Answers Posted By David M. Lira

Answer to The reason for termination was given as a reorganization due to WTC . Additional facts are available

Details needed

The fact that your position was filled with a younger, less qualified person is helpful but not determinative on a claim of age discrimination. Details are needed. Therefore, I suggest that you call so that we can get into those details.

Just note, however, that the fact of a reorganization is an important fact, assuming there really was a reorganization affecting a number of employees. Courts are generally very deferential to employers undergoing reorganizations or reductions in force, although, again, the fact of a reorganization is not determinative.

posted Oct 30, 2001 10:18 AM [EST]

Answer to Working without contract

Overtime over 40 hours

Unless there is wording in your contract stating otherwise, going over the 1000 in you agreement will not get you overtime. What gets you overtime is if you worked more than 40 hours in any particular week, and that is whether you have exceeded the 1000 in the contract or not. Your contract cannot deny you overtime compensation, even during that 6 month/1000 hour contract period.

posted Oct 23, 2001 09:04 AM [EST]

Answer to Wrongful Termination

Termination Allegedly for Performance

In NY State an employer does not need a valid reason to terminate an employee. The reason can even be untrue, and you could not do much about it. This is because of NY's employment at will doctrine.

The probably is that there is nothing much you can do, unless you can show that your termination falls into one of the exceptions to the employment at will doctrine. Basically, an exception says that you can be terminated for any reason or no reason at all, provided that the reason is not one prohibited by law.

Exceptions to the employment at will doctrine include employment agreements, and anti-discrimination laws.

Please note that there are statute of limitiations attached to the exceptions. The applicable statute of limitations varies depending on the statute and right involved, and can vary from 120 days to 6 years.

posted Oct 22, 2001 09:41 AM [EST]

Answer to Slander in the office

Accused of leaking sensitive information

Defamation is not an easy thing to prove in NY State. Just to begin a lawsuit, you need to know who said something defamatory. You also need to know, word for word, what they said.

Further, simply because someone says something nasty about you does not mean that it is defamation. If it expresses an opinion about you, it is not defamation. If it says what appears to be factual information about you or what you have purported done, it might be defamation.

Even if we assume it is defamation, it might be protected. In other words, even though a statement might be defamatory, whether you can do something about it depends on to whome the statement was made. For example, if the statement pertained to your work, and it was said to your employer, there is a good chance that you would not be able to do anything about it because there is a good chance that the statement would be considered to be privileged.

This meeting that your employer is setting up might be an example of mediation, but there is no way for me to know for sure. In a sense, mediation is a non-legal process, although legal issues can figure prominently in mediations. It is a fairly informal means of addressing and resolving disputes. If done right, it can be a very rewarding process which can lead to very creative solutions to various kinds of problems. It isn't unusual for lawyers to be involved in mediations.

posted Oct 19, 2001 10:36 AM [EST]

Answer to discrimination based on a perceived disabilty

Diabetic removed from position

Your query isn't entirely clear, but I will assume that the airline has decided not to permit you to resume your duties in any position. You haven't been terminated, but you are also not working in any position. Any pay you are drawing consists of accumulated leave.

It also sounds as if you have read up at least a little about the Americans with Disabilities Act. The ADA defines the term disability in three ways: (1) you actually have a disability; (2) you have a record of disability but no longer have it; and (3) you don't have a disability but your employer thinks you do.

There is more to the definition. Generally, the disability, whether actual, a record of or perceived, must be such that it limits you in a major life activity. Exacting what constitutes a major life activity isn't entirely clear, but it would include things like walking or seeing. So, if you are in a wheelchair, it is a fairly safe bet you are considered disabled. If you are completely blind, you should be considered disabled.

But the ADA has been read by the courts in a very narrow way, so that I would have doubts that any disabling condition is a disability under the ADA, unless the disability is so bad that it essentially makes you unable to work, in which case the employment provisions of the ADA aren't going to help you anyway.

Under the ADA, whether you would be considered a person with a disability would be problematic at the very least. I have seen some ADA cases saying diabetes is not an actual disability, but this determination is supposed to be done on a case by case basis, so that conceivably, but doubtfully, your specific condition might be considered an actual disability.

Up until recently, most cases dealt with the actually disabled definition. Only now are cases beginning to address what it means to have a record of disability or the perceived to be disabled. So far the caselaw is murky, so that exactly what needs to be proven to when on a claim of record or perception of disability is unclear. But it still looks that under the ADA it is still going to be an uphill battle just to get a determination that you are covered by the law.

Fortunately, you are covered by the New York State Human Rights Law. HRL includes all of the definitions of disability that the ADA has, but adds one more, one that helps you a lot. You are considered as disabled if you have a diagnosis. You obviously have been diagnosed with diabetes, so that you are covered by the law.

Once you have been found to be a covered employee, things get easier. It seems clear that you are on non-duty status for no other reason than your diabetes. That would be illegal unless the employer can show that there is a fairly definite and immediate safety concern. In other words, it is not enough for an employer to say that you might as some indefinite time in the future have another episode.

Even assuming that the employer had a legitimate reason for putting you on non-duty status, there is still the question of whether you could do your job with accommodation. Even under HRL, there is a duty to reasonably accommodate.

What is a reasonable accommodation depends in the specifics of your job and your situation. I could probably help you with developing a reasonable accommodation, but you also would probably need the help of other professionals, like your doctor, in identify a reasonable accommodation.

Accommodation is generally something which is best negotitated. You may need to be creative and flexible about it.

I do not know of any law that gives you any right to hold you job or a temporary substitute for 60 days.

posted Oct 19, 2001 10:24 AM [EST]

Answer to 113 people laid-off: no notice

Lay-Offs Are Legal

Under NY State law, employees are generally considered to be employees at will. That means you can be terminated at any time, for any reason, or for no reason at all. There are certain exceptions to the employment at law doctrine. For example, you cannot be terminated if the reason is really discrimination based on some protected criteria such as race, religion, etc.

Courts tend to give employers a lot of lead way when it comes to lay-offs made for economic reasons. So, for example, even if you believed you were terminated in violation of some exception to the employment at will doctrine, courts will tend to side with the employer unless you come up with some pretty clear evidence of violation.

Now, your query suggests to me that you might have had in mind a federal law requiring employers to notify employees of lay-offs. THe law is called WARN. However, it applies only when an entire plant or location is closed down. It thus would not appy in a situation like yours, where only a small percentage of employees at your location is being laid off.

Note that WARN does not prevent the plant or location closing. It only requires notification before closure.

posted Oct 16, 2001 4:18 PM [EST]

Answer to fired due to two ins companys fighting who going to pay

Fired while out injured

Your question doesn't contain enough information to give you an adequate response, but it sound like you really have two different issues.

One issue is whether, having suffered a work-related injury which prevents you from returning to regular duty, your employer can fire you. The short answer is yes. There is no guarantee of continued employment. If you are unable to work, no matter what the reason, your employer is able to replace you.

But there are some caveats. For example, because you injury is job related, you are entitled to workers' compensation. Under NY State law, you cannot be fired because you filed a workers' compensation claim. But this is different than being fired because of an inability to work stemming from a work-related injury. You can be fired for the inability to work, but not because you made a claim on your employer's workers' compensation policy.

The other issue seems to be who should be paying your medical bills. Here, I really can't give you an answer. You mention two insurance companies, but I don't know who they are, or what type of coverage they are giving you. If one of them is the company providing your employer with workers' compensation coverage, you can hire an attorney (I don't do workers' compensation work), and get a hearing to decide whether the workers' compensation carrier should pay.

If one of the insurance companies is your health insurance company, make sure you get a copy of the summary plan description covering the plan. The SPD will spell out a lot of your rights, and what you may be able to do.

One option that you may have is to file a complaint with the New York State Insurance Commissioner. This route often proves useful, although it is really very informal.

posted Oct 10, 2001 12:09 PM [EST]

Answer to 401k plan terminated, company will not let employee get access to his account.

401k is Protected

The Employee Retirement Income Security Act ("ERISA")will protect what is in the 401k plan.

What you should first try to get is a copy of the "Summary Plan Description" to the 401k. You should be able to get that from either your employer or the company (bank, insurance company, or whatever) where the money in the 401k is placed. You are entitled to a copy of the SPD, and refusing to give it to you may, by itself, be a violation of law.

In any effort to get your money, the SPD will contain vital information.

If you have difficulties getting the SPD, or continue to have difficulties getting your money, you can go into federal court.

posted Oct 10, 2001 11:54 AM [EST]

Answer to Company asking for a new resignation letter

The Flip Side of Employment at Will

Employees working in the private sector in New York are assumed to be employees at will. This usually means that an employer can fire you at any time for any reason or no reason at all, with certain narrowly defined exceptions. The flip side of this, which seems to come into play far less often, is that an employee can leave a job at any time for any reason or no reason at all.

Thus, there is absolutely no obligation to give any notice. Giving two-weeks notice is just a custom that carries no force in the law. But an employer can say that you left without giving notice.

Employers have no obligation to give employees severance pay.

I really do not know why your employer would want you to postpone you resignation date by 2 weeks. I have difficulties seeing what benefit an employer gains by doing that.

Now, you call the delay in resignation "falsifying." I don't see that it has to be a case of falsifying. There is nothing wrong with your going on unpaid status for a while. If it helps you get a good recommendation for future use, it might be worth the price. It might also enable you to get two weeks of medical benefits without having to pay COBRA rates.

Employers run a risk if they give out bad recommendations just to be nasty. If the information is false, it could be defamation, and, if it is defamation, you could sue your former employer because of the bad references. But note that not all bad references are defamation. It is defamation depending on what is said, and whether what is said is true or false.

posted Oct 1, 2001 2:26 PM [EST]

Answer to unable to find new employment due to possible slander

Is Your Employer Preventing YOur from Getting New Work

At this point, I can't help you, but here are somethings you can do to get to the point where I might be able to help you.

You might be having trouble getting a new job because, when a possible new employer checks your references, the new employer is getting false information from the old employer. If you believe this is happening, first try asking the new employer what the old employer said. Frankly, this usually doesn't work, but you never know what you'll get if you ask.

If that doesn't work, you need to get someone reliable, and who will be available in the future to check your references. You might get a friend or relative to pose as a potential employer, and have that person call your old employer, saying that he or she is checking your reference. There are also commercial services out their that will document a reference check for you. You should be able to find them on the web. Also get a copy of you credit report. You should be able to get this at little or no cost. Credit reports do often list some employment information.

THe object of this activity is to document what the employer is saying about you. If the employer is saying something false about you, you might have a defamation action against that former employer.

posted Oct 1, 2001 2:08 PM [EST]