Answers Posted By David M. Lira

Answer to Unions and mergers

Forced to Go Union

This is a labor law issue, and I'm an employment attorney. This is a fine distinction, but the truth is that my knowledge of labor law is very limited. My suggestion is that you contact the National Labor Relations Board (NLRB). That is a federal agency governing union issues in private sector employment. (Public employees in New York State would look to the Public Employees Relations Board, PERB.) I am also assuming that you were not unionized before the merger.

Incidentally, I believe employees are better off with unions. Unionization nearly always takes you out of the employment at will doctrine, under which you can be fired for any reason or no reason at all. Union contracts almost always require the employer to have cause for terminating an employee. In addition, a union will prevent the employer from engaging in practices that I consider ethically questionable, such as having employees sign contracts with non-compete clauses. Non-compete clauses might actually prevent you from getting another nursing job, anywhere, although New York courts generally do not like enforcing these non-compete agreements.

My understanding is that a basic tenent of labor law is that workplaces cannot be forced to unionize, particularly by management. Once a workplace is unionized, individual employees might be required to pay union dues, but that happens only after a majority of the employees in that workplace have decided they want to unionize with a particular union.

I don't know what management means by "accretion." That might be a term used in labor law. Perhaps the contract that the employer has with the union at the other hospital requires the employer to recognize the union as the collective bargaining agent for any new facilties acquired by the employer, including your hospital. Even assuming that is what the contract says, you are not necessarily stuck.

I would think that either a certification or decertification election would need to be held at the non-unionized hospital. I don't know what the proper procedure would be, but the NLRB can help you with that. The purpose of any election would be to determine whether the nurses want the union.

Also note that, if nurses as a group at your hospital object to this union, you are better off acting together, rather than alone, because, oddly enough, when even non-unionized employees act together, they have certain rights similar to those enjoyed by union employees which protect them from retaliation for their collective action. If the union or employer retaliates against any group of non-unionized nurses for their opposition to the union, you can file a complaint of retaliation (unfair labor practice) with the NLRB.

posted Jan 29, 2003 09:08 AM [EST]

Answer to Facing Title / Salary Change

What's in a name?

The law makes no distinction between terms like "reduction-in-force," "firing," "layoff" and "termination." They are all the same thing, although to some degree the terms might describe the genesis and motivation for the act. But, employers have been know to lie, for example, releasing an employee from a job saying it was a reduction in force required by economic needs while really being motivated by something like age or race discrimination.

In particular situations, the law is concerned with the motivation behind the termination of an employee. One example was already given, where the employer claims the termination was a RIF while an employee says it was discrimination. If a lawsuit follows, it would be up to the court to sort out the real motivation.

For another example, with unemployment compensation, the Unemployment Compensation Board initially just wants to know that the employer terminated you. The employer could prevent you from getting unemployment by claiming you were fired "for cause." In this context, "cause" means the employee did something wrong. The employee may disagree, and ask for a hearing on the issue. At the hearing, the hearing officer is interested in figuring out the real motivation for the termination. Was it really that the employee did something wrong? Or was it some other reason?

There is another way for me to look at your query. I could look at it as the employee with being faced with the choice of taking a demotion or being fired. The possible questions from this are: Are there any consequences to the employer? Are there consequences to the employee?

As to the employer, because of the employment at will doctrine, the employer is free to change any term or condition of employment at any time for any reason, even for a false reason or no reason, unless the reason (or motivation) is one prohibited by law. So, if the employer wants to lower your pay, and change your job, the employer is free to do so.

If you reject the demotion, because the employer may terminate you for any reason or no reason at all, the employer is free to let you go.

I am no expert on unemployment compensation, but based on some of the stuff that has come my way over the years, my impression is that at one time, when an employee was given the choice of demotion or termination, the employee would be able to get unemployment compensation. In other words, there seemed to be no consequence to the employee.

I am not so sure that is the case anymore. I have seen employer argue that because the employee had the opportunity to work in the demoted position and rejected it, the employee failed to fullfill the obligation imposed under the umeployment compensation law that the employee accept whatever gainful employment that presented itself. I have this sense that employers have had some success with this arguemtn, but I don't know how much.

posted Jan 15, 2003 08:52 AM [EST]

Answer to I want to seek justice from those that had a direct impact on my current finanicl condition.

False References

I get this sense that there may be something more going on in your situation, but I can only guess what it might be. Therefore, for the purpose of responding your general query, I will base my response only what you have specifically stated in your query.

Your case facially might involve a defamation situation, but I doubt you will be able to get anywhere with it for at least two reasons.

First, not all statements that a person might consider false are defamation. For example, opinions are often said to fall outside of the definition of defamation. In part, this is the law because of the 1st Amendment of the Constitution. In the US, we provide special protection to the opinions people might have, no matter how wrong-headed the opinions might be.

Second, the statements made by your supervisor within the bank would likely be considered be qualified privileged.

In your situation, a privilege is a form of protection from being sued. The law grants protection to certain types of communications, because the law considers the communications important. Here, you have an example of an employee communicating information of interest to an employer to another employee. That would be considered privileged.

Actually, the communication would be qualified privileged, meaning it is protected, but not in all instances. A communication which is qualified privilege can be the subject of a defamation claim if it is utter with malice. Malice is hard to prove, and gets to the motivcation of the speaker.

There is also another limitation on a defmation claim. In this case, even if we assume that there were no problems with teh communication itself, you would likely have a claim only against your supervisor, and not your employer. You would want to go after your employer rather than your supervisor because your employer is likely to have "deeper pockets" than your supervisor.

In some instances, you might be able to hold an employer responsible for the defamatory statements of an employee, but the situation would have to involve the employee fulfilling a responsibility on behalf of the employer. For example, if a third party, like a company with whom you have applied for a job, sought a reference from your employer, and the employee responding to the reference provided information which as both false and injurious, then you might be able to hold the employer responsible for the defamation, because it was the responding employees job to respond to the request for a reference.

posted Jan 14, 2003 08:54 AM [EST]

Answer to betrayed by a demotion

Unfair Treatment

I have to make two assumptions to anser your questions: 1) you are not working for a government entity; and 2) there is no union involved. My answer would be very different if either condition were true.

The answer lies in the Employment at Will Doctrine, which in this case can be expressed as follows: An employer can change an employees term of employment at any time for any reason, or no reason at all. As a result, an employer need not be fair to an employee or even tell the truth to an employee. An employer may even mislead an employee.

This is a very harsh rule, but it is the basic law in New York. Another way of expressing the rule is that an employer has no obligation to act in good faith with respect to its employees.

Thus, with the assumptions noted above, I doubt you have anything to go on.

posted Jan 14, 2003 08:31 AM [EST]

Answer to No non-compete, CA employer, NY client... ?

When You Don't Have a Non-Compete

I assume that not only do you live in New York, but most, if not all, of your work is performed in the New York City metropolitan area. In addition, I assume that you employment agreement does not say that it is governed by the law of a different state, such as California. (My bet is that California law would be more favorable to you, but I can't be sure about that because I do not practice in California, and am not familiar with the details of California law.)

New York law disfavors non-compete agreements in employment contracts, meaning, assuming that there is a non-compete provision in your agreement, the likelihood is that the non-compete provision would not be enforceable.

Based on what you say in your query, I can't be entirely sure that there is not a non-compete provision incorporated into your agreement by reference to the employee manual. I don't know what you mean by non-disclosure and conflict of interest "stipulations" in the employee handbook.

But you say you have no non-compete provision. So, the law tells me you should have no fear of leaving your current employer, starting (or restarting) your own company, and taking clients away from your ex-employer. That is the essence of the competive free market, which big businesses always say they love but do as much as possible to kill.

But there are some proviso's here. One is that you can always sue anyone for anything. The question is never whether you can sue, because the answer is always that you can always sue. This means that, even though the law would seem to be on your side, an ex-employer determined or angry enough could still sue you, even though the ex-employer will almost surely lose in the end.You will win, but you will have incurred legal fees, and maybe lost clients because your ex-employer may also sue the client. Remember, in the US, the general rule is that each party pays their own costs. Maybe you could recover your costs in a second abuse of process lawsuit, but that type of lawsuit is hard to win.

Although being sue unjustly is a possibly that I must raise, if I was the one facing the choice of staying or leaving an employer, the fear of a lawsuit by itself would not stop me.

Another proviso has to do with I said. Ex-employees can compete against ex-employers. Ex-employees can lure away business from ex-employers. But current employees cannot do that because current employees owe their employers a duty of loyalty. If a current employee lures business away from a current employee, that current employee could be forced to pay over to the employer any profits earned by the employee from the taken business.

The trick in this issue is determining when an employee becomes an ex-employee, and when an employee has started to lure away business from an employer. These are intensely factual issues, requiring a much closer analysis than is possible from the facts that you have presented in your query.

One thing you said in your query tends to lower your risk. You said that the plans being discussed with client C would not fit with your employer. This tends to show that you have not begun the process of luring business away from your employer while you are currently with that employer, because it seems that your employer would never take the business to begin. Note I said "tends." The lack of fit seems to work in your favor, but it probably isn't a fact that is conclusive.

posted Jan 9, 2003 08:55 AM [EST]

Answer to Non-compete in NY

How to Break a Non-Compete Clause

New York Courts, generally, do not like non-compete clauses in employment agreements, but that does not mean New York courts will never enforce them.

Also generally, the courts will be more likely to enforce a non-compete if it is written narrowly. To a large extent, the enforceability of a non-compete also depends on the nature of the job involved.

Whether and when you can get out of a non-compete agreement depends on what the non-compete says. When a non-compete expires depends on what the agreement says. There is no presumption that an employment contract is for a year at a time. The contract has to say that to be so.

If the employer's practice is to get non-compete agreements from employees on an annual basis, and an employee refuses to sign it, the employer would be free to terminate the employee, even if the non-compete is a kind which courts are not likely to enforce. This is because of the employment at will doctrine, which says an employee can be fired at any time for any reason, even for no reason or a false reason.

posted Dec 30, 2002 09:34 AM [EST]

Answer to Sexual Discrimination/Retaliation

Your Right to Change Attorneys

Under New York law, you are entitled to change attorneys at any time. You might owe the original attorney for the time and effort he has put into the case, and he will protect his interest by asserting a lien, but you nonetheless would be entitled to change attorneys.

posted Dec 23, 2002 08:28 AM [EST]

Answer to Employee rights on company asset sale

Transferring or Leaving

Your question is a lot more complicated than you may think. Because of that, I've divided it up.

First, let's discuss the issue of transfer. Because you work in the private sector, any transfer in a situation like the one you describe may technically be a termination from one employer with an offer of employment with another.

Keeping this in mind is very important because the transfer from your old employer might end your ability to accrue benefits from that employment. This has a lot of implications. For example, the transfer would likely have some sort of effect on your pension with the old company.

In transferring to the new company, you may also be starting all over again, in terms of seniority, in terms of accruing things like vacation and sick leave, and in terms of other benefits such as health benefits. Technically, you may be a new employee.

The second part of my answer involves severance pay from your current employer. Generally, you have no right to severance pay. If your employer has a formal severance arrangement, that is the exception, not the rule. Any rights you may have under a formal severance arrangement would be determined by the plan for that arrangement. If there is a formal severance arrangement at the company, it should be described in a summary plan description (SPD) or benefits booklet which would be available to employees on asking for it. Many large employers will include the SPD on their employee webpage. Theoretically, a court could find that an employer has a formal severance plan, despite the lack of a formal, written plan, but proving the existance of a formal severance arrangement without all of the legal formalities including a written plan would be very difficult.

The third part of my answer involves your pension rights. Your pension rights will be governed by a formal written plan. You should be able to get a condensed, plain-language version of that plan by asking for a copy of the summary plan description (SPD) or benefits booklet for the pension. The SPD is a good starting point for understanding when and how you are entitled to a pension. If I was advising you on a one to one basis, I would ask you to try to get a copy of the SPD before I even met with you.

posted Dec 10, 2002 7:41 PM [EST]

Answer to Non Compete Clause and noncomplaince

Competing with Your Employer

I just wanted to supplement Joseph Heppt's answer, which I agree with.

Although New York courts generally disfavor non-compete clauses in employment agreements, New York courts will also assume that a current employee (someone still working for a particular employer)has a duty of loyalty toward that employer. That duty of loyalty includes not competing with the employer. Courts disfavor non-compete clauses because it impedes an otherwise unemployed person's ability to make a living, but, if a person is making a living from an employer, that is not a concern. The concern that courts have with a current employee in a competing business is that the employee while benefiting from the employer may be at the same time impairing the employer's ability to make a living.

Your situation likely raises many other fairly complicated factual issues including the following: Were you really competing with the employer? How do you measure that competition? Was the employer aware of your second job? Did other employees have second jobs? How did their jobs compare to yours in terms of competition? These issues are probably too complex for a public forum like this, and you should have some concern with confidentiality. I suggest that you arrange for a private consultation with a knowledgeable attorney to more thoroughly review your situation.

posted Dec 10, 2002 7:12 PM [EST]

Answer to Zero Tolerance and fail drug test is it a Federal Law

Federal Drug Testing Law

There is no federal law of general applicability to employment which requires employers to adopt a so called "zero tolerance" policy with respect to drug testing. In fact, at least one federal law, the Americans with Disabilities Act, could be read as not tolerating "zero tolerance."

"Zero Tolerance" is a great sounding slogan, but, the fact is, where ever it has been applied, it creates a lot of unfairness. Zero tolerance is just plain stupid.

posted Nov 21, 2002 09:13 AM [EST]