Answers Posted By David M. Lira

Answer to Can e-mail defame when others are included?

Defamation Isn't Easy to Prove

Defamation claims are not easy to prove in the United States. In part, this is because of the First Amendment.

In New York, to prove a defamation case you first need to know exactly what was said. Here, you apparently have an advantage because the relevant statements were written as opposed to purely oral. I assume that you have a copy of the e-mail.

But not all statements are defamation. For example, opinions are said not to be defamatory, not matter how untrue or hurtful they might be. To be defamation, a statement generally needs to look like a statement of fact. For example, "George stole $100 from petty cash on Friday," as opposed to "I have problems with George's honesty."

Also critical to whether a statement is actionable defamation is to whom the statement is being made and for what purpose. These issues get to the question of privilege. Simply stated, the law protects certain statements under certain conditions.

For example, if you make a statement which is clearly defamatory in open court, you cannot be held liable for defamation. Testimony is afforded an absolute privilege. That is, there are no exceptions to the protection afforded court testimony.

Here, the statements you are raising were apparently made intra-company, and apparently for a business purpose. Statements like this are usually afforded a qualified privileged. That is, the statement is assumed protected (you can't win a defamation claim based on the statement), but there is an exception.

The statement might lose its protection if you can show that the statement was made with malice, or reckless disregard of the truth. That is a difficult standard to meet because it basically requires you to get into the head of the person making the statement.

Discussions of an employee's performance generally involve opinion, and generally are qualified privileged, so that I doubt that the statements you are worried about are actionable. Although I would agree that it isn't wise to openly discuss an employee performance as if that were like the latest baseball scores, the problems caused by such a discuss have less to do with legal issues and more to do with staff moral.

posted May 6, 2003 08:43 AM [EST]

Answer to unlawfully terminated?

The Question is Why

There is no such thing in New York State as "wrongful termination," but your brief query suggests that your termination might have been motivated by your gender/sex. If that were the case, then you might have a sex discrimination case.

I am too far from you to be of help. If you find an attorney closer to you, then you should be prepared to answer two critical questions. First, do you believe your employer terminated you because of your gender? If you answer this first question, yes, then what makes you believe that the termination was motivated by gender? That is, what was done, or said that causes you to believe that? These are the basic questions that I need answered in just about every discrimination case that comes my way.

posted Apr 29, 2003 08:54 AM [EST]

Answer to Parent Co. Non-Compete Applicable to Wholey Owned Sub?

Form vs. Substance

You will sometimes run across a court decision which says the court will not put form over substance. That type of thought applies here. In other words, I doubt that a court will throw out an employment agreement merely because it is in the name of the parent company rather than the subsidiary.

But that does not mean you are out of luck. The law still remains that in New York, court dislike non-compete provisions in employment. In other words, whether in the name of Company A or Company B, the likelihood is that the non-compete is not enforceable.

posted Apr 16, 2003 4:19 PM [EST]

Answer to Contract relinquishing rights to unemployment insurance?

Waiving Statutory Rights

I am sorry, but I cannot provide an opinion as to the enforceability of a specific employment agreement because you are not a client.

However, many laws which give employees certain rights have specific provisions which say those rights cannot be waived. Your employer probably knows this.

Incidentally, the Fair Labor Standards Act has nothing to do with unemployment compensation. FLSA governs wage and hour issues, including overtime and minimum wage.

posted Mar 25, 2003 09:04 AM [EST]

Answer to Can I Sue Old Employer for damages to Income?

Getting Them to Stop

I can't give you any advice because you are not my client. The only thing I can do is to give a general answer to a general set of facts.

It looks like your old employer thinks it has a non-compete with you. To get them to stop their behavior, you may need to go to court to get a declaratory judgment that you don't have a non-compete, and even if you did it would not be enforceable under New York State law.

You might be able to get damages under a theory of intentional interference with contractual relations. You might also have an antitrust claim.

posted Mar 20, 2003 12:23 PM [EST]

Answer to "insubordination" to an officer of same rank.

Relative Rank Not the Issue

I hope your union is grieving the termination. If not, you should immediately start getting on the union's leadership.

Because you identify yourself as a corrections officer, I assume that you work for a government entity. If that is true, then you are a civl servent, and civil service positions operate under an entirely different set of rules than employees in the private sector. In particular, the employment at will doctrine dosn't apply, unless you are on probation.

Normally, civil service employees in New York State (excluding federal civil servants who work under yet another set of rules) can be terminate only for cause. There are various rights to notice and hearing which provide further protections. Whether there is "cause" in your situation depends on the details of the case, and is beyond the narrow question of your rank relative to this other employee.

In New York State, there is no claim for wrongful termination. Even if there was, as a civil servant, you would not pursue your claim as a wrongful termination claim. You would follow the procedures set up in the New York State Civil Service Law. In some cases, you might be able to pursue a civil rights claim under federal law for the deprivation of a property right in your job.

posted Mar 19, 2003 09:18 AM [EST]

Answer to may have signed a Non-compete in NY with big company

Enforceability of Non-Competes

In New York State, the courts generally disfavor non-compete provisions in employment agreements. That means that the agreement is likely not enforceable, but it does not mean it is definitely not enforceable. Whether it will be enforceable depends on the details. In your case, details such as who the customers are, and how are they found might be important.

Although a non-compete is likely not enforceable, another problem is the likely non-enforceability will not stop the employer from suing. You are likely to win the lawsuit, but it may cost a fair amount of money in attorneys' fees in order to win. The possibility of lawsuit, not the enforceability of the non-compete, is the biggest issue with non-competes in New York, because that is what costs the employee.

In these lawsuits, the employee will likely not be able to counter sue for attorneys fee, and will likely not be able to recover attorneys' fees in any other way.

Non-competes seem to be getting more common, and the trend disturbs me because employers use them even though the law is against them. To some degree, that concern is balanced by my observation that a lot of employer may use non-competes, but not nearly all of them will bother to enforce them.

If you would like to discuss your situation in more detail, feel free to call to set up an appointment.

posted Mar 18, 2003 09:12 AM [EST]

Answer to SEVERANCE PAY

Severance Pay

In New York State, terminated employees have no right to severance pay.

However, a terminated employee is entitled to payment of earned but unused vacation time at the time of termination. In failing to pay unused vacation time, the employer would be violating the New York State Labor Law.

posted Mar 17, 2003 09:20 AM [EST]

Answer to minor crime removel from permanent record

Background Checks

One way that employer do background checks is to get credit reports on employees. Credit reports include all kinds of information, include information on arrest records.

The credit reporting companies have an obligation under federal law to be sure information is accurate. If a credit reporting company has information on you which is inaccurate, the credit reporting company has an obligation to work with you to correct it.

Generally, employers are not permitted to obtain credit reports on you without your authorization, and, if they use the information in a way that is adverse to you, they have to give you certain notices. If an employer does get a credit report on you without getting your authorization, that may be a violation of federal law, for which you can sue. Interesting, the federal law involved is not an employment law, but a law having to do with credit reporting.

There are certain problems with a claim like this. First, you need some proof that the employer accessed your credit record. If you get a copy of your credit reports (you may need to go to three different places to get three credit reports) they should should who requested copiues of the credit report. Second, employers will usually use another party, usually a private investigator, to actually obtain the credit report, so that there is a need to show a connection between the investigator and the employer. Third, credit reports aren't the only way to get criminal background on people. Those other methods may not be covered by the applicable federal law.

posted Mar 6, 2003 09:40 AM [EST]

Answer to IT sub-contractor ,unknown contract, noncompete?

Getting Locked In

Your query is a good example of a fact pattern where it would be dangerous for me to give a specific answer. One danger is that I don't know enough. Another danger is that, if I responded to your question with a simple "yes," that does not mean that A and B could not cause you trouble, up to an including suing you.

Incidentally, your fact situation seems to be one which is an inherently good argument against these non-competes. "A" seems to be locking you in, more or less dictating to you who you must work for. Once "B" has you, they will probably want another non-compete from you. You sound more like an indentured servant than an employee.

To provide a general response, NY Courts disfavor non-competes. As a result, if push came to shove, a court would likely find that A and B have no right to prevent you from working for C.

posted Mar 4, 2003 08:41 AM [EST]