Answers Posted By David M. Lira

Answer to salary cut to hire new employees?

Cutting Pay

The general answer is that the employer can cut your pay as often as it wishes. The caveat would involve a question: who is getting higher pay than you? For example, if you are female, and males are getting higher pay in the same position, that is discriminatory, and illegal. You might have the same result if the differences are based on things like race, national origin or religion.

posted Mar 3, 2003 08:50 AM [EST]

Answer to non-compete issue in IT.

What is Better

The facts that you were involuntarily released from for former employer, and your current employer had previously done business with the customer puts you in a marginally better position. Strictly speaking from the point of view of the law, as opposed from the point of view of pursuasion, the key point is that non-competes in employment contracts are disfavored by the courts in New York.

Will your current employer fire you? That is impossible for me to say. Some employers, wanting to avoid a lawsuit, will fire the employee. Others won't.

posted Mar 3, 2003 08:41 AM [EST]

Answer to Business is Business... Leave the personal stuff at HOME!

Jealous Ex-Spouse

I probably will need more information to tell whether you have a case. FOr steps on protecting yourself, feel free to call me for a consultation. (I do charge an initial consultation fee.)

Your situation reminds me of another situation I once handled. In that case, the husband and wife were still married, and worked for the same employer. The wife was very much the jealous type. Whenever a man was assigned to work with her husband, she was fine, but, whenever a woman was assigned to her husband, she would go nuts, creating all kinds of problems for that woman. The husband, incidentally, was a gentleman, who everybody enjoyed working with.

In my mind, this situation involved illegal sexual harassment, even though the harasser and harassee were both woman, and even though there was no hint of homosexuality. The reason for my conclusion is that the wife harassed the women assigned to her husband only because they were woman. That made the harassment gender based, and illegal.

posted Feb 28, 2003 3:39 PM [EST]

Answer to Changes to Employment Agreement

Typical Non-Compete???!!!

Your statement in your query describing the non-compete provisions in your employment agreement as typical really shocked me because the law in New York State disfavors non-compete provisions in employment agreements. Although my sense is that employers are increasingly using non-compete provisions, the law in New York State has not changed.

If push comes to shove, in most cases, courts will find that non-compete provisions are not enforceable.

In your case, because the employer changed your pay, and you refused to sign on, you only have an additional argument for saying the non-compete is not enforceable because it expired. But, even if your employer never changed your pay rate, the likelihood is that a court would nonetheless find the non-compete not enforceable.

posted Feb 28, 2003 09:04 AM [EST]

Answer to No pay for non-billables

Employer Pay Scams

I am increasingly seeing employers relie more and more on various methods, that to me are really nothing more than scams, which aim to force employees to work longer and longer hours for less and less pay. Many of the scams are clearly illegal. The rest I think are highly questionable. Frankly, the scam you describe is a new one on me. It seems of questionable legality to me, but I would need to know a lot more.

Here are some of the other scams:

1- Making hourly employees salaried employees: Unless an employee is a manager or professional, or falls into a specific exception, such as for domestic workers or outside salespeople, under a federal law, the Fair Labor Standards Act (FLSA) which is particularly advantageous to employees, employers must generally pay employees on an hourly basis. Employers like paying employees on a salaried basis because they don't want to pay overtime. But, it is not up to the employer to decide who gets paid on a salaried basis.

2- Making employees independent contractors: There is a double advantage in making employees independent contractors. Employers don't have to pay overtime, and they don't have to pay for benefits, including benefits that may be required under state law, such as workers' compensation and unemployment compensation. Employers want to avoid the costs of having employees, but they want to retain the same level of control over the independent contractors as they did over the employees. This practice violates not only FLSA, but also may violate the Employee REtirement Income Security Act (ERISA), in that, unless the employer sets up the scam just right, the employer may be treating certain employees differently than similarly situated employees, granting some benefits but denying others those same benefits. This unequal treatment, which ERISA labels as a form of discrimination, is illegal under ERISA.

3- Covenants not to compete: Employers usually stick one of these under an employee's nose and tell the employee to sign it or lose the job. The employee usually signs. By signing it, the employee is essentially locking himself or herself into this one employer. Because the employee is locked in, the employer has a lot more freedom to take unfair advantage of the employee. In truth, courts disfavor these things, and will usually refuse to enforce them. But that is really little comfort to the employee, because the employer will still be able to put you to the expense of litigating the issue.

As I said, your situation seems new to me, but it also seems to violate both federal and state laws concerning wage and hours. These laws in essence create very important exceptions to the employment at will doctrine. You are right that because of the employment at will doctrine, an employer is free to lower or raise your rate of pay at any time. The employer can also lay you off at its discretion, but, in that case, you would be entitled to unemployment compensation. But, as I understand the law, an employer is not free to have (either salaried or hourly) employees put in the time, and then not pay the employee because the employer considers the time to be not "billable."

posted Feb 21, 2003 08:51 AM [EST]

Answer to Non-compete

Non-Competes in New York

Court in New York State generally do not like non-compete clauses in employment agreements, but there are exceptions to the rule. Whether your situation fits the general rule or an exception depends on the facts specific to your case.

In addition, even if we assume that eventually the non-compete clause in your employment agreement is not enforceable, that does not mean the employer will not sue you on it. That is the big problem with non-competes: even though most non-competes are not enforceable, you may have to spend a lot of money on an attorney to get a court to make that determination for you.

posted Feb 19, 2003 5:19 PM [EST]

Answer to Making False & Disparaging Remarks to a Potential Employer/Client

When Is It Defamation

Ex-employees can sometimes successfully sue former employers using a defamation theory if the employer made certain types of negative statements about the employee. However, especially in New York State, defamation claims are not an easy thing to win, in part because of First Amendment concerns. (From what I have read, defamation claims are much easier to prove outside of the US, especially in Europe.)

In New York, to bring a defamation claim you need to know who said what and when. That is often hard to come up with. One strategy used by employees is to hire a reference check firm (there are at least two that you can find on the web) to call the former employer, looking for a reference on you, to see what the employer says.

More generally, not all negative statements are defamation. Opinions, for example, are said not to be defamation. As a result, defamatory statements have to look more like statements of fact. Saying that an employee is "dishonest" might be considered opinion, and thus not defamation. Saying that an employee "padded expense accounts" is more likely to be defamation, but I hedge because if the statement started "we think," the result might be different, but maybe not.

posted Feb 17, 2003 08:46 AM [EST]

Answer to Female discrimination

When Is It Enough

You have told me enough that I would invite you to call me to discuss your case in greater detail.

I don't want to discuss your case in any more detail, but your query provides an opportunity to discuss the purpose of this website, and the way employment lawyers evaluate cases they are considering taking on.

When you post a query on this website, an attorney seeing it is NOT giving you personal advise, and that is for several reasons, including because we don't know who we are responding to (you could, for example, be a management attorney in a case in which I'm representing an employee, and in which this management attorney is trying to probe for how I think about a particular issue) and we don't know all of the facts (most employment cases are very fact driven, with small details often being very important). Instead, we are using the facts in your query as fodder for a short public article about a topic of interest to the general public about employment law. You (and we employment attorneys responding to queries on this site) don't want the thoughts of someone who might end up being your attorney plastered in a public forum for anyone, including your employer and the employer's attorneys, to see. Because we don't want to jeopardize your position, when we respond to a query I know that I tend to respond in a very generalized way which addresses not much more than what the statutes and case law say the law is. I don't want to give you a specific opinion, or give you specific advise because you are not at that point my client, and because any opinion or advise I might give is a matter of PUBLIC RECORD, which anyone can see.

When it comes to my selecting cases, I know that I am very careful about selecting cases because it takes so much time, effort and money to pursue these cases, with the time, effort and money coming from both my client and me in just about every case I have. It isn't enough during the screening process, for example, for someone to tell me that she believes she's been discriminated against. That really tells me nothing.

I screen cases in stages. The first stage is the initial contact, usually a phone call, but increasingly an e-mail. Generally, phone calls are better, because I can ask for more information, and get a better feel for who you are and why you are contacting me. E-mails (or queries like those posted here) usually provide far too little information for me to make a first cut.

The first cut is to determine whether there is anything there that I can help with. I get a lot of calls and e-mails (and sometimes even letters) in which it is apparent from the start that there is nothing I can do.

The next step is an office visit. Except in very special circumstances, you should never hire an attorney without first meeting that attorney. I really do not want to take on a client I have never met.

The office visit accomplishes several things, and I charge an initial consultation fee in most situations.

Why the consultation fee? Well, it isn't to get rich. The consultation fee I usually charge is discounted heavily from my regular hourly rate.

I charge it because I want to see that you are serious about your claim, and you are committed to it. If you won't make a small investiment at the start of your case, that says to me that you probably don't think a whole lot of the claim, and you probably won't be there when I need you. Remember, I will be investing a lot of time in your case, and, even if you pay me what looks to you like a big fee, the fee probably will not compensate me for all of my time, because very few of my clients are financially able to pay me at my full hourly rate. (In most cases, I am hoping that I will get a fee from some source, that is, from the employer or from a lumpsum award, to make it worth my time.) Many employment cases can involve hundreds of hours of attorney time, and, if you consider that most attorneys, if they could, would charge private individuals an hour rate in the hundreds of dollars per hour, you can see that, if you had to pay an attorney "full freight," it would be costing you a lot of money.

At the office visit, I discuss your case in a lot of detail. I generally a lot 1.5 hours for each initial office visit, but it isn't unusual for such a meeting to run much longer.

I'd say that, in most situations, I know at the end of the initial office visit whether you have a case that is worthwhile, and whether I want to take it. I will also know under what conditions I want to take it.

But there are cases in which one visit is not enough. In those cases, I might take a case for review. I may or may not charge a fee for review. It depends on how good I think the potential case might be, and, also, on whether you can pay a fee.

By "good," I mean a lot of things, including how strong I think the law might be in your favor, how much the case might be worth, and how compelling the facts of your case might be. You might call this last factor the "doing good" factor. That is, your case might have ramifications going far beyond just your situation.

When I take a case for review, that means you have told me enough about your case that I think you probably have a case, but I perceive some big problem that might cause me to think differently. I want to address those problems.

In some cases, the problem might be purely legal. That is, your case presents a novel or rare situation, and I'm not sure how a court might handle it. I want to look at the law to get a better handle on the legal issue.

In other cases, the problem is factual. I know what the law is, but I am not sure that there are enough facts to establish your case under the requirements of the law. To overcome this problem, I might need to do no more than discuss your case with you in more detail. I just need to spend a few more hours with you, discussing your case with you. In other cases, I might need to start contacting witnesses, or start collecting other information, like documents, from you or other sources. In still other cases, I may believe that you alone might not be enough. In some cases, the discrimination might not be against you, but against all people like you. I might believe that to succeed we need to get other people on board.

Of course, a case taken under review can involve a mix of law and facts.

There entire process is far less science and more art, where experience counts as much or more than mere legal knowledge.

posted Feb 14, 2003 09:21 AM [EST]

Answer to Defamation case against Cablevision.

Is It Defamation?

Simply because someone in the course of an employment dispute said something about you that you found offensive does not mean you have a viable defamation claim. In all defamation claims two questions have to be asked and answered. First, what was said? And second, who said it to whom?

With respect to who and whom, it is often difficult to successfully sue an employer for statements made within that employer's organization. Those types of statements will usually be considered qualified privileged. A privilege essentially makes certain types of action immune from a civil lawsuit. A qualified privilege creates a presumption that the action is entitled to immunity, but the presumption can be overcome under certain rather onerous conditions.

As to the what issue, not all statements are defamation. For example, even offensive opinions are generally not considered defamation.

I might be able to help you, but, at this point, I don't know whether you even have a defamation claim.

posted Feb 6, 2003 08:57 AM [EST]

Answer to Can my boss prorate vaction days to one a month.

Changing the Terms of Employment

I'm sorry but I don't fully understand your query as written. For this reason, I will re-cast your query to a form that I can answer. I hope the answers are helpful.

Lets assume that the employer started by giving all employees 2 weeks (10 days)vacation after the employee had complete 1 year of service. For the moment, we'll forget about the situation a new relatively employees, and deal only with employees with 2 or more years of service. Let's also say that as of the 1st of each new year, the practice was that the 2 weeks of vacation was put in each employees vacation bank. In addition, employees were allowed to carry over vacations from one year to another.

Now, as of 1/1/2003, the employer changes the way you get your vacation. Rather than get 10 days on 1/1/2003, you get only 1 day. Each month after that, the employer puts in one more day of vacation, up to 10 days in a year. Further, vacation is now "use or lose," that is, you can't carry-over vacation from one year to the next.

Can the employer change the way employees earn and accummulate their vacation? Yes. The reason is the employment at will doctrine. The basic statement of the employment of will doctrine is that an employee can be fired for any reason or no reason at all. Courts have interpreted this basic rule to also mean that an employer can change the terms of employment at any time, for any reason or no reason at all. Thus, an employer can increase or decrease the number of vacation days you are entitled to. The employer can even stop giving you vacation at all. The employer can also change the method by which you earn or accrue vacation.

But let's say an employee on 12/31/2002 still had 6 days of vacation. Has the employee lost that vacation with the new year. I don't think so. Vacation is considered to be earned. Once earned, it cannot be taken away unless at the time it was earned there was a term making the vacation contingent in some way. Because in 2002 vacation was not use-or-lose, the employee should be able to carry over that vacation to 2003. However, if we were taking about 2003 vacation carrying over to 2004, in that case, the employee would have lost the 6 days because in 2003 that was how vacation was earned, with the understanding that it was use-or-lose.

Does a lot of this sound terribly unfair? Yes, it does, but it seems to be the result the law allows.

posted Feb 3, 2003 7:55 PM [EST]