Answers Posted By David M. Lira

Answer to Are agreements not to re-hire lawful?

Agreements not to re-hire in settlements and sever

The clause you identified in your e-mail is a very common clause in agreements settling employment related claims. I don't recall ever seeing this clause in a severance agreement. In the severance context, I have a harder time seeing why an employer would want it.

Is it legal? In one sense, I don't know because I don't recall ever seeing a case challenging this type of clause. However, my sense is that a court would probably find the clause you quoted in your e-mail to be legal. Why? Because it is fairly narrowly written. It applies only to applications for employment, and, at that, only one employer (and related entities).

Concerning your hypothetical of your current employer acquiring your former employer, to a question of "could," the answer necessarily always, ALWAYS, has to be yes. But that is not the relevant question. The question is whether the clause would be a successful defense to a suit brought by you on such a termination. Again, I really don't know because I have never seen a case like that, but I doubt it, again, because the clause applies to applications for employment to the former employer. In the case of an acquisition by your current employer, you have not applied for employment to the former employer. You are already a current employee of the current employer.

However, this good news has to be tempered by New York's employment at will doctrine. Unless you fall under an exception, and there are numerous exceptions, an employment contract or union membership being just two, the general rule is that you can be fired at any time for any reason or no reason at all. Thus, a current employer would not even have to use the contract with the old employer to fire you.

I hope this helps.

Sincerely,

David M. Lira


posted Feb 21, 2001 12:53 PM [EST]

Answer to Is a non-compete valid if the employer breaches the agreement?

Expect a lawsuit if you breach your non-compete.

A major mistake for an attorney to make is to interprete a contract without seeing the contract. However, with that caveat, it would seem that you at least have a good argument for voiding the contract based on the employer's breach.

New York State courts are generally hostile to non-compete clauses, but your type of position is the very type of position that would cause a court to enforce the non-compete clause. So, you should be very careful about bolting without knowing exactly what you are getting into. As I have told many client, when you sign a contract with a non-compete clause, you are essentially buying a lawsuit. Your type of technical expertise would seem to be the type of thing that would almost guarantee a lawsuit if you suddenly left and joined a competitor.

I hope this helps.

Sincerely,

David M. Lira


posted Feb 21, 2001 12:48 PM [EST]

Answer to Rape and retaliation for reporting it in the Army - Please help.

Help for a rape and retaliation victim in the Army

I've done a lot of work with sexual harassment. However, I don't think I can help you much for two reasons.

First, if I understand your note correctly, you are a member of the military. If you were a civilian employee of the Army, I could probably help, if it weren't for the second reason, but, once you're talking about military personnel, you're generally talking about a different set of rules. I am completely unfamiliar with military law. I cannot say to what degree, if any, my knowledge of sexual harassment law and practice would even apply.

Second, you're a long way from Garden City, Long Island. If we assume that my knowledge of sexual harassment cases would help, and it probably would help at least to some degree, I can tell you that developing the case involves a lot of work on my part and your part. My experience tells me that the best way to do this work is face to face. I have tried working with someone (a civilian employee at a U.S. Military facility in Germany) by e-mail and telephone, and found it very difficult. I would prefer that you try to find someone local first.

I can't help you with a military lawyer. You might want to try the NYS Bar Association Lawyer Referral Service. It should be listed in a local telephone book. As for employment lawyers, I can refer you to a member of the National Employment Lawyers Association, Mairead Connor, of Syracuse, (315) 422-6225. She is the closest attorney that I can find for you to Watertown.

Sincerely,

David M. Lira


posted Feb 21, 2001 12:41 PM [EST]

Answer to Can I start a company as I am on H1?

Visa, social security and starting a new business.

Dear Ananth:

I don't know what "H1" is, but I know of nothing which prevents anyone in the U.S. from starting a business or setting up a corporation, nothing except perhaps having enough capital.

If H1 signifies your receiving Social Security Disability benefits, than acquiring an additional source of income, from employment or a business, may eventually affect your entitlement to benefits. However, I also know that there is a program under Social Security which is designed to encourage people get employment without immediately losing their social security benefits. I don't know if it applies to starting a business. Even if it doesn't, I can see how you could easily get around that problem by setting up a corporation and hiring yourself as an employee.

If you are really asking about the continuance of social security benefits, I would suggest that you contact the Social Security Administration.

Sincerely,

David M. Lira


posted Feb 21, 2001 12:36 PM [EST]

Answer to Can they deny benefits to "freelance" employees?

Casual employees may be able to participate in ben

Your question enters ground which has, so far, only rarely been tread on.

There is only one law that might help you, and I believed it is the same law which recently helped a fairly large number of "casual" employees working for Microsoft. The law is ERISA, the Employee Retirement Income Security Act. Although vacation and holiday pay probably would not be covered under ERISA, health benefit plans more than likely would be.

One key provision is that employees in similar jobs, doing similar work as employees receiving benefits under an ERISA covered plan cannot be discriminated against. You may be called a "freelance" employee, but if your job is more or less the same as other employees receiving health benefits, you might be covered by this ERISA anti-discrimination provision.

If you want to explore this some more, call me to set up an appointment.

Sincerely,

David M. Lira


posted Feb 19, 2001 4:12 PM [EST]

Answer to Are residency requirements legal for a non-competitive job?

Municipal residency requirements are legal but wai

My office is just outside New York City, and this has been an issue for years.

The short answer to your question is YES.

Often, municipal employers grant waivers for various reasons. You might want to ask about that. Waivers are granted because of, for example, unique, difficult to fill skills, or for hardship.

Incidentally, municipal employers which have adopted residency requirements, in the long run, seem to become very lax about enforcing the rule, and seem to almost routinely grant waivers. That is probably because, by restricting their pool of candidates to residents, and restricting where their employees may live, municipal employers find it increasingly difficult to attract and keep qualified candidates for employment.

I hope this helps.

Sincerely,

David M. Lira


posted Feb 19, 2001 4:06 PM [EST]

Answer to Compensation for 24 hour coverage?

You may be entitled to pay for stand by time.

I don't know what you mean by 24 hour coverage. I will assume that your employer requires you to be on stand-by on a periodic basis, and these stand-by periods last for 24 hours.

Now, I know nothing about your employer, your employer's business or your position with your employer. Again, I have to make an assumption that both you and your employer are covered by the applicable law. I would say that most working people are covered by the applicable law. Assuming you are covered, then the answer to your question is that you are entitled to compensation for stand-by duty.

Contact an attorney, or the federal or New York State Department of Labor for further assistance.

Because an employer violating one provision of the wage and hour laws tends to violate many provisions of the wage and hour laws, also ask yourself the question of whether you are being paid overtime for work beyond 40 hours per week.

I hope this helps.

Sincerely,

David M. Lira


posted Feb 19, 2001 4:03 PM [EST]

Answer to What union rights do I have as a "casual" employee?

The union should protect you -- ask for help.

Frankly, I'm surprised that the union is allowing "casual" employees to stay around as long as you apparently have.

I, of course, don't have all the details. So, I cannot give you a definite answer to your question, but my estimation would be that you have no rights or recourse against either your employer or the union at this time.

However, I would suggest that you ask to speak to a union official. Tell them about your situation. It sounds as if you are doing exactly the same type of work as a union employee without getting the union benefits. Call the union's attention to the fact that casual employees undermine the ability of the union to bargain for its members. You should also tell them that you want to become a union member. (I hope that is the case.)

Now, if you get into bad enough trouble with your employer because you contacted the union, I would ask the union for help. Even if they won't help because you are not a member, I would go the the National Labor Relations Board to file a complaint, against the employer. By going to the union, you are engaging in collective action. By engaging in collective action, you become entitled to some of the protections afforded union members under the National Labor Relations Act, even though you are not a union member.

I hope this helps.

Sincerely,


David M. Lira


posted Feb 19, 2001 3:58 PM [EST]

Answer to Can they reduce salaries as well as lay off employees?

Pay cuts and lay offs are legal

The short answer is that the pay cut and temporary lay-off are all legal.

Believe it or not, when you are employed, you and your employer have a contract. The contract may be entirely oral, but it is nonetheless a contract. Unless you and your employer decide to make the contract a contract of definite duration (6 months, 1 year, 5 years, whatever) both you and the employer can change the terms of the employment contract at any time. Because the terms of employment can be changed at any time, at least that is the case in New York State, you are said to be employed at will.

Simply because one side changes the terms of the agreement, the other side does not have to accept it. Thus, if you tell your employer you want more money, the employer does not have to agree. Same with you. If the employer decides to reduce your pay, you don't have to accept it, but, in that case, your choice is to leave. There is no way you can insist that the employer maintain your pay. You can leave at anytime, without even giving notice. But remember, simply because you are legally entitled to leave whenever you want, that does not mean the employer has to like it. You give an employer notice not because you are obligated to do so, but because you want to keep the employer's good will.

Although there is no way for me to tell for sure, I assume that you are a non-union shop. Just for your information, even though you are non-union, you and your fellow employees are entitled to take collective action. In other words, to an extent, employees addressing an employment related concern together have certain protections from termination, etc., on the basis of the collective action, just like union members, even though not actually union members.

I am sorry I can't be of more help.

David M. Lira


posted Feb 19, 2001 3:51 PM [EST]

Answer to What can I do to protect my commissions once I resign?

NY law and careful accounting protect your commiss

There is a special New York State law which specifically protects your earned commissions. That is, the law says you are entitled to your commissions even though you are no longer with the firm at the time the commissions become due and payable.

However, your question seems to have less to do with the law, and more to do with accounting. That is, for your own protection, you should document, as best you can, each commission you might become entitled to. I'm not saying that you have to, or are entitled to copies of purchase orders, invoices, packing lists, etc., although if you could obtain that level of documentation that would be great. I am saying that you should be keeping a notebook or ledger recording enough information about each transaction that, if push comes to shove, you can ask for very specific information from your former employer in subsequent litigation.

I don't know what industry you are in, the type of products you sell, or how your commission is calculated, but, at minimum, you should be recording for yourself the date of transaction, customer name, the customer contact who ordered the merchandize, and the total value of the transaction. You should also be clear about how your commissions are calculated, when they are calculated, and be able to at least identify personnel manuals, sales manuals, or other documentation that explains how commissions are calculated. Again, if you have something in writing which explains how commissions are calculated, that's great, but even if you don't have this type of documentation, you should know how your commissions are calculated.

I hope you find this helpful.

Sincerely,

David M. Lira


posted Feb 19, 2001 3:21 PM [EST]