Answers Posted By David M. Lira

Answer to WRONGFUL TERMINATION

Terminated for No Apparent Reason

I dooubt you have anything because New York is an employment-at-will state. That means you can be fired at anytime for any reason or no reason at all.

There are excepts to this general rule, but there is nothing in your query even suggesting that you would fall into an exception.

One exception would be if you were fired because of discrimination, but not any type of discrimination will due. It has to be a type of discrimination protected by law, such as discrimination based on race, national origin, religion, gender, age, disability or, in NYC or Long Island, sexual preference.

Another exception would involve civil service jobs, but, because you were there for only 6 weeks, you were still probationary employee. A probationary employee under the NYS Civil Service Law is basically treated the same as an at-will employee.

posted Nov 12, 2002 4:39 PM [EST]

Answer to Non-Compete possible lawsuit

Non-Competes: Suing vs. Winning

Can your ex-employer sue you based on a non-compete theory? Yes. The fact is that, in the U.S., anyone can sue anyone else for anything. The issue is never whether you can be sue, because the answer always is that you can. The issue is whether your ex-employer can win.

Can your ex-employer win a lawsuit against you based on a non-compete theory? Probably not. I have to equivocate my answer because I don't know what you did for your ex-employer; I don't know the nature of your ex-employer's business; and I don't know exact what your ex-employer might say you did wrong. In addition, I am assuming New York law applies. Although I would be fairly sure tha Massachusetts would be more or less the same, there nonetheless still could be critical differences that may change my answer.

Even if you signed an agreement with your ex-employer that included a non-compete clause, there is still a good chance that your ex-employer would not be able to succeed in lawsuit against you, because NY court generally disfavor non-compete clauses in employment agreements. Without a signed agreement, your ex-employer's chances of succeeding are considerably lower.

I cannot see how your ex-employer can hold you to a contract which may contain a non-compete in a business agreement, but which you never signed.

There is no such thing as a "non-compete law" under New York law. At most, New York law may grant your ex-employer protection if you had done something like steal highly proprietary information which was necessary to make you competitive with your ex-employer. That seems highly unlikely to me.

If your ex-employer tries to sue you because you have started to compete against your ex-employer, it is possible that you may have certain rights under laws which are designed to protect competition.

If your ex-employer sues you, DO NOT just ignore the lawsuit because of the answers you have gotten here. You must respond to the formal court papers that your ex-employer may serve on you. Failure to do so may result in your becoming liable in a situation in which the law would not otherwise hold you liable.

posted Nov 11, 2002 4:57 PM [EST]

Answer to Refused to renew employment agreement

Not So Tricky

It depends on what you mean by holding you.

Can the employer sue you based on the old agreements? Yes.

Can the employer win? Depends. Depends on the wording of the old agreements, the nature of your job, and the nature of the employer's business. But, NY courts also do not like non-competes in employment situation, so that you likely have a better chance of winning than your employer.

You can also bet that your employer will not get the ear of a judge until after the old non-compete expires.

posted Nov 6, 2002 08:58 AM [EST]

Answer to Non-Compete IT Consulting -> New Firm

Non-Competes in IT Industry

Non-compete clauses have become so common in the IT industry that many employment attorneys have taken to telling clients that it is safe to sign them because employers don't usually enforce them. In New York State at least, employers generally don't enforce non-competes because New York courts tend to not enforce them.

Think about what that shows. The employer is putting a non-compete in front of you, insisting that your sign it, yet knowing that there is a good likelihood that it is not enforceable. Can you really trust someone who is trying to take advantage of you in this way?

When I see a non-compete, and it doesn't matter what industry it is in, I will tell my clients it is probably not enforceable, but there is a good chance they are buying themselves a lawsuit. You cannot rule out that the employer will bring a lawsuit to try to enforce the non-compete. If the employer brings such a lawsuit, you will have to respond in some way, and whatever way you respond, it will cost you a good deal of money, in pay or in attorneys' fees, if not both.

Whether a particular non-compete is enforceable against a particular employee will depend on the wording of the agreement, and the nature of the employee's work as well as the nature of the employer's business.

To side-step the enforceability of a non-compete, you can wait for the employer to sue, or start a lawsuit seeking a declaratory judgment.

Whether you are violating a non-compete has nothing to do with whether you are being paid by a competing employer.

posted Nov 5, 2002 08:46 AM [EST]

Answer to Unfair Severance Package Offered to Me

Right to Severance

Generally, employees have no right to a severance package. If terminated, about the only thing they are entitled to receive, beyond the last week of pay, is any unpaid vacation or annual leave.

With a very few companies, there might be an exception if the company has a severance plan. If there is a plan, your rights would be explained in a benefits book called a summary plan description.

In rare cases, employees might be able to claim the existance of a severance plan, even though there is no formal severance plan. This would be very difficult to prove. You would have to that the employer had a regular practice of providing severance according to a fairly regular formula.

But, the likelihood is that you are not entitled to severance at all. If the employer is giving you anything, it is voluntary on the part of the employer.

In the facts that you relate, I'd be more interested in knowing more about the motivation of the employer in selecting you for termination. In my years of practice, I have seen that some employers have a regular practice of terminating woman of child bearing age after they have had their first child. I consider this a form of gender-based discrimination. The employers often wait a few months after the birth to avoid being accused of pregnancy discrimination, which is another form of gender-based discrimination.

posted Nov 4, 2002 10:12 AM [EST]

Answer to I called all agency I could find on internet.

Workers' Compensation Discrimination

Let's look at the basic fact pattern first. An employee gets injured on the job. The employee files with the New York State Workers' Compensation Board to get her medical bills paid. When an employee files for WC benefits, the Board will notify the employer. In this case, the employer receives notification and then immediately fires the employee.

Under this set of facts, two different things are going on. First is the employee's claim for benefits. To get these benefits, the employee has to file a set of papers. To help obtain the benefits, the employee can hire an attorney or another type of non-attorney advocate. This type of help is pretty easy to find.

The second thing that might be going on is Workers' Compensation discrimination. It is illegal for an employer to fire (or take any other adverse action against) an employee because the employee has filed a claim for Workers' Compensation benefits. The fact pattern given suggests, but does not prove discrimination. To prove discrimination, you need to show that the reason for the firing (or other adverse action) was the WC filing. Sometimes the timing of the claim and adverse action is enough proof. Sometimes, it isn't.

To raise a claim for Workers' Compensation discrimination, you need to file another set of papers. There are attorneys that can help you with this type of claim, but they are hard to find. Most Workers' Compensation attorneys don't handle discrimination claims, but a very few do. Employment attorneys, like me, regularly handle discrimination claims, but even among these attorneys, not all handle Workers' Compensation discrimination.

In some states, you can bring Workers' Compensation discrimination claims in court. Not in New York. In New York, you bring the claim before the Workers' Compensation Board.

The Workers' Compensation discrimination law in New York State is not particularly effective because it is written in such a way as to actually discourage attorneys from taking these cases.

Even worse, the Workers' Compensation Board does a poor job with these cases. They are unlike the usual cases before the Board, and the Board's procedures make no allowances for the special needs of these cases. Further, the Board seems particularly hostile to these claims, meaning it is usually very hard to win these cases.

I'd be willing to discuss the facts of your discrimination claim with you. However, you need to understand that I will not take your case unless you have a particularly strong case.

posted Nov 4, 2002 09:57 AM [EST]

Answer to Change in consideration

Consideration in Employment Contracts

When it comes to interpreting contracts, one thing an attorney must have is access to the wording of the contract. Without seeing the contract involved, it would be absolutely impossible to provide an answer to your question.

In the first year of law school, students take a course in contracts. One topic getting a lot of attention is consideration. In the real world, just about anything amounts to consideration, except for a few aberrational court decisions. In the employment context, your continuation in a job would likely be considered adequate consideration.

In your query, you say the contract has no expiration date. I doubt that the employer would commit itself to a situation where you continue in employment except for cause. When an employer does not restrict itself concerning the termination of an employee, or the end date of a contract, the contract, even though written is considered an at will contract.

This is critical because an at will arrangement allows an employer to change the terms of employment in any way it pleases. In theory, what the employer is doing is firing you under the old agreement, and offering you a different job with different terms. (Unemployment may see it differently.) If you don't like the new terms, you can leave, but that is about the only thing you can do.

posted Nov 4, 2002 09:29 AM [EST]

Answer to Unwelcome Contact by Boss

The Pattern is What Counts

The federal and state laws dealing with issues like sexual harassment really are not concerned with the quasi-amorous misconduct of one employee toward another. What these laws are concerned with are workplaces which tolerate and even encourage discriminatory behavior, including sexual harassment. So, when you write the company you work for seems to breed harassers, I take that as being more important than just about anything else you wrote because it says to me that there is a broad pattern at work that might well amount to a company policy which at least ignores, if not encourages, discriminatory conduct. The antidiscrimation laws were made to attack those broad patterns.

The reason sexual harassment is illegal is not because harassment is illegal. Generally, the law is that an employer may legally treat an employee badly. If you don't like it, you can leave. Sexual harassment is illegal because it is a form of discrimination. In the case of sexual harassment, it is harassment undertaken because of someone's gender. A key element in any sexual harassment case is coming up with evidence that the conduct is motivated by the victim's gender. Often, but not always, the nature of the conduct itself suggests that the motivation is gender.

Sexual harassment is not the only form of illegal harassment. If someone is being mistreated because of that person's race, national origin, religion, and a few other criteria, that mistreatment could be a form of illegal harassment.

Sexual harassment claims are very fact specific. When I read through your query, there was a lot of stuff which taken in isolation did not say a lot to me -- some of the conduct you described seemed harmless to me.

But, I've been working on sexual harassment cases a long time. I know that people who have experienced illgal harassment will often start out by telling me stuff that sounds pretty harmless. When I get into their situations some more, I get them to tell me stuff which changes the entire tenor of the behavior they have been experiencing.

The reason victims of discrimination are better off getting attorneys before going to the EEOC or the State Division of Human Rights is because a knowledgeable employment attorney will help the employee bring out the overall discriminatory pattern, as opposed to one or two recent incidents which, alone, may seem harmless.

Technically, you don't need an attorney to go to the EEOC or SDHR, but their investigators are often too overworked (or have the wrong mindset) to take the time to bring out what is really going on. A privately retained employment attorney will help considerably in bringing out what needs to be brought out.

You're too far from my office for me to help you, but there are employment lawyers in Buffalo who can help.

posted Nov 1, 2002 10:10 AM [EST]

Answer to non compete

Non-Competes in Employment Agreements

Actually, answering your question is easier than you might think, because, in New York, non-compete clauses in employment agreements are generally not enforceable. You can beat your employer to the courthouse by filing a declaratory judgment action, which would seek to have the clause declared invalid.

One issue that may be relevant is the law applicable to your situation. Because you are employed in New York, I would be inclined to say New York law applies, but you employment agreement might say something different. My answer is based exclusively on my knowledge of New York law. The answer might be different if the law of another state in fact applies.

New York courts tend to disfavor non-compete clauses in employment agreements. They will fairly readily enforce non-competes that are part of the sale of a business, but employees usually win the cases involving employment non-competes. The reason employment non-competes are disfavored is because they tend to deny people the ability to make a living and advance in the field they are best qualified to work. Sometimes court will relate back their concerns to the 13th Amendment, which outlawed slavery.

There are excepts to this general tendency of New York courts. A court might enforce an employment non-compete to the extent needed to protect the employer's proprietary information, such as trade secrets, or very difficult to construct customer lists. Courts might enforce employment non-competes in which the employee is compensated for the time the employee is out of the market.

It is true that whether you can successfully challenge a non-compete to a degree depends on the wording of the agreement, but my experience is that the wording of the agreement is not usually the critical issue. The more important issues seem to be the nature of the employer's business and the nature of the employees' jobs. The nature of the geographic and product market that the employer serves might also be relevant.

Generally, the longer the term of the non-compete, and the broader the geographic market, the less likely a court will enforce a non-compete.

Non-competes have become very common in the IT and health care areas. They also tend to become more common in areas where employers have a hard time holding onto employees because the employers are constantly luring away employees from one another. Their purpose seems to be to lock in employees to one employer, and to how down the salaries of those employees.

Non-competes have become so common in the IT and health care industries that some attorneys will tell employees that it is OK to sign the non-competes because the employer is not likely to enforce the agreement. Although it seems true that employers often decide not to enforce the non-competes, I have to question the integrity of an employer using something they know probably won't work. You can't trust someone like that. I still tell employees that signing an employment agreement is like buying a lawsuit. You'll probably win the lawsuit, but it will still cost you.

Addition by MEL's Moderator, Neil Klingshirn:

Here is a Wiki article on New York non-competition agreements with cases and law:

http://www.myemploymentlawyer.com/wiki/New-York-Non-competition-Law.htm

posted Oct 29, 2002 09:53 AM [EST]

Answer to discrimination, unequal pay, unsafe work conditions etc

You Work for a Bad Employer

Your query raises so many issues that it would simply take too long to address all of them, but the query raises issues in 3 areas: workplace safety; the employers treatment of employees; and discrimination.

When it comes to workplace safety, employees can file complaints with OSHA. Whether OSHA does anything is another matter. The only other way to raise workplace safety issues is through a union, if you have one. Workplace safety can be made a bargaining issue.

Incidentally, employees can organize to address workplace issues, such as safety, and yet not unionize. If the employer retaliates because of the organized effort, the employees who have organized might be protected under the National Labor Relations Act, in much the same manner that unionized employees are protected.

As to treatment, because New York State is an at-will state, that means, in part, that an employer does not have to be fair or nice to employees. You can be fired at any time, for any reason, or not reason at all. The only limit on this general rule comes largely from laws passed by COngress or the New York State legislature which are essentially exceptions to the employment at will doctrine.

If the employer wants you to wear its hats and t-shirts all day, the employer can do that. The employer doesn't have to pay the costs of supplying the hats or t-shirts. If all you have is a t-shirt that is too small, the employer can make you wear it, no matter how rediculous you might look. Your only remedy is to leave.

Discrimination, but only in certain forms, is an exception to the employment at will doctrine. That is, if the employer's conducct can be characterized as discrimination, then the law might afford certain protections, but only if the nature of the discrimination is covered by some specific law. Discrimination on the basis of gender or sex is protected by both federal and state law. Thus, disparities in pay between men and women in similar positions might be illegal. Under certain circumstances, an obese person might be protected under state law, but only if the obesity is due to a diagnosed medical condition. Without the diagnosis, the obese person probably has not legal protection. Sexual orientation (whether gay or straight) or perceived sexual orientation are not protected under either federal or state law. In some locations in New York State, such as New York City and both counties on Long Island, there are local laws protecting sexual orientation. I would not know based on the information that you've supplied whether your employer would be covered by any other local law prohibiting discrimination based on sexual orientation.

posted Oct 25, 2002 12:35 PM [EST]