Answers Posted By David M. Lira

Answer to Non-compete prevents me from returning to old employer

Lack of consideration may make it unenforceable

Employment agreements with non-competition clauses are nearly always written in a one-sided way favoring the employer. Sometimes, employers are trying to protect something which is very real, like trade secrets. But I once saw a non-compete agreement used by a company for all of its school bus drivers. The idea behind that agreement was obviously to lock in non-union employees on a long-term basis -- it was basically a contract of indentured servitude.

Generally, when an employee calls me to ask about a non-competition agreement, I tell them the same thing: You're buying a lawsuit.

Courts in New York State, as a general proposition, don't like non-competition clauses. So, if it gets as far as a lawsuit, you're likely to win, but it may cost you a lot of money to win.

With reference to you, I really cannot tell you what the likelihood is of the non-cempetition agreement being valid or invalid. I need to know about your employer's business and your job. In addition, I would need to see the wording of the agreement to determine things like duration, geographic scope, and product market coverage.

The $10 business might be nothing more that attorney trying to take care of a formality in contract law. The effort probably will not help your employer much with a case against you.

There is some recent caselaw in New York sustaining non-competition clauses in cases where employers made payments to employees, but, in those cases, the employers really paid the money and the amounts involved were about equal to the amount the employee would have received for the duration of the non-compete agreement. Your employer might have a lawyer who, I think incorrectly, believes he can stretch the holding of those cases.

You basically have to make a decision. The non-compete agreement basically locks in to this current employer. You can break out, but you might be taking a risk. I can't tell you how big of a risk because there is a lot about your situation that I don't know about.

If you have a major concern about your situation, I suggest that you invest in the cost of a thorough review by an experienced employment attorney.


posted Feb 19, 2001 2:52 PM [EST]

Answer to What are my rights to keep false statements out of my personnel file?

You have little recourse to keep false statements

The problem with responding to queries like yours is that they often do not contain enough information. For example, my precise answer will depend on whether you are a civil service employee. Even if you are not a civil service employee, my advise to you might be different if you are a union employee.

For the purpose of provide some type of answer to your question, I will assume that you are not a civil service employee and you are a union member. I am assuming that you are working for a private employer and you do not have any kind of employment contract. I am further assuming that your employer does not have any kind of personnel procedure. Even if your employer did have such a procedure, they are generally worthless to employees. In fact, although my view may be a bit extreme, I believe that employers can affirmatively mislead employees in things like employee handbooks and generally get away with it. But there might be (that is, may the law will afford protections to employees, but may be not) exceptions in certain areas, such as with employee benefits.

After all of these assumptions and exceptions, I believe I would still be talking about most employees in New York State. That is, most employees in New York work for private employers, are not members of unions, have no employment contracts, and either have no type of employee handbook or have employee handbooks which will not afford them any real protection.

If you are this type of employee, the short answer to your question is you are out of luck. With respect to your employer, you have no protection against inaccurate or incorrect information in your personnel file. With respect to your supervisor, you have little more protection. In theory, you might go after your supervisor under a defamation theory. But defamation is very difficult to prove. Further, you would be dealing with a privilege in this case. That is, with certain exceptions which are difficult to prove, even if your supervisor communicates incorrect information to your employer, the supervisor's comments will generally be protected from suit because the supervisor has a responsibility to the employer to communicate information about employees. To overcome this privilege, you would have to show malice, which is very difficult to prove because you in efect have to get inside your supervisor's head.

I'm sorry I can't be more helpful.

Sincerely,

David M. Lira


posted Feb 19, 2001 2:48 PM [EST]

Answer to Hurt in non-paid, pre-employment training.

Should be covered by employer

I can understand your frustration, but you should let who I assume is your Workers' Compensation attorney pursue the appeal, and hope for the best.

I am an employment attorney, but employment attorneys usually do not cover everything falling under the area of employment. For example, I do no work in the unemployment compensation area. To be frank, I do only one highly specialized type of Workers' Compensation case (discrimination under section 120), so that I am not familiar with a lot of the "ins & outs" of the Workers' Compensation Law. But it strikes me that you should be covered by the employer's Workers' Compensation policy even though you were in "pre-employment" training and not being paid.

Although it is too late now, I would say that the employer might have been breaking the law (the federal Fair Labor Standards Act and New York State equivalent as contained in the Labor Law) by not paying you for the training. You might have been able to go to the U.S. or N.Y.S. Department of Labor to have gotten paid. However, even if we were to assume that you should have gotten paid, you would have had only two years (three years if there is a wilfull violation) to pursue this remedy, so its too late. Even then, you would have been compensated for the unpaid wages, not your injuries.

I say you might have had a FLSA claim. However, certain types of employees are not covered by FLSA, particularly "domestics." Home Health Aides are often, but not always, considered domestics, so that you may not have been covered. It would have depended on the facts: your arrangement with the agency, how the agency placed you, etc. In any case, if we assumed the facts worked out in your favor, it is still too late.


posted Feb 19, 2001 2:36 PM [EST]

Answer to Can they change my pay or force me to do dangerous work?

You may have an overtime claim.

To answer your questions:

1. Doing warehouse work: Unless the office, the warehouse, or both sets of employees are unionized, you employer probably could require you to do both office work and warehouse work. Now, you said that you were selected to do the work because you are a man. If that is true, and assuming there are no other male office workers, or all male office workers are required to do warehouse work, you might, but I say only might, have a sex discrimination claim. Whether you do will depend on the details of your situation. But please note that I tend to doubt that you have a viable claim. When it come to the insurance, that is something you do not need to worry about. I guess one reason you don't want to work in the warehouse is the risk of injury. If we leave that asside for the moment, the employer has an obligation to see you are properly insured under the Workers' Compensation Law. If you get hurt in the warehouse, you will be covered as if you were a regular warehouse employee. Your employer would then have to deal with its insurance carriers and the Workers' Compensation Board concerning your misclassification.

2. Overtime. An employer has no obligation to give you overtime hours. So, if the employer wants to keep you at 40 hours per week, the employer would be well within its rights to do so.

3. Putting you on straight salary. A lot of employers think that all they have to do to save money on overtime pay is to make hourly employees salaried employees. It isn't that simple. Unless you are in a job which requires a lot of discretion and cannot be easily supervised (an outside salesperson is a good example), you are probably a non-exempt employee under the federal Fair Labor Standards Act and the New York wage and hours law. As a non-exempt employee, the employer must pay you for time over 40 hours per week. The employer cannot escape this requirement by simply making you a salaried employee. You have something here.

As to what to do, you need to keep track of your hours. Get yourself a little pocket calendar, and keep track of your time, including lunch breaks. If your employer is still keeping track of your time, all the better, but keep your own records as well.

You, as well as other employees, like the warehousemen, who are not being paid for overtime, can sue your employer for unpaid overtime, that is, for time in excess of 40 hours per week at 1.5 times your base hourly rate (time and a half). You can also go to the US or NYS Department of Labor to file a wage and hour complaint.

If I can be of help, feel free to call.

Sincerely,


posted Feb 19, 2001 2:35 PM [EST]

Answer to I don't want false and damaging statements in my file.

Defamation difficult to prove

The problem with responding to queries like yours is that they often do not contain enough information. For example, my precise answer will depend on whether you are a civil service employee. Even if you are not a civil service employee, my advise to you might be different if you are a union employee.
For the purpose of provide some type of answer to your question, I will assume that you are not a civil service employee and you are a union member. I am assuming that you are working for a private employer and you do not have any kind of employment contract. I am further assuming that your employer does not have any kind of personnel procedure. Even if your employer did have such a procedure, they are generally worthless to employees. In fact, although my view may be a bit extreme, I believe that employers can affirmatively mislead employees in things like employee handbooks and generally get away with it. But there might be (that is, may the law will afford protections to employees, but may be not) exceptions in certain areas, such as with employee benefits.
After all of these assumptions and exceptions, I believe I would still be talking about most employees in New York State. That is, most employees in New York work for private employers, are not members of unions, have no employment contracts, and either have no type of employee handbook or have employee handbooks which will not afford them any real protection.
If you are this type of employee, the short answer to your question is you are out of luck. With respect to your employer, you have no protection against inaccurate or incorrect information in your personnel file. With respect to your supervisor, you have little more protection. In theory, you might go after your supervisor under a defamation theory. But defamation is very difficult to prove. Further, you would be dealing with a privilege in this case. That is, with certain exceptions which are difficult to prove, even if your supervisor communicates incorrect information to your employer, the supervisor's comments will generally be protected from suit because the supervisor has a responsibility to the employer to communicate information about employees. To overcome this privilege, you would have to show malice, which is very difficult to prove because you in effect have to get inside your supervisor's head.

posted Feb 19, 2001 2:33 PM [EST]

Answer to Training replacement after being laid off

New York is employment at will state

To start, you need to remember that New York is an employment at will state. That means that you can be fired at any time for any reason or no reason at all. Thus, whether your department is being eliminated or not, or whether your job will be remaining in the office or not is simply not relevant. You can be terminated for no reason anyway.
There are all sorts of exceptions to the employment at will doctrine. The biggest two are for civil servants (that is, people who work for NY State or a local governmental entity), and union members (provided your union has a contract with your employer which limits the circumstances under which your employer may fire you, which every union contract I have ever heard of does). Another major exception which covers a much smaller number of people involves people lucky or unlucky enough to have employment contracts which limit terminations.
There are other exceptions, but these exceptions cover not classes of employees but the real reason for termination. For example, you cannot terminate someone because of that person's race, religion, national origin, gender, handicap, or age. The problem with these cases is that you have to find a way of proving that one of the reasons for terminating someone was one of those protected reasons. This is tricky, though not impossible. This exception, of course, deals with discrimination.
Sometimes the discrimination exceptions can cover more people than might originally appear. I'll give you an example from my own experience. I once represented a manager who was a black woman. Her employer wanted to terminate her, and it appeared that the employer wanted to terminate her because she was a black woman. But the employer wanted to cover up this reason because, of course, terminating someone because that person is black or female is illegal. So, the employer decided to terminate the entire department. In this case, not only was the black, female manager entitled to a remedy, but so was every member of the staff of her department, even though there was no evidence that the employer wanted to discriminate against any member of the protected class.

posted Feb 19, 2001 2:30 PM [EST]

Answer to I was denied a temp to perm position

There is not much you can do.

Sorry, there isn't much that you can do.
New York is an employment at will state. That means you can be fired at any time for any reason or no reason at all. This doctrine produces very harsh results. One result, as shown in a lot of cases, is that people who are given offers of employment only to have those offers withdrawn at the last minute usually have no right to any remedy.
There are some exceptions, but they are very tough to prove. Among other things, to meet this exception, you have to be able to demonstrate that you passed up another opportunity because of the withdrawn job offer.
Even if you fell under this exception, this would not immediately get you the job. It will only give you a basis to sue.
So, I would say, just look for another job elsewhere.

posted Feb 19, 2001 2:29 PM [EST]

Answer to Does bankruptcy mean I lose severance?

It depends on assets and priority

Your question is really more of a bankruptcy question than an employment question, and the answer to your question is "It depends."

What it depends on is the company's total assets compared to its total debt. It also depends on what type of priority your claim might be entitled to under the bankruptcy law.

You still might end up getting something, although it might not be 100 percent of what you are owed.

You should have received or be getting a notice of the bankruptcy from the bankruptcy court. The notice will include a form on which you can provide details about your claim. You should complete the form, and file it with the bankruptcy court. If you fail to do so, you would be entitled to nothing.

If you do not get a notice from the bankruptcy court, then you have not been listed as a creditor. If a debtor fails to list a creditor, that creditor's claim will not be discharged under the Chapter 11 plan. As a result, you would be able to at least sue for all of what you are entitled to. You have 6 years to commence a suit to collect. Depending on the amount involved, you could even bring the suit in Small Claims Court.

Sincerely,

David M. Lira
Attorney at Law
595 Stewart Avenue
Suite 510
Garden City, NY 11530
(516) 222-2777
FAX: (516) 222-2971

posted Feb 19, 2001 2:15 PM [EST]

Answer to How can I hold them to a promise to provide training?

Through a suit that is probably impractical to pur

Technically, you probably have a claim. It is a type of claim which rarely succeeds because the plaintiff rarely has the right set of fact, but I believe you just might have it. It is basically an implied contract claim. That the agreement was not in writing would make no difference.

However, I have serious questions whether it would be worth the effort to pursue. Basically, the questions is: What are your damages? I see only the cost of a course or two. There might be a claim that, if the employer had fulfilled its promise to you, your employment value would have been enhanced. However, that is a highly speculative claim, and it seems like something that would be very difficult, if not impossible, to prove.

I hope this answer helps.


posted Feb 11, 2001 6:48 PM [EST]