Answers Posted By David M. Lira

Answer to Can a company just stop giving me paychecks and write me off?

Who's Responsible for Paying

Your fact situation is complex, but my sense is that, in the end, both the Brand and the Company will be responsible for your pay.

If the issue is whether an employer can fire you without warning, the answer is usually yes. If a lot of people are being terminated at once from the same location, then a federal law called WARN might offer some very limited protection. But based on how you describe your situation, your situation might not be covered by WARN.

The bigger concern I have is who is paying you for your work. An employer cannot just decide it will not pay people who have already put in time for them. Someone will be held on the hook for the unpaid wages -- it could even be individual managers. Under New York law, employers cannot delay payment of wages beyond a certain point.

The laws governing the payment of wages are generally pretty tough on employers. If your situation involves unpaid wages, I strongly urge you to follow-up. Give me a call.

posted Oct 11, 2002 10:18 AM [EST]

Answer to unpaid wages-contract work

Employee or Independent Contractor

There is a lot wording in your query which causes me to believe you are an independent contrator. But there is also some wording which causes me to believe you are an employee who the employer improperly classifies as an independent contractor to escape certain costs and to take advantage.

If you were really an independent contractor, your option would be to sue this company on contract, a very straight forward claim. Under NY law, indeed, probably the law in just about every state, in a straight contract case, you have to pay for your attorney and costs. You are not going to recover those things from this company.

Your contract claim may be too small for most attorneys to have any interest. You could go to court yourself. Your claim is $300 too big for small claims court (which is part of Civil Court), but you could go to NYC Civil Court.

If you were really treat like an employee on a day to day basis, but were not given the benefits of other employees, you could start proceedings under many differnt statutes. Whether that would be worthwhile will depend on the particulars of your situation.

In general, it is unlawful for employers to classify employees as independent contractors if all the employers want to due is avoid costs associated with having employees. If employers treat the contractors like employees, the employer must generally treat those contractor like employees.

posted Oct 9, 2002 10:07 AM [EST]

Answer to A friend starts selling services you have sold can I give unpaid advice?

What the Non-Compete Says

It would be impossible for me to say whether advising your friend would violate the non-compete without seeing the agreement.

Incidentally, non-competes are very much disfavored in New York. Depending on the exact terms of the agreement, and the exact severance pacakaged you received, the non-compete may not be enforceable.

Employers, particularly in the health care and IT areas, are increasingly using agreements with non-competes, even though any corporate attorney worth his or her salt would know the non-competes would probably be unenforceable. Raises interesting questions about corporate ethics, doesn't it?

posted Oct 3, 2002 09:21 AM [EST]

Answer to Can I still file a claim and win?

Statute of Limitations on Harassment

You query is entirely too short to give a definitive answer. I will assume that what you want to claim is that this manager was abusive, that is, some sort of harassment.

Not all forms of harassment are illegal, so another issue that needs to be addressed in responding to query is whether the harassment you want to claim is illegal. Harassment becomes illegal if it is undertaken because the victim belongs to a protected classification. Some of the protected classifications are race, religion, national origin, gender, age and disability.

Assuming that the harassment you are talking about is illegal harassment, the statute of limitations under the federal law (300 days) has long passed. Under New York State law, if you bring the claim into court, the statute of limitations is 3 years, but only 1 year if you want to bring the claim to the New York State Division of Human Rights (or local agency).

posted Oct 2, 2002 09:27 AM [EST]

Answer to Short Term Disability vs FMLA

It's Up to 12 Weeks

Probably.

The Family Medical Leave Act protects your job during a period of 12 weeks leave taken because of pregnancy, birth, or your illness or an illness of a close family member. An employer may count other paid leave, such as paid sick leave and short-term disability, toward the 12 weeks of FMLA leave, on notice to the employee.

Remember, in New York State, the generaly rule is that you can be fired at any time, for any reason, or no reason at all. FMLA creates a narrow exception to that general rule. So, once you lose or use your protection under FMLA, you can go at any time.

posted Sep 24, 2002 08:26 AM [EST]

Answer to Illegal termination ?

Reason for Termination

You query lacks sufficient information to permit any kind of intelligent answer.

To provide an extremely general answer, first we would have to determine whether Massachusetts or New York Law applies. I am a New York attorney, and I am not familiar with Massachusetts law. If Massachuessets law applies, the answer could be very different than the answer I am about to give.

If we assume New York applies, or that New York and Massachuesetts law is the same, the general answer would begin with the employment at will doctrine, which basically says you can be fired for any reason or no reason at all, unless it is a reason made illegal, usually by statute. So, unless we can find an exception, there is nothing illegal about your employer telling you your job has been eliminated then filling that same job with someone else who was supposedly eliminated.

There are lots of exceptions to the employment at will doctrine. It would be impossible for me to say which applies without knowing a lot more about your case. But the one that comes immediately to mind by the way you've posed your query is the exception for discrimination.

Now understand that not all forms of discrimination are illegal. Discrimination is illegal only if it is motivated by things like race, age, sex, etc. There are actually many forms of illegal discrimination, some of which would not seem immendiately obvious. In any case, if you believe you are a victim of illegal discrimination, that is not obvious from your query.

posted Sep 16, 2002 11:04 AM [EST]

Answer to Is there anything we can do to stop this?

Does Seniority Mean Anything

Employees in New York State gain nothing from seniority. And there is no law in New York State requiring employers to base decisions on seniority.

However, employers seem to rely on seniority a lot, even though technically not required to do so. Why? Because it is easy to determine and use. It also carries with it a sense of fairness. Other systems just seem prone to abuse or arbitrariness.

For economic reasons, an employer may want to seem to be fair, but as a matter of law, in New York, employers don't have to be fair.

Seniority systems become binding only in two circumstances: where there is a union, and in the civil service. Where there is a union, seniority becomes binding because of the collective bargaining agreement. Technically, unions do not have to seek a seniority system when they bargain for their members, but I don't recall ever seeing a union contract that didn't have something about seniority in it.

In the civil service, applicable laws make seniority a concern, either directly or indirectly.

In you situation, even though the employer has long used a seniority system, there is nothing in the law preventing the employer from dropping the seniority system.

If the new system is being used to get back at employees for protected reasons, such age age, race, sex, etc., then the affected employees might have a claim of discrimination based on the employer's actual motivation, but, again, not for simply dropping the seniority system.

posted Sep 9, 2002 3:49 PM [EST]

Answer to Signed a non compete under duress

Non-Competes Signed under Duress

In answering your query, I will assume that, even though its an Indiana company, you work in New York, and the agreement says nothing about which state's law is to be applied. My answer is based on New York law. Although Indiana law is probably similar, if Indiana law applies, or the law of some other state, my answer might be different.

These non-compete clause have become very common in the IT field, as well as the health care field. They have become so common because employers have a hard time holding onto employees in these fields.

I doubt that the circumstances you describe would be considered duress, but that really does not matter. New York courts tend to look at non-compete agreements involving employees with a good deal of disfavor. Note that I said tend. Under the right set of circumstances, they will enforce them, particularly if you are fairly compensated for the time out of the labor market.

The 2 year duration of the agreement would be considered to be long. Because you are a New York employee working for a company in Indiana, I will assume that the agreement has a national geographic scope. The long duration of the agreement and its broad geographic scope will tilt things in your favor with a court.

Overall, the likelihood is that, if the employer were to sue you over the agreement, you would probably win. But it would probably cost you a fair amount in attorneys' fees to win.

The cost of winning is the reason that I continue to tell employees not to sign these things. The fact that employers are asking employees to sign these things indicates that getting a job in the field is probably easy, so that you could probably easily find another employer not using these agreements.

Here is a little information that tells you a lot about the mind-set of corporate America these days. The information that I have suggests that employers generally do not enforce these agreements. They know they will lose if they try. What does that tell you about the candor of corporate America when they have you sign something they know they can't enforce, and then threaten you with it when they fire you?

A lot of attorneys will tell employees not to worry about these non-competes because employers tend not to enforce them. But no attorney can ever guarantee that the employer will not attempt enforce it in your case.

posted Aug 27, 2002 09:44 AM [EST]

Answer to Health Insurance Benefits Terminating

Benefits where there is a union

Because you have a union, contact the union to have them start the process of potentially starting a grievance. You may need to push the union. If your first contact does not act, go over that person's head.

posted Aug 22, 2002 08:42 AM [EST]

Answer to do i have some kind of case against my own company?

The Abusive Boss

The real question is why this manager is so abusive to you. The answer to that question will determine whether you can do anything other than quit.

Under New York law, an employer does not have to be nice to you. In fact, an employer can be downright abusive, unless the reason for the abuse is something which is protected under statute. So, it isn't alright for an employer to be abusive because you are black (or white), a woman (or a man), or of a different religion or ethnic background. But the trick is coming up with some amout of proof which show that the reason is that protected criteria.

If you assert or attempt to assert certain rights protected under law, such as workers' compensation benefits, or health insurance benefits, and your employer gets angry and abuses you for that, that reaction might be considered to be retaliation. Under the right circumstances, retaliation is illegal, and you could do something about that.

posted Aug 15, 2002 10:45 AM [EST]