Answers Posted By David M. Lira

Answer to An employee terminated for just cause is accusing me of age and race discrimination

When You Are Accused of Discrimination or Harassment

The more usual situation is when a supervisor is accused of sexually harassing a subordinate employee.

In the past, what often hapened to this supervisor is that he (it was usually a he) got fired. The employer's thinking its usually that this is the easiest and cheapest thing to do. But an employer might decide to keep the accused supervisor is this supervisor is particularly productive for the employer.

Not long ago, there was an unusual case in the U.S. Court of Appeals for the Second Circuit, which suggested that accused supervisors might have an avenue for getting a remedy if an employer raskly acts on a false accusation. Personally, I have a lot of doubts that this case is going to have any degree of influence, but you never know.

So, my general advise is cooperate with the employer's investigation of the accusations of discrimination or harassment. Otherwise, you will have no avenue of relief at all.

An accused supervisor might have a claim against the accusing subordinate for defamation. But the complaints are likely to be considered at least qualified privileged, that is, protected by the law. As a result, any defamation claim would be very, very, very difficut to win.

posted Apr 10, 2008 05:05 AM [EST]

Answer to Severance trick

Severance Pay Generally

Generally, in New York State, you have no right to severance pay. If an employer has a regular practice of paying severance, that may fall into an exception under federal law to the general rule. Some employers have formal written policies concerning severance. Severance with these employers may also fall under the exception under federal law.

The term "severance" is intended to cover a type of renumeration beyond weekly earned wages or earned leave. If an employer includes unpaid wages or unused leave in a severance package, that probably isn't a problem. However, an employee would be entitled to unpaid wages and earned but unused leave even though the employee is not entitled to severance pay.

Similarly, an employee would be entitled to unpaid commissions or bonuses, provided that they are also considered earned. Whether they are earned depends on the employer's practices and policies. With respect to commissions, there is a law saying when commissions are earned, if there is no employer policy. Frankly, the law favors the employer.

Generally speaking, vacation leave is considered earned, and sick leave is not. However, whether you are entitled to payment of vacation or sick leave on your leaving an employer depends on the employer's practices and policeis.

posted Apr 8, 2008 08:50 AM [EST]

Answer to Non-Compete After Transfer to New Company

Change an Employee to Independent Contractor

Non-competes are hard enough to get enforced when the employer does everything right. If an employer does something wrong, it may become impossible for employer to get a non-compete enforced.

One of those things that may make a non-compete unenforceable is changing an employee's status to an independent contractor, that is, from a W-2 to a 1099. Almost by definition, independent contractors are free to work for multiple companies in the same market. So, in changing an employee to an independent contractor, an employer is in effect giving the now former employee the permission to compete.

But a note of caution, when it come to contracts of any kind, no attorney can comment on the enforcibility of any provision without actually looking at the entire agreement.

posted Mar 24, 2008 12:58 PM [EST]

Answer to getting out of a non-compete agreement.

Getting Out of a Non-Compete

When people come to me with employment agreements with non-compete provisions, I often warn them that they may be buying a lawsuit.

On the other hand, I also have to say that employers do not have to have a non-compete to sue a former employee for improperly taking proprietary information from the employer. Further, it is not unusual for an employer to do nothing even though an employer has a non-compete with a former employee.

The fact remains that New York State courts are slow to enforce non-competes, and generally will do so only when an employer is trrying to protect something which is truly proprietary.

However, non-competes still present a big risk. Although employees are likely to win a lawsuit brought by an employer on a non-compete, the win could cost the employees ten of thousands of dollars in legal fees to win.

If an employee wants out of a non-compete, my usual suggestion is generally just to leave the employer. Then the employee will wait and see if the employer does anything. If an employee does not wish to take a wait-and-see position, an employee can always bring a declaratory judgment action. In a declaratory judgment action, the employee is asking a court to decide whether the non-compete would be enforcible. A declaratory judgment action is not necessarily any cheaper than defending a lawsuit brought by an employer.

posted Mar 13, 2008 08:54 AM [EST]

Answer to 29 year public servant facing termination over new NYC law !

The Civil Service

Once upon a time, every employee of government owed his or her job to the person who held the big job, that is, the mayor, governor, president or other head of office in office at the time. When that mayor, governor, etc. left office, none of those employees had any guarantee of continued employment, and, more often than not, especially when there was a change in party, they were out on the next election.

This gave the mayor, governor, etc., a lot of power, but the people selected as employees were political hacks and often incompetent, if not down-right dirty.

About 200 years ago, New York State came up with the idea of a professional civil service. (Yes, the idea, at least in the US, started here in New York.) The idea was to select government employees on the basis of merit rather than political or personal connections. Whenever possible, merit would be determined by a test. To protect these employees from the political winds, they were to hold office, after a probationary period, permanently unless a civil service employee did something so wrong that the conduct would serve as good cause for termination. (Gross incompetence is good cause.) The idea of a professional civil service was thought to be so important, that in New York it is actually incorporated in the State Constitution.

Now, a lot of the civil service rules are based on common sense. For example, somethings, a government department has a need to fill a position immediately. The position performs a function that cannot wait until the next civil service test. Persons filling these postions until the next test are provisional employees. The employees filling the position until the next test have ALWAYS meant to be temporary employees. The fact they are temporary appointments is nothing new in the law.

A person holding a provisional position can take the test to compete for the permanent appointment. However, a provisional employee has no formal advantage over any other person taking the test and competing for the same position. (Because of the top three rule, in which a position is filled from the the three candidates with the highest score in the test, a provisional might have an advantage if he or she is among the top three candidates then being considered.)

Provisional positions have always been used improperly to get around the restrictions of the civil service, which, again, require appointment on the basis of merit rather than political or personal connections. Nassau County use to have a very big problem with it. I have known provisionals who stayed on so long that they were able to retire as provisionals.

posted Mar 11, 2008 09:17 AM [EST]

Answer to compressed work week

Not for Profit Employers

All employers, whether for profit or not for profit, are subject to the same set of rules governing wages and hours. Only governmental employers are exempt from certain, but not all, rules.

posted Feb 11, 2008 09:57 AM [EST]

Answer to travel expense reimbursement for a W2 employee

Relocation costs/Commuting Expenses

There is no law, federal or New York State, requiring an employer to reimburse relocation expenses. An employer could be held liable for relocation expenses only if the employer has agreed to payment of such expenses.

Although I have yet to see a case on this, generally, an employer is required to reimburse employees for expenses incurred by the employees for the employer's benefit. Thus, if you worked at an ice cream stand, and, at the employer's direction, you went out an purchased more ice cream to sell at the stand, and if you paid for the ice cream out of your own pocket, your employer would be obligated to pay you back for the cost of the ice cream. You would also be entitled to other expenses incurred in getting the ice cream, such a tolls you had to pay to get to and from the ice cream distributor.

But not every conceivable cost that an employee might incur in connection with a job is necessarily an expense incurred for the employer's benefit. For example, your employer might have a dress code. After you are hired, you may need to buy an entirely new wardrobe. You would not be entitled to reimbursement for the cost of the new wardrobe.

Generally, an employer is not obligated to pay employees for time and expenses incurred getting to and from work (commuting expenses). This can create a lot of confusion. For example, let's say you're an outside salesperson. If you went to the office first, then went to your first stop, the employer would be obligated to pay for your time and expense between the office and the first customer. That you not be considered commuting. But if you travelled from home to your first customer stop, that would be commuting, and the employer would not be obligated to pay your time and expenses in that case.

Please note that the attorneys answering questions on this website cannot give specific answers to specific situation posed by members of the public. We use the basic factual situations presented by questions to provide general answers.

If you require an answer specific to your situation, you should set up a consulation with a qualified attorney. You could be charges a fee for such a consultation.

posted Feb 8, 2008 12:17 PM [EST]

Answer to Verbally Abusive boss.

The Verbally Abusive Boss

Studies of the workplace pretty much show that the bad boss, including the abusive boss, is bad for business. Although bad for business, there isn't much employees can do about the abusive boss.

Under the employment at will doctrine, you have no right to be free of workplace abuse. Under the common law, your primary option is to quit, with or without notice.

The best protection against workplace abuse is probably unionization. In some cases, other laws might help.

Abusive bosses are bullies. Bullies usually look for something about you to use against you. Sometimes, they pick the wrong thing.

For example, you may have an abusive boss who truly is not prejudice against women. Nonetheless, that abusive boss might be tempted to use terms derogatory of women. Although I am sure there are attorney who will disagree with me, even though the employer can prove that the abusive boss is not prejudice against women, the use of terms derogatory towards women, if frequent and bad enough, might still constitute sexual harassment under Title VII of the Civil Rights Act of 1964 (or under the New York State Human Rights Law).

My experience tells me that putting up with an abusive boss only means that you can expect further abuse. Sure, a complaint might result in an employee getting fired for complaining, but at least that employee is now free of the abuser. So perhaps, the possibility of retaliation might not be such a bad thing.

Employers faced with complaints about an abusive boss have to proceed cautiously. Even if we assume that a complaining employee will never, ever, be able to provide illegal discrimination or harassment, illegal retaliation is much easier to prove. As a result, if an employer fails to handle employee complaints about an abusive boss carefully, the employer might create a successful employee lawsuit where one did not exist before.

posted Feb 6, 2008 09:39 AM [EST]

Answer to New Uniform Policy--Is company responsible

Uniform Allowances

I can't say whether there are states out there that may have different rules. I can only say that I know of no federal or New York State law requiring employers to provide an uniform allowance. There are cases where dress codes have raised issues under other laws, such as Title VII, but none of these cases say that an employer has to give employees a certain amount of time to comply with a new dress code. So, applying the employment at will doctrine, it looks like an employer can demand immediate compliance with a new dress code, and is not required to provide employees with a uniform allowance. Uniform allowances can be a subject for collective bargaining, another reason why unions are beneficial to employees.

posted Feb 5, 2008 09:21 AM [EST]

Answer to Non-competition contract & courts

Court re-writing contracts

There is lots of case law out there saying that courts should avoid re-writing contracts for the parties. Despite all that case law, it does happen, but I would never rely on that.

posted Apr 3, 2007 07:22 AM [EST]