claim, would want addressed is why do you believe the two are connected. That is, what do you know about this work place that causes you to connect the two? What has the employer done when other employees had similar absences? What the anyone at this employer do or say that causes you to connect the two?

In any case, as you did when you brought your sexual harassment complaint, as a Postal Service employee, you need to contact a EEO Counselor as soon as possible.

posted Jun 23, 2003 4:27 PM [EST]

Answer to Non-Compete applies to the new company?

Assignability of Employment Contracts

Generally, unless an agreement provides otherwise, employment contracts, like other types of contracts, are assignable. That is, they can be transferred to a new employer.

posted Jun 16, 2003 09:01 AM [EST]

Answer to Employment condition changed=loss of all accrued vacation time?

Vacation Time

Generally, in New York State, accummulated vacation time is yours, and you are entitled to payment of it when you are terminated. Employers, however, are able to place restrictions on how you accummulate time, and these rules can be changed. Thus, if you were to continue in this job, the employer would be entitled to impose a new "use-or-lose" policy requiring you to use your vacation time in the year you earn it. Or the employer could put caps on the amount of time you can accummulated. For example, your employer can legitimately prohibit you from accummulating more than 200 hours of time.

But, if you have already earned the time, it cannot be taken away from you.

Note that vacation time is treated differently than sick leave. You don't earn sick leave like you earn vacation time. When you are terminated, the employer has no obligation to pay out your accummulated sick leave. (Note that there may be an exception to this general rule for certain public employers.)

posted Jun 12, 2003 09:19 AM [EST]

Answer to Non-compete & severance

Sometimes They Are Enforceable

Courts in New York State do not like non-compete provisions in employment agreements, and employers have a tough row to hough to get one enforced. However, the distaste that New York courts have for employment non-competes does not mean they are never enforceable.

Frankly, I cannot say whether your ex-employer has a claim against you on the non-compete. I need to know a lot more. But I can say that because you were paid money over and above your regular pay, and because the employer took the time to narrow the non-compete to specific customers, the employer's likelihood of success is higher than with many other types of non-competes.

You are now learning the problem with signing a non-compete agreement. A lot of employment attorneys will advise you to sign, telling you that more and more employers are asking for the non-competes, but very, very few actually enforce them. I don't give that advise. I say that when you sign a non-compete you are buying a lawsuit. And you have to question the ethics of an employer who has employees sign a legal document that the employer knows is likely not enforceable. Why do you want to work for someone whose ethics you can't trust?

You may well have bought yourself a lawsuit. Now, you may have to pay, either the ex-employer or an attorney to defend you in the lawsuit. You may find yourself out of a job as well.

Good luck.

If you want to more thoroughly review your situation, I invite you to call. The details of your situation should not be made the feed for a public discussion, which is what this website is about.

posted May 30, 2003 09:17 AM [EST]

Answer to Non Compete Agreement in New York ( IT )

Keep It Simple

If we make the big assumption that the non-compete is enforceable, I doubt that the precise nature of the relationship between ABC and XYZ will make much of a difference. The non-compete is deliberately written broadly, so that it would likely cover XYZ.

But, I have very serious doubts about the enforceability of the non-compete. NY State courts disfavor non-competes in employment agreements. Although a close examination of your position and the IT industry would be necessary, I doubt the non-compete is enforceable.

Although non-competes have become almost standard practice in the IT industry, I have yet to see a case saying that employment non-competes in IT are enforceable.

posted May 28, 2003 10:29 AM [EST]

Answer to Non-Compete: termination /delayed compensation

Income vs. Non-Compete

I doubt that the delay in payment of compensation will have any effect on the enforceability of the non-compete. Whether the non-compete is enforceable will depend on the analysis of the usual issues relating to the nature of the job and the industry. The ultimate question is whether the non-compete was reasonable. Luckily, courts in New York State tend to disfavor non-compete in employment. That is, employers have to prove a lot to prove reasonableness.

If your friend is owed commissions, he may be able to sue for them. That issue, however, technically has nothing to do with the non-compete.

The statement that your friend has no money to pay legal fees points out an inherent problem with non-competes. If you expect to fight a non-compete with the help of an attorney, you will have to come up with money to pay that attorney. In fighting a non-compete your friend cannot expect to collect any damages from his former employer. You are usually defending a lawsuit, and people defending usually don't get damages. Because we operate under what is called the American rule, your friend will be expected to foot the costs of his attorney, and not be able to collect attorneys' fees from his former employer.

posted May 23, 2003 1:40 PM [EST]