Answers Posted By David M. Lira

Answer to Have I been discriminated against?

The Conjunction of Two Laws

You provide an interesting set of facts. You might have a pregnancy discrimination claim, but you might also have a Fair Labor Standards Act claim.

Actually, at this point, your pregnancy discrimination claim isn't all that strong. All you have is that you told them you were pregnant, and two weeks later you're having trouble. You may well have more information to bolster your claim, and, in a lawsuit, you might be able to get more proof to further bolster the claim. However, generally, just because you are pregnant (or black, or white, or etc.) and something bad happens to you does not necessarily mean you have been discriminated against. It might suggest you have been discriminated against, but it does not prove it.

By using your leaving early as the basis for firing you, your former employer may have created a mess for itself. They were treating the supervisors as "exempt" employees, that is, employees who are not entitled to overtime pay. But the rules on who is exempt really are fairly strict, and tend to favor the employee, unlike most areas of employment law.

One of the benefits of being an exempt employee is that you don't have to strictly account for your time. If you come in late or leave early, or take a break during the day, the employer needs to stay out of it, unless you are not fulfilling your responsibilities.

By penalizing you for leaving early, the employer might have turned your position, and the position of every supervisor, into non-exempt positions, meaning that all the supervisors may now be entitled to overtime compensation, possibly going as far back as three years. That can add up to a considerable amount of money.

If you want to pursue this, feel free to contact me.

posted Feb 7, 2002 09:04 AM [EST]

Answer to RESCINDED RESIGNATION NOT ACCEPTED

Backing Out on Resignation

First, just for the sake of explanation, let's forget that the senior vice-president said anything nasty. So, the situation is that you resigned, but then changed your mind. Under these circumstances, an employer can refuse to allow you to take back your resignation.

This is because you are an employee at will. The employer could have fired you at any time, for any reason, or no reason at all. Your resigning, and the employer refusing to allow you to take it back amounts to the same thing as terminating you at will.

There is no law requiring an employer to notify of acceptance of a resignation, or to conduct an exit interview, where before or after resignation becomes final.

What I am interested in is just not the nasty comments, but also the nature of the comments and any history of difficulties with this SVP. A boss does not have to be nice, but a boss has to avoid being nasty because of or based on some protected criteria, such as race, gender, national origin, etc. If the nasty comments were based on or motivated by your membership in a protected class, human resources at the very least has a duty to take notice of your complaint.

I would say that, if there was a history of simalar problems with this SVP, particularly if you have complained before, then may be you have a claim. But you certainly made it more difficult by resigning.

posted Feb 4, 2002 1:28 PM [EST]

Answer to Can I beat my "non-compete"

Transferring Non-Competes

The general rule is that a contract is assignable (can be transferred to another) unless the contract specifically provides otherwise, so the acquisition changed nothing. The new company can be assigned the contract, and it would be just as valid as it was with the old company.

However, under New York law, non-compete provisions are looked upon with much disfavor. In other words, if push came to shove, the non-compete clause is probably not valid. But that will depend not only on the terms of the agreement, but also the details of your actual job.

Whenever someone comes to me for a review of an employment contract with a non-compete clause, I tell them the same thing: If you sign that agreement you are buying a lawsuit. You'll probably win the lawsuit, but it's going to cost you a fair amount of money in attorney's fees. My feeling is that it is probably cheaper for you to just walk away from a job where the employer wants a non-compete.

Except on those rare occasions where an employer has legitimate concerns about protecting proprietary information, the only reason employers want non-competes is to lock you in to them. They want to lock you in because the market for your job is probably pretty competitive, so that you probably have a choice of jobs. So, my bet is that, in most cases where an employer wants a non-compete, you have very little to lose if you say no, and a lot to lose if you say yes. You have little to lose because you'll probably find another job fairly quick. You have a lot to lose in that, to get out of the non-compete, you either have to start an entirely new career or fight it out in court.

posted Jan 31, 2002 09:09 AM [EST]

Answer to demanding that severance be returned

Laided Off and Rehired

With reference to whether she has to pay back severance, you are right that the key is the severance agreement. So, she has a right to keep that money.

But whether she has a right to keep the new job is a different question. Because we are in New York, she is an employee at will, so that the employer seems to be within her rights to fire her.

But there seems to be a third question: whether the employer can terminate her without incurring further liability on the severance agreement. Again, the wording of the severance agreement may be critical. Although I'm not entirely sure it would work, your wife just might have a claim for damages, but not the job, against the employer if the employer fires her for not paying back the severance money.

Your question raised another issue about her being treated as a new hire. That is not an easy question to answer, and may require review of further documentation. But let me say this: if the job involved no benefits as all, and there was no union, the employer probably could treat her as a new hire. If she is getting pension or health care benefits, to answer your question I would have to see the "summary plan description," and maybe the other plan documents to answer that question. But my guess is that for pension and health insurance she can't be treated as a new hire. Your wife would be entitled to copies of these plan documents on request. I am sure that for other benefits such as unemployment compensation, workers' compensation, FMLA (family leave) the statutes would control, and she probably would not be treated as a new hire. But that may depend on how long she was out of work before rehired.

posted Jan 30, 2002 09:29 AM [EST]

Answer to Contract language for terminating the agreement

Involuntary Servitude

If your quote from the argeement is accurate, I think your best course of action would be to find a job with someone else. You are just asking for trouble taking a job with this hospital. If you sign this agreement, you are almost certainly buying yourself a lawsuit. You'd probably win the lawsuit, but it would probably cost you a lot in legal fees to win.

The agreement is one sided, but, worse, the first part of the quote indicates that the employer has never heard of the 13th Amendment. The 13th Amendment eliminated slavery. It's been around a while.

I've seen some case law saying that the 13th Amendment basically prohibits employers from locking in an employee. Employers cannot prohibit employees from leaving them. Employers might, under the right conditions, prevent employees from going to work for competitiors, but locking in an employee to a particular employer, even for a limit term, is considered a form of involuntary servitude, which is prohibit by the 13th Amendment.

Boy, there must be a very tight labor market for people in your position. That, or this employer is worse than I think.

posted Jan 18, 2002 5:06 PM [EST]

Answer to Am I entitled to severance.

Fired with 4 Days Left

Employers don't have an obligation to pay severance, but your query said something very significant. Your said your employer has a "severance plan." If the plan is something formalized, it might be covered by ERISA. Whether you are entitled to severance would depend on what the plan says. Get a copy of the summary plan description for this severance program. But that would be only a starting point in answering your questions.

posted Jan 9, 2002 12:55 PM [EST]

Answer to good case against big company

Terminated for Weight Restrictions

Your situation actually raises a number of interesting legal issues, but to answer your question: I doubt you have a discrimination case.

In theory, you might have a handicap discrimination case, but you have two significant problems there. The first is that your disability is probably NOT considered to be a disability under federal law. New York State Law defines disability more broadly, so that maybe you fall under the protection of the state law, the Human Rights Act.

However, and here is your second problem, you can't do the unloading job, because of your disability. Because of that, you are not qualified for the unloading job, and can be terminated from it for that reason. Handicap discrimination cases always have to involve a job which the person making the came can perform, with or without "reasonable accommodation." Reasonable accommodation basically means with some type of limited help.

We would probably have to measure against the unloading job and not the sales job. Because you were out so long, the employer had no duty to keep your sales job open for you. Under the Family Medical Leave Act, the employer only had to keep it open for a maximum of 12 weeks. In giving you the unloading job, they were doing you a favor.

Perhaps you might be able to set up a claim that the employer put you in the unloading job just to set you up for termination. They had the sales job available but decided not to return your there. If this is the case, then the key issue is why the employer did that. One possible reason might be that you made a Workers' Compensation claim.

In that case, you might have a workers' compnesation discrimination case. But those cases are hard to prove and win because you have to prove a very narrow ground: that the actions the employer took were motivated by your filing a workers' compensation claim. Workers' compensation discrimination cses are filed with the Workers' Compensation Board, not the State Division of Human Rights or the EEOC. Be very careful about that.

The Workers' Compensation motivation is not necessarily the only possible motivation for setting you up for failure. Conceivably, the motiviation might have been your disability, but to succeed on that you would probably need to prove that the employer had a pattern of setting up disabiled employees for failure. That sounds like it would be difficult to do.

posted Jan 9, 2002 12:49 PM [EST]

Answer to Sorry- I put it all in the question field!

Double Retaliation

The real answer to your question is: I don't know. Maybe.

Don't get me wrong, the factual situation that you describe suggests that you and your wife were subjected to retaliation for your both complaining about the sexual harassment of your wife. If your being laid off was even only partially related to your complaints, you would have a claim.

But, complaining and then being laid off does not necessarily have to be related. It could be coincidence, though I seriously doubt it.

The problem is that there is no way for you to know for sure whether your being laid off was related to your complaints. The only ones with that knowledge are with your former employer. They would probably never be willing to volunteer the truth, and might be likely to attempt hiding the truth.

The result is that at this point I am not interested in proving that you were subjected to retaliation because you probably don't have that evidence, and I would be able to get it only after starting a lawsuit. But you probably have a lot more information suggesting a connection between your complaints and your lay-offs. That additional information would allow me to give you a better answer to your question.

At the very least, it would probably be worth while for both you and your wife to discuss your situation in greater detail with me.

posted Dec 20, 2001 09:32 AM [EST]

Answer to still waiting for commission payment....

Unpaid Commissions

Yes, there are laws in NYS requiring relatively prompt payment of both wages and commissions. But neither law is self-executing. Meaning, if your ex-employer is in violation of the applicable law, you need to file a complaint somewhere, even small claims court if the amount owed is small enough.

posted Dec 17, 2001 10:46 AM [EST]

Answer to Law suit

They Don't Have to Be Nice

Whenever I respond to a query like yours, there is always a very real risk that there are critical facts that you have not stated. Any answer that I give must necessarily be restricted to the information you provided. If there is more to you case, then you should contact me.

Based on what you have written, you probably don't have a viable case against your employer. This is because of the employment at will doctrine. Besides subjecting you to termination without notice or reason, the employment at will doctrine also states that employers don't have to be nice to you. They can treat you badly.

The mistreatment is not illegal as long as it is not motivated by a reason made illegal by another law. For example, if the mistreatment you are receiving is based on something such as your race, religion, national origin, gender, age, or handicap, there may be a case there.

posted Dec 14, 2001 11:01 AM [EST]