Answers Posted By David M. Lira

Answer to HELP!

When is it discrimination?

Not all forms of discrimination are illegal. Discrimination becomes illegal only if you can show that certain conduct is motivation by your membership in a protected classification. Gender is a protected classification, as is disability or handicap.

On the basis of this, nos. 1 and 3 probably aren't discriminatory, unless you can tie the behavior to 2 or 4.

Number 2 might be handicap discrimination, depending on the nature of your medical condition. Your medical condition may or may not be a disability, depending both on the nature of the disability and the law you rely upon. Under the American with Disabilities Act, you are probably don't have a disability because that law's definition of disability is read so narrowly. You might have a disability under New York State or even New York City law.

Number 2 might amount to a failure to provide reasonable accommodation, which could violate the law.

Number 4 might amount to sexual harassment, which is a form of gender based discrimination. Whether it actually amounts to sexual harassment depends on the nature, severity and frequency of the conduct.

posted Apr 23, 2002 10:24 AM [EST]

Answer to Laid off with very short notification notice

Seniority and Notice of Lay Off

The basic rule in New York is that you can be terminated at any time, for any reason. You are not entitled to any advance warning.

There is an exception to this general rule under a federal law called the Workers Adjustment and Retraining Notification Act (WARN). But WARN generally applies only to employers with 100 or more employees, and to lay-offs involving 50 or more employees at a single facility.

If WARN applies, you are entitled to 60 days advance notice. You can sue under WARN, but what you can get is limited.

posted Apr 1, 2002 08:40 AM [EST]

Answer to Abusive Boss...is it harassment?

The Abusive Boss

The employment at will doctrine is still in effect, and shows little sign of weakening. With reference to the abusive boss, the employment at will doctrine means that you boss does not have to be nice to you. In fact, the boss can be downright nasty and completely unreasonable, provided that the boss's conduct does not start to brush up against laws prohibiting that particular type of conduct. The abusive boss not infrequently wanders into the area of illegal conduct because the abusve boss often thinks he or she is beyond reproach. They are, of course wrong.

Here are some examples:

Recently, I got a new case. Originally, this woman came to me with a discrimination claim. We went over the facts, and it turned out this abusive boss was an equal opportunity SOB, so there was no discrimination claim. But, I found out that the boss never paid this woman, a secretary, overtime, and she was putting in a lot of overtime. There was no discrimination claim, but I believe there is a very strong claim for unpaid overtime under the Fair Labor Standards Act. And, believe it or not, this boss is a partner in a very large law firm. All other secretaries in the firm are apparently paid overtime.

I have heard of many instances of abusive bosses withholding paychecks as a means of punishing or compelling employees to do something. This type of behavior can often violate New York State law, which basically requires employers to pay their employees promptly. You can go to the Department of Labor, or even court, with a complaint.

I would watch out for any instances of the abusive boss withholding benefits you have earned, including vacation, medical benefits, and sick leave. There isn't necessarily a violation of law there, but there might be.

Now, I find abusive bosses like to pick out some personal charactistic about an employee, and abuse that employee based on that characteristic. Here, the abusive boss can get very close to violating the anti-discrimination laws, but whether there is actually a violation will depend on the details of the conduct and its frequency. So, if the abusive boss starts to pick on you on the basis of a characteristic that points to your race, religions, national origin, gender, age, or a physical or mental defect, then that might amount to illegal harassment.

To illustrate, suppose the boss calls everybody in the office a dummy. In this case, there isn't much that can be done. But suppose the boss attachs the "dummy" comment to a personal characteristic, so that a woman would be called a "dumb bitch" or a Hispanic employee might be called a "stupid spic." Even if he does something similar to everybody in the office, each person might have a harassment claim, provided he does it often enough. And, the behavior does not necessarily have to be as obvious as this example. The key is that there be some tie to a characteristic that is protected by law.

Some remarks might be illegal when directed to some people, but not necessarily when directed to others. Suppose the boss calls everyone a "moron." That is probably not illegal, but it might be if directed to someone who has mental retardation or some other physical impairment which makes them seems slow or less intelligent than others. But, again, the details might be important.

In dealing with the abusive boss, there are also other things to keep in mind, including the anti-retaliation laws, and the National Labor Relations Act. Now, retaliation is not illegal, only certain forms of it are.

Generally, if you have a right protected by law, and you assert it, it would be illegal retaliation if the boss punishes you for asserting that right. For example, let's say your child gets hurt and is taken to a hospital. You take a couple of days off because of that. When you return to the office, the abusive boss screams at you, and fires you. In that case, you might have a claim under the Family Medical Leave Act (provided the employer is big enough, and you have been tere long enough).

Here's another example. Suppose you observe the boss yelling at another employee. That employee complains of discrimination to human resources, but, let's assume, there really isn't any illegal discrimination. You support this employee by confirming that employee's description of the boss's conduct. The boss fires both you and that employee. Both of you have retaliation claims under the anti-discrimination laws, even though there might not have been a viable discrimination claim.

Here's a final example: Let's say there is a problem in the office which is making everybody uncomfortable, for example, the ventilation is bad, it's too hot or too cold. A few of you together go to the boss to complain. He or she goes nuts. Maybe one of you get fired. The rest are subjected to a pattern of sustained abuse. Because you acted together, you might have a claim under the National Labor Relations Act. That is, you might have union-like protections, even though there is no union in your particular workplace. But this will work only if two or more of you work together.

posted Mar 22, 2002 09:15 AM [EST]

Answer to Harassment - Retaliation by Employer

It's probably not what you think

I don't like what this President is doing to this other employee. It is underhanded, and unnecessary. If this other employee is such a bad performer, this little dance this President is having people do is unnecessary. Just fire this other employee. Firing someone for poor performance is perfectly legitimate.

If this employee is not the bad performer the President makes her out to be, then the question is what is the real motivation for getting rid of her? This is important for you to know, because the answer might be of help to you.

If this other employee is really a performance problem, or if the President just does not like her, then what happened to you may be unfair, but it is not illegal. Technically, it is neither retaliation or harassment. In NY, an employer is not required to be fair or nice to employees.

If this President want this other employee out because she won't give in to his demands for sex, or because she's black, Muslim, Hispanic, up there in years, handicapped, etc, then you might have a retaliation claim, but only if your refusal to write her up is because you don't want to get involved in his discriminatory conduct. If you act or refuse to act in opposition to discrimination, then the law grants you protection from retaliation for your refusal to give in.

posted Mar 21, 2002 10:11 AM [EST]

Answer to Young, dumb and fired/layedoff I'm not even sure they know

It's not defamation yet

Actually, I can understand your employer's reaction to your having a friend just tag along with you in a sensitive area. You may have meant nothing by it, but I think any employer with a big computer operation like the one your employer has would have reacted the same way.

I think you'd be better off admitting to your employer that you didn't realize you were doing anything wrong, but now you understand the basis of their concern.

At this point, you have no defamation claim, for a couple of reasons. One, truth is an absolute defense. The fact of the matter is that you did breach security, maybe unknowing, maybe with no intent to cause harm, but you nonetheless breached security. Second, even if we assume that employees are saying things about this incident which can be considered defamatory, if the communications all take place inside the employer, the communications are probably at least qualified privileged. You might be able to overcome the privilege, but that would be very difficult to do.

Note that simply because a statement about you may be negative, that does not make it defamatory. Defamation is basically a seeming statement of fact which is false and injurious. An opinion, even a strongly negative one, is not defamation.

If you are fired and find yourself having a very difficult time finding a new job, it may be because of a negative reference from your former employer. There are services that you can find on the web which will check those references for you. If the negative reference rises to the level of defamation, then you might be able to sue.

But note that defamation suits are hard to win. To begin with, you have to know exactly what was said. That's why its important to have the references checked.

Note that there is no record out there on you. Your employer may have a personnel file on you. But that is rarely, if ever, passed on to anyone else. The likelihood is that this mistake will not haunt you for very long.

As for getting your personal property back, if worse comes to worse, you can get that back by starting a replevin action in court.

posted Mar 21, 2002 09:55 AM [EST]

Answer to Contract breach

It depends on what the contract says

I cannot advise you based on an e-mail inquiry. On this site, we merely answer general questions with general answers. Your query requires something more specific.

If your employer is claiming a breach of contract, then we need to start with what the contract says. I hope you have a copy of it.

Next, we need to know what the employer is saying now about how you breached the contract.

Note that you have up to 6 years to bring a lawsuit for breach of contract, so that the 1.5 year hiatus is really no issue at all.

posted Mar 21, 2002 09:26 AM [EST]

Answer to Notice of lay off

WARN

The answer is: Not always. It will depend on the size of the company, the size of the lay-off, the location of the employees involved, and the size and locations of the facilities where the are located.

posted Mar 15, 2002 10:26 AM [EST]

Answer to Affirmative Action Responsibility

For Helping Someone

Your query really contains an insufficient amont of information, so I can only guess at what your options might be. However, it does seem as if you will have certain protection.

You talk about an "agency." To me, that implies you work for a governmental entity. If that is the case, then you have a number of important protections under the New York Civil Service Law, including the fact that you cannot be fired except for cause.

Something about your query suggests that you might be a union member. If that is the case, you should consider consulting your union, for the purpose of filing a grievance over your treatment.

Something else about your query suggests that you work for some kind of health care facility. Although I am not familiar with the regulations concerning patient abuse, it is possible that you might have additional protections under regulations concerning patient abuse.

I don't know if this mentally retarded person is an employee of the agency. If he is, than you have protections under the anti-retaliation provisions of the New York State Human Rights Law. If this person is a client or patient, you still might have protections against retaliation under the HRL. You really don't have a harassment claim, because you are not being picked on because of your membership in a protected class. You are being picked on because of helping someone else in a protected class. Technically speaking, that is retaliation, not harasment.

posted Mar 6, 2002 12:09 PM [EST]

Answer to How long is "temporary lay off" ?

Temporary Layoffs

The law generally does not make a distinction between a permanent and temporary layoff. Thus, you should be able to get unemployment compensation.

An employer may make such a distinction, but whether you are entitled to severance will depend on how the employer gave you the severance. Generally, employers don't have to give you severance, and you have no right to it. If the employer does give it, then it might fall under ERISA. If it falls under ERISA, the employer has to be careful that all similarly situated employees get it on the same basis, and that it does not interfere with an employees right to receive it. A key in determining whether you have severance rights under ERISA is whether there is something in writing telling you when you are entitled to severance, and how to determine the amount of severance you are entitled to receive.

Any attorney that you may see about your situation will want to see the writing concerning severance.

Accrued vacation generally cannot be taken from you. One way or another, you should be able to get your vacation pay.

The complicating feature in all of this is the bankruptcy, if there is one.

As you can see, I am located on Long Island, so feel free to contact me.

posted Mar 4, 2002 10:59 AM [EST]

Answer to Wrongful Discharge:DRP

Suing After Arbitration

You query raises many more difficult issue than you think.

Let's start with this internal complaint processing process the employer has. Although I would need a lot more information from you about this process, it is possible that you have somehow bound yourself to the process so that you can no longer go to court.

About the mediation process. Mediation is inherently voluntary. Although there is no way for me to know whether your employer is bound to the results of the peer review process, if it is, if you cannot reach an agreement satisfactory to you at mediation, then the peer review determination remains. That is, if there is no agreement at mediation, you're stuck with what you've already got.

Arbitration is the process in which the results are not voluntary. But, one issue with arbitration is going to be the scope of the arbitrator's authority. Does the arbitrator review the case anew (de novo review)? Or does the arbitrator act in an appellate role, where it might be more difficult for the manager to overturn what you've already gotten? There is no way for me to answer these questions. It depends on how the program is set up.

There is also an issue of whether you are bound to submit to arbitration. This area of law is currently very much in flux. No one can give you definitive answers. Some people argue that you are not bound to go to arbitration if the process is unfair. But no one knows what makes an arbitration program fair or unfair, as yet.

posted Feb 14, 2002 11:30 AM [EST]