Answers Posted By David M. Lira

Answer to Non-Compete

Non-COmpetes and Starting Your Own Business

The short answer is that I don't know whether your former employer has a case. It depends on the industry you work in, the type of work you performed for your former employer, especially compared to the type of work you now do, and the wording on the employment agreement.

I can tell you this. These agreements seem to be increasingly common in the IT area, but I have not really noticed a lot of litigation in the area. A lot of times, the employer seems to be over-reaching.

I can also tell you that courts in NYS have a special dislike for non-compete provisions, because they have a tendency to make people unemployable. Unless you former employer essentially paid you a day's pay for each day the non-compete takes you out of the market, chances are that you would win a lawsuit based on a non-compete.

But, as I usually tell people who have me review non-competes before they sign it, if you sign a non-compete, you are in all likelihood buying a lawsuit. You'll probably win the lawsuit, but it will cost you the money spent on hiring an attorney to defend you.

If you are in an industry where these have become popular, the only way to make them go away is to be willing to fight them.

Non-competes seem to get very popular among employers when a particular job becomes hard to fill, and there seems to be a lot of movement by potential employees among competing employers.

posted Oct 1, 2001 1:53 PM [EST]

Answer to cant returned to work

Losing Your Job Because of an Arrest

There is a provision in NY State Law which limits discrimination on the basis of criminal conviction, but it addresses only those who have been convicted of a crime. In any case, there are so many holes in this provision that it is the very rare case when someone can successfully sue under it.

There is another provision in NY State law which says you cannot be discriminated against based on non-work related activities. But it applies only to leisure activities. A crime or an arrest cannot be said to be a liesure activity. This is another example of a law which is so narrowly read that it really grants only a very minimal degree of protection. I basically think it does nothing.

These are the only two laws that I can think of that might have protected you, but neither of which seems to apply to you. As a result, you fall into the employment at will doctrine. What the employment at will doctrine says is that you can be fired at any time for any reason, or no reason at all.

posted Sep 24, 2001 11:17 AM [EST]

Answer to Is minor offense a ground to fire an employee?

Discrimination on basis of criminal conviction

I'm sorry, but I really cannot answer your question based on the information provided. If your friend likes, he or she can call me, and I'd be glad to discuss the specifics of his or her situation.

However, I can provide some very general information. New York State's Human Rights Law and Correction Law prohibit employers with 10 or more employees from discriminating on the basis of criminal conviction. But these laws have some fairly big loopholes that make their actual application fairly limited.

Again, generally, an employer can discriminate on the basis of a criminal conviction (and a plea to a fairly minor offense can amount to a criminal conviction)if the nature of the conviction is such that it poses a risk to the employer's business in employing that person. Let me illustrate how this might work. Suppose someone has been convicted of a theft crime. That person now is trying to get a job as a cashier. In a factual situation like this, the employer is probably entitled to fire that employee, or refuse to hire that person to begin with, because of the criminal conviction alone.

Another interesting question is how did the employer learn of the plea. If the employer got the information from a credit report (remarkably, credit reports will contain information like that), the employer may have some liability to your friend if your friend did not give the employer an authorization for the credit report.

Credit reports will tell you who got copies of the report. I suggest that your friend ask for a copy of his credit report to see if the employer got a copy of it, and to see if the credit report contains any information about the plea.

posted Sep 12, 2001 1:27 PM [EST]

Answer to info.of lawyers

How to Become a Lawyer

In the United States, most people become lawyers by first obtaining an undergraduate college degree. After college, you then go to law school (3 years during the day, or 4 years at night). After obtaining a law degree, nearly always a Juris Doctorate, you take the licensing examination in your state. The exam generally consists of two part over two days, the multi-state (really a nationally administered part) and a local part. If you pass the examination, there is a screening process to determine your character and fitness to be an attorney. If that screening process doesn't raise any problems, you're sworn in as an attorney.

posted Sep 10, 2001 09:35 AM [EST]

Answer to Termination letter vs Employment contract

Discontinued Agreement

Your immigration status probably has no effect on this situation.

New York courts dislike non-compete clauses, precisely because they inhibit the ability of people to earn a living. However, I generalyy advise against entering into agreements with them. My feeling is that, although you will likely win a lawsuit based on a non-compete clause, by signing an agreement with one in it, you are basically buying a lawsuit.

Lately, I have received calls and correspondence that fairly strongly suggests to me that employers in the high tech area do their most to inhibit their employees from taking jobs elsewhere. Although I have yet to see many lawsuits by employers in high tech seeking to enforce non-compete clauses, non-compete clauses seem very common in high tech industries.

Did the non-compete clause "discontine" when your employer discontinued you? I don't know. It depends on what else you agreement provided for. It depends on the breath and duration of the non-compete clause. It depends on the work you did for the employer. It depends on what the agreement says about termination. I doubt that the non-compete discontinued, but, as I have indicated, there is a good likelihood, though not a certainty, that the non-compete clause is not enforceable.

I suggest that you call me to have the agreement reviewed.

posted Sep 10, 2001 09:10 AM [EST]

Answer to Re-employement disability law?

Rights to Re-Employment

When Citibank had this supervisor go to sensitivity classes, but, apparently, did not give you back you supervisory position, you might have had a claim against Citibank. However, you have probably lost that claim with the passage of time. In NY State that are 3 statutes of limitations governing claims for discrimination, including discrimination based on handicap, 240/300 days under federal law (Title VII or ADA), 1 year for a claim filed with the State Division of Human Rights under the Human Rights Law, and 3 years for a claim filed in court (usually State Court, but possibly Federal Court, depending on the employer). You are probably too late by 2 years.

There is no law that would give you any special rights to re-employment because you have a hearing impairment. The Americans with Disabilities Act (a federal law) and the Human Rights Law (a New York law) are designed to protect you from discrimination based on disability, so that an employer is not suppose to reject you because of a hearing impairment. However, laws preventing discrimination do not confer any special rights of employment or re-employment.

What you may have heard of are special provisions covering employees working for state and local government agencies. Under the New York Civil Service Law, employees who have become unable to work due to disability have certain re-employment rights after they become able to work again. These provisions, one covering work-related disabilities, and another covering non-work related disabilities, DO NOT COVER private employers. So, Citibank would have no obligations under these provisions of law.

posted Sep 7, 2001 09:07 AM [EST]

Answer to Bench policies for consulting companies

When the Employer Says One Thing and Does Another

You last sentence kind of suggests that employers in NY have to include at will language in employment contracts. They do not. A NY employer may enter into a contract for a definite term or which restricts the conditions under which an employee may be terminated. Provisions like these pull the employment relationship out of the at-will catagory. If an employer hires an employee, and if nothing else is said, the relationship, which is inherently contractual, even if there is no written contract, is assumed (a judge would say, presumed) to be at-will.

Your situation is interesting, but I believe, if you were to sue your employer, you would likely lose.

On the one hand, your case is something like a famous NY Court of Appeals case. In this case, the court found that the employment relationship was not at-will because the employer made certain representations to the employee before hiring, and the employee relied on the representations, going through the time and expense of relocating. However, one big difference between your situation and this famous case is that the employee in that case was fired almost as soon as he was hired, so that I believe a court would say the case does not apply to your situation.

You weren't with your employer long, so that some attorneys might disagree with me and say your situation is sufficiently close to this famous case. The only way to prove who is right is to file a lawsuit.

I have seen more than a few cases say that, after an employee is hired, an employer can modify policies, without any advanced warning or discussion with employees. If the employees do not like the policy, their remedy is to quit. In other words, I believe a court would say in your case, unless you have a written agreement providing otherwise, that the employer could change the bench policy, and fire you dispite the representations made to you at the time of hire.

Only yesterday I read a case in which an employee handbook said one thing in one place, but in another place said that the employment relationship was at will. Because of the at-will statement, the court refused to enforce the other handbook provision against the employer. In other words, in NY State, an employer can get away with lying to employees, as long as the employers recite the magic words of at-will employment somewhere, such as in a handbook, application or agreement.

I find this aspect of the employment at will doctrine very disturbing. However, I can also say that the effects of the employment at will doctrine are soften to at least some extent by other developments in employment law.

posted Sep 7, 2001 08:50 AM [EST]

Answer to Counter offer reneged on

Oral Contracts

In most cases, employment agreements do not have to be in writing. But, as Yogi Berra once said, "An oral contract isn't worth the paper it's written on." In translation, that means it is very hard to prove an oral agreement to the satisfaction of a court.

Do you have recourse? Yes. You could sue for those aspects of the oral agreement that the employer is not fulfilling. The real question, however, is whether you are likely to win in a lawsuit based on the oral agreement. Because oral contracts are hard to prove, your chances of winning in a suit based on an oral contract are, at best, 50 percent. So, do you have a viable means of recourse? I'm not so sure.

posted Sep 5, 2001 11:40 AM [EST]

Answer to FMLA Certification incomplete

Is the Employer Being Reasonable?

The Family Medical Leave Act gives employers the ability to ask employees for proof, by means of medical certifications, concerning the medical conditions for which the employees are seeking leave. However, the ability to ask for medical certification does not give the employer the right to be hyper-technical about to contents of the certification.

From your query, I cannot tell whether we are dealing with a hyper-technical employer or a sloppy doctor. The only way to tell is to have an attorney do a more complete review of the case.

posted Sep 5, 2001 11:06 AM [EST]

Answer to how do you fight a union that says nothing to grieve?

Duty of Fair Representation

Because you work for a retail grocery, I assume you work in the private sector. THis is important because it related to the statute of limitations on duty of fair representation claims. In the private sector, the statute of limitations is short -- I don't recall exactly what it is, either 4 or 6 months. If you were a public sector employee (other than federal service), the statute of limitations would be six years.

Now, a union has a duty to represent you fairly, and, if the union fails in that duty, you can sue the union. But, the union has a lot of discretion in deciding what battles it will fight for its members. Generally, to win a duty of fair representation case, you have to show that the union was arbitrary and capricious in refusing to handle your grievance. That is a very tough standard of proof. In that your salary was not reduced, you might have a very hard time of succeeding on a claim against the union. Further, even if you could prove the union was wrong in not pursuing your grievance, you might not have any damages. In other words, if we assume you could win you suit, you might end up with nothing. So, a claim against the union might be worth your time or effort.

If there is something more to this whole situation, it might be worthwhile calling me to discuss it.

posted Aug 29, 2001 3:32 PM [EST]