Answers Posted By David M. Lira

Answer to Fired as a Bank Associate for being less than $90 over/ 1st time

Social Bias

New York is an employment at will state. That means that, unless you fall under an exception to the general rule, you can be fired at any time for any reason or eaven no reason at all.

Nearly all of the exceptions, and certainly all of the significant exceptions, to the employment at law rule are contained in statutes such as the New York State Human Rights Law, the Civil Rights Act of 1964, and the National Labor Relations Act (which allowed employees to unionize). There is no statute that I know of which deal with "socially biased reasons." In other words, an employer can certainly fire you for being $90 over, even if it is the first time. In cases like this, the most likely source of help would be a union, since every collective bargaining agreement I have seen has limited the circumstances under which employees can be terminated.

Incidentally, many large employers have elaborate procedures which mimic union protections. Employers use these to convince employees they don't need to unionize. The problem with this in New York, however, is that employers are in most instances free to ignore their own procedures, and fire you despite what the procedures say.

posted Aug 15, 2002 10:31 AM [EST]

Answer to THREAT OF TERMINATION

Accessing Credit Reports

If, for example, another employee squealed on you, telling the employer about the arrest, you'd probably be out of luck. Because New York is an employment at will state, the employer could fire you, even though the arrest was wrongful.

New York has a law prohibiting discrimination based on a record of conviction, but that law is read very narrowly. In any case, you were never convicted, so you're not even covered by the law.

What I'm interested in is this "background check." How did the employer conduct this check? I would want to check if your credit report was accessed recently. If your employer, or a detective agency for your employer did so, then you'd have something. Interestingly, your employer would be covered by a law that usually applies only to collection agencies, and credit reporting companies.

I suggest that you call me.

posted Jul 15, 2002 09:38 AM [EST]

Answer to Fired for having an accident

Getting the Last Pay Check

There isn't anything you can do about being fired. New York is an employment at will state, meaning you can be fired at any time, for any reason, or no reason at all.

You might have a case only if you sincerely believe that the real reason for your termination had little to do with the accident, and that the real reason had something to do with things like your race or national origin, or because you asserted some other right, such as filing for workers' compensation benefits or health insurance benefits. If this is the case, then what you realy have is a possible discrimination claim. But only possible. Your case would need to be more thoroughy evaluated.

You can do something about the boss withholding your last pay check. In NYS, that is illegal, even if you owe the boss money. The best way to handle this situation is to contact the New York State Department of Labor.

But note, if your boss thinks you owe him money, he can still take you to court. Don't ignore a summons he might serve on you, because you might one day find somebody you don't know making a withdrawal from you bank account.

When it comes to your boss hounding you at home about the money he claims you owe him, call the police.

posted Jul 9, 2002 12:35 PM [EST]

Answer to More Time

More Time to Answer

Whether your case is being investigated by the EEOC or the State Division, the fact of the employer asking for more time means little more than that the employer needs a little more time to put together a response.

The amount of time the employer requests to put together a response means little, but the real concern is how well you have articulated your case.

Now the likelihood of the EEOC doing much on your case is not good. Just to give you an idea: the EEOC receives thousands of charges each year, but brings fewer that 300 lawsuits each year. If the EEOC turns down your case, it very often has nothing to do with what they think of your case. However, they do issue no probable cause determinations in cases they investigate, and believe have no merit.

The State Division has to eventually do something with your case. But you have to realize that they are badly backlogged, and understaffed. What that means to you is that the State Division cannot afford to give your case a lot of time and attention.

They will base their decision on probable cause on what you and the employer give them. And, to a very large extent the adage of garbage in, garbage out applies.

In other words, if you fail to focus on the right issues, and if you fail to tell the Division what they need to hear, you may well end up with a no probable cause letter. A no probable cause letter basically means the Division does not believe you have a case.

I have too often seen employees with good cases being bounced out of the EEOC or Division, not because the EEOC or Division does not care, but because the employees were never able to identify the really important facts in their case, and, as a result, never communicated those important facts to the EEOC or Division.

Frankly, this is where attorneys come in. An employment lawyer can give your case time and attention. An employment lawyer, after all, does not want to take a poor case. As a result, a good employment lawyer will thoroughly evaluate your case. A good employment lawyer will look at your case, and work with you to develop it.

Most assuredly, an employment lawyer might look at cases in stages. For example, before I will accept a case, the case has to pass at least two stages of evaluation.

If I turn down a case (and I turn down many more than I take), I will tell you why. And, if I turn down a case, there is a very good chance you don't have a case.

posted Jul 9, 2002 12:13 PM [EST]

Answer to Salary employee but treated as an hourly employee

Employer Escaping Overtime

Employers like to pay employees "on salary," because that way they think they can avoid paying overtime, and depending on the business, that can be a considerable saving. And, employer like the control they have over hourly employees. SO, not unusually, employers will try to pay employees on salary, but then make the same demands on those employees that they do for hourly employees. When employers do this, they are courting trouble. They can't have it both ways.

Actually, the legal presumption is that all employees are hourly employees unless the employer can show that particular employees fall under certain exceptions to the governing law, the Fair Labor Standards Act. Even if the position would otherwise be exempt from overtime and minimum wage requirements, an employer could lose that exemption by treating that employee as hourly, but doing such things as docking an otherwise exempt employee for being late or leaving early.

Further, if an employer does something to stop an employee from asserting his or her rights under FLSA, such as firing that employee, other provisions, which prohibit retaliation, would protect the employee.

An employee can enforce his or her rights by filing a complaint with the Dept of Labor, or going to federal court. The FLSA and New York State equivalents, also provide for attorneys fees, so that employees are able to find private attorneys willing to take the case on a contingent basis.

posted Jul 1, 2002 09:16 AM [EST]

Answer to Breachment, Non-Compete Agreement

Unpaid wages

When you are dealing with written agreements, a competent attorney will not comment without seeing all of the paperwork.

If you have been sued, you have a duty to respond, and respond fairly quickly. The consequences of failing to respond can be fairly harsh.

It sounds like you husband work for 5 months without pay. This could be a source of considerable trouble for the ex-employer. But I would need to know more.

You really can't handle this thru hit or miss questions to a website. Employment issues are often complex, and tricky even for experienced attorneys.

I strongly suggest that you call me.

posted Jun 17, 2002 09:04 AM [EST]

Answer to NYS Non-Competion Agreement and Former Employer

Non-Competes in IT

I cannot provide specific legal advise in the context of this website. If you want to discuss your specific situation, you'll need to call me.

In general terms, non-compete provisions have become very common among IT professionals, probably because IT personnel are so difficult to retain these days. It seems there is always a better offer from someone else.

When employers start to use non-compete provisions frequently, they are not doing so because it is standard procedure, and certainly not to help you. The frequent, indiscriminate use of non-competes by employers is designed to impede the career advancement of employees.

Non-competes are negotiable. My standard advise when faced with a non-compete is DON'T SIGN THE AGREEMENT. You can get a better offer elsewhere.

New York courts are not very receptive to non-compete agreements, at least in the employment context. In lawsuits on the enforcement of non-competes, employees win very often. But to win, employees may have to spend a lot of money on legal fees. The costs are so high, employees are usually financially better off turning down a job offer with a non-compete and waiting even months for one not involving a non-compete.

The good news is that employers also have to spend a lot of money trying to enforce non-competes. Because they know that, and because they also know they will likely lose, they often decide not to enforce non-competes. They include it just to scare and confuse employees.

See the ethical problem. An employer gets an employee to sign a provision the employer knows is probably not enforceable, and the employer even knows it will never enforce it. It's just a lot of legal trickiery and dishonesty. Do you really want to work for an employer like that?

posted Jun 4, 2002 09:19 AM [EST]

Answer to Non-compete invoked by one subcontractor against another

When the employer threatens to enforce non-compete

My standard advise to an employee presented with an employment contract with a non-compete clause is don't sign it. You are buying yourself a lawsuit. You'd probably win the lawsuit, but you'd probably lose a job in the meantime, and incur some very large legal fees.

Courts in New York State are very reluctant to enforce non-compete clauses in employment agreements because they impede the ability of employees to make a living and advance in their choosen fields. Non-competes impede the competive market for qualified employees. (The courts, however, seem to have little reluctance in enforcing non-compete clause in agreements for the sale of a business.) However, all of this does not prevent employers from including non-competes in employment agreements.

Non-compete clauses seem very common these days in the IT area and in the medical area. They seem to become common in areas where employers have a hard time recruiting and retaining employees. Employer will include non-compete clauses in their employment agreements even though they know they have little chance of getting a court to enforce them.

You always have the option of ignoring the clause and going to work for a new employer. However, you and your new employer might get a letter from an attorney representing your old employer, threatening to sue both you and your new employer. The new employer not uncommonly responds to the letter by firing you, saying that it doesn't want to get dragged into a lawsuit. If the new employer does not fire you, then the old employer might actually bring suit against both you and your new employer to enforce the non-compete clause. The likelihood is that you will win this lawsuit, but not after spending a lot of money.

Do you see how the non-compete clause works? The very threat of a lawsuit may make you unemployable in the field you are most qualified for. Unless you decide to change careers, the clause in effect causes you to be suck with your old employer, and, because no one else will hire you, your old employer dictates all of the [very unfavorable] terms.

To preempt the employer, you could bring a declaratory judgment action and seek a preliminary injunction against your old employer. You have a good shot of winning, although I do have to say that courts are reluctant to issue preliminary injunctions. The downside of this preemptive stratgey is that it will still cost you a lot in legal fees.

When you enter into a non-compete clause you are putting yourself between a rock and a hard place. Any way you go, it is going to cost you a lot of money.

If you want out from under the non-compete, you have no choice but to fight.

I suggest you give me a call to discuss you case in more detail.

posted Apr 30, 2002 6:05 PM [EST]

Answer to Vacation reimbursement

Vacation Pay

Generally, under New York law, when an employee leaves an employer, whether voluntarily or involuntarily, the employee is entitled to the vacation pay, because that is considered earned. The same would not be true for sick leave.

posted Apr 25, 2002 12:32 PM [EST]

Answer to terminated with a lie

Terminated on a lie

I have a problem answering your question because I don't know enough. If I were speaking with you on the phone, one question I would ask you is, why do you believe you were fired? This question, as well as others, might lead to information suggesting to me that your termination is illegal.

However, all I have to work with is the information you provided. Based on that, I have to say that the employment at will doctrine provides the answer. The employment at will doctrine says you can be fired at any time for any reason, even no reason at all, and even a reason which is knowingly or unknowingly untrue. So, the fact that you were fired for a false reason gives you nothing.

posted Apr 23, 2002 10:41 AM [EST]