Answers Posted By David M. Lira

Answer to Minimum employment tenure & medical insurance contribution

Forced to Work

Some time ago, in fact more than 100 years ago, the Constitution of the United States was amended to make involuntary servitude illegal in this country. Although I know that in some quarters the Constitution is considered quaint and outdated, to me and many others, it is still the primary law of the land. So, no one can be forced to work for anyone.

However, if you have signed an employment agreement for a definite term, you could be subjected to a claim for damages for leaving a job before the end of the term. Damages would be the difference between what you would have been paid, and what the employer had to pay your replacement, plus incidental costs, including the costs of recruiting a replacement.

posted Aug 22, 2006 09:20 AM [EST]

Answer to terminated for ending an affair with boss

Breaking up with the Boss

There is this interesting case that went through New York State courts. It involved a Penthouse playmate. The boss would have her do favors for particularly important business associates. For the longest time, she had no problems doing these favors, but at some point, she changed her mind. The boss didn't like this, and started to give her a hard time in lots of ways. What he started to do definitely started to hurt her in the pocketbook. She sued claiming sexual harassment. Believe it or not, the courts didn't have a hard time accepting her claim.

Although technically out of favor now, at one time there were said to be two types of sexual harassment claims. One is hostile environment. THe other was called quid pro quo, which essentially means something for something. The case involving the playmate was a quid pro quo case. That is, the boss granted favors to his playmates if they granted sex to, in that case, business associates. It could have just as well been the boss himself (or herself).

Now, your fact pattern raises another important issue: constructive discharge. Very often in discrimination cases, something happens, and the job enivironment becomes very difficult, so difficult that the employee feels she has to leave. If the situation is bad enough, a court may consider the situation to be the same as firing the employee, and will treat it the same.

However, constructive discharge is very hard to prove. It involves a very high level of proof.

Now, a situation may not rise to the level of constructive discharge. That does not mean that an employee does not have a claim. It only means that the employee may not be able to get compensated for loss stemming from leaving the job. The employee may still be able to get compensated for what led to the employee leaving the job.

Economics play an important part in deciding whether an employee should take a case into litigation. Although there are certainly exceptions, generally speaking, a termination case is economically more valuable than a harassment case.

posted Aug 22, 2006 09:00 AM [EST]

Answer to Do I need to give 2weeks notice? if I did not signe anything.

The Employment at Wil Doctrine Working for the Employee

Your situation presents an instance where the employment at will doctrine works for the employee. Under this doctrine, an employee is free to leave an employer at any time for any reason, or no reason at all. No advanced notice is needed.

Let's assume for the moment that you did sign a contract requiring you to provide your employer 6 weeks notice before leaving. Well, in the U.S., we have a law against involuntary servitude. It's the 13th Amendment to the U.S. Constitution. You can't be forced to work for anyone.

If you had signed a contract requiring 6 weeks of notice, the most that the employer could do is sue you, under the contract, for the extra costs the employer incurred in replacing you during the period of notice you did not provide. Note, that all we are talking about is the extra costs in replacing you. If your replacement costs as much as you, the employer would have no claim against you.

There is a final twist in all this. Anyone in the U.S. can be sued at any time for any reason. The key in the U.S. is not whether you can be sued, but whether you can win your lawsuit. So, I can't say that your employer would not run into court to try to get an order to force you to stay. I can say that the employer would probably not succeed in the long term, though I cannot rule out the employer succeeding in the short term.

posted Aug 8, 2006 11:57 AM [EST]

Answer to Termination during disability leave.

Fired while on maternity leave

A situation like this would be covered by the Family and Medical Leave Act. FMLA provides for 12 weeks of leave, which isn't necessarily paid leave, under certain conditions, including the birth of a child. One of the guarantees you do get while on FMLA leave is that you cannot be terminated from your job because you are on leave.

But there are always exceptions. For example, you can be fired from your job while on FMLA leave if you would have been fired anyway. Let's say that at about the time your company was going through a big lay off. Management decides to eliminate your entire department, including your job. In a situation like this, your termination would be proper.

So, the general rule is that while you are on FMLA leave, you can't be fired, but there are exceptions.

posted Jul 17, 2006 08:34 AM [EST]

Answer to Non-Compete Agreement without a Signature

A Non-Compete Agreement without the Employee's Signature

In a way, employers don't need non-compete agreements, if all the employer wants to do is protect legitimate business interests. The one area that I can think of where a non-compete agreement might actually afford employers additional protection not otherwise available is with professionals, such as medical doctors and accountants, even lawyers.

A legitimate business interest is something like proprietary information. An employee is simply not allowed to steal proprietary information, especially to give or sell it to competitors, or to use it in setting up a competing business. The employer does not need a non-compete agreement to protect its proprietary information.

Employers seem to be increasingly using non-compete agreements, often for at best questionable purposes. Non-competes may serve to lock in employees with the risk of litigation. Non-competes, in other words, are creating a new type of feudal system in which employers hope to hold employees captive, and to protect themselves from competitive market forces.

But as I said, sometimes, employers have a legitimate reason for having certain employees sign non-compete agreements. And, sometimes, an employer needs a non-compete agreement inorder to protect interests that might not otherwise be protected.

But, the employers would get the benefit of a non-compete agreement only if the employers can show that the employee voluntarily entered into the agreement.

The key question is whether the employee agreed to be bound by the terms of the agreement. That agreement to be bound might be proven in a number of ways, but, by far, the easiest and mostly widely accepted means of demonstrating agreement to be bound to the terms of an contract is to simply get the person to sign the contract.

So, one way to show that an employee entered into a non-compte agreement (not necessarily voluntarily) is having the employee's signature on the agreement.

Now, in my practice, I have seen instances where the employee has failed to sign the non-compete agreement. That will not always stop an employer.

I have seen instances where a supervisor signs for the employee. The problem with this is for the employer is that, because the employee has not signed the agreement, there can be no assumption that the employee agreed to be bound by the terms of the non-compete. If the employer has no other way of showing the employee agreed to be bound, the employer would not be entitled to the protection that the non-compete might have otherwise provided.

But now we have to deal with a basic truth of the system of justice in the United States. The fact is anyone can sue anyone else at any time for any reason. So, an employer can sue an employee even on a non-compete agreement that the employee did not sign. The employer in all likelihood would lose this lawsuit, but it could nonetheless still bring the lawsuit.

After the employee wins a lawsuit based on an agreement the employee never signed, the employee might, but might not, be able to get sanctions imposed against the employer for bringing a frivolous case. Just note that court are very reluctant to impose sanctions. Nonetheless, an employer is taking a big risk suing on a non-compete the employee denies ever signing.

posted Jun 9, 2006 1:32 PM [EST]

Answer to Verbal & Physical Abuse On Job Site

Assaulted on the Job

If you get hurt on the job because of the mechanics, you would be entitled to Workers' Compensation benefits. If the work environment chronically poses a threat to the physical safety of employee, maybe the employees might have certain rights to protection under OSHA. Beyond that, you have few rights, unless . . . .

The fact of the matter is that in New York State non-unionized employees have very few rights. A non-unionized worker certainly DOES NOT have a right to a workplace that is free of abuse. It doesn't matter whether the abuse comes from co-workers or management.

Unionized employees have greater rights, but only because of the collective bargaining agreement. I believe most CBAs would make the situation you describe a grievable situation, although unions sometimes have trouble acting when the offending employee is also a member of the union.

The only onther way I can think of perhaps dealing with the situation is if the situation falls under the anti-discrimination laws. This, of course, starts getting into the motivation for the offending employee's behavior. That is, why is this employee acting this way? If the answer is something like race, national origin, gender, religion, age, handicap or sexual preference, then there might be a way of addressing the situation.

posted Jan 16, 2006 10:39 AM [EST]

Answer to victim of accident at the work place

Injured on the Job

If you were injured in an on-the-job accident, you may got to the nearest Workers' Compensation office and file a claim. Although I do not do Workers' Compensation cases, there are many attorneys who do these types of cases. However, many employees handle their claims without an attorney.

posted Jan 3, 2006 10:00 AM [EST]

Answer to Are pending criminal charges basis for not hiring?

Involvement with the Criminal Justice System

In New York State, an employer is generally free to discriminate against a current or potential employee on the basis involvement with the criminal justice system, whether it is just an arrest or pending charges.

There is a statute in New York State which prohibits discrimination on the basis of criminal conviction. However, this law is read so narrowly by the courts that it has very little application.

posted Jan 3, 2006 09:56 AM [EST]

Answer to Not getting payed overtime and threatend by manager not to contact state

Laws Protecting Wages and Hours

Under federal (the Fair Labor Standards Act) and New York State law, you are entitled to compensation for all hours worked, provided that you don't fall into an exemption.

There are a lot of exemptions, but the biggest ones are for executive, administrative and professional employees. Managers are often, but not always considered executive employees.

Even if an employee would otherwise be considered an exempt employee, that employee might be entitled to overtime if the employer treats the employee like an hourly employee, doing things like docking employees for increments of less than one day.

Most employment related laws contain a retaliation provision. That is, if you take steps to enforce your rights the employer is prohibited from taking an adverse action against you. FLSA's anti-relatiation provision is limited. It won't protect you for complaining to management. It will protect you if you go to the U.S. or NYS Department of Labor, or if you file suit in court to collect for unpaid hours, including overtime.

Very often, when an employer fails to pay overtime, the employer fails to keep time records. It is the very rare employee who will keep track of their own time. So, you see there is always a problem with calculating unpaid wages.

The law has solved that by allowing employees, at least in court, to estimate their unpaid time. The theory is that the employer is required to maintain necessary time records. If the employer kept the records it was supposed to keep, it would be able to come up with a better estimate of hours worked and paid.

In a lawsuit, an employee would be able to get copies of the time records that exist through a process known as discovery.

posted Jan 3, 2006 09:40 AM [EST]

Answer to Promised Benefits

Pay for Holidays

Because of New York's employment at will doctrine, an employer would probably be able to promise you something at the beginning of the year and be able to withdraw the promise sometime during the year. Unless you have already earned what the employer had promised, the employer would probably be able to withdraw the policy without liability.

If you work on a holiday, you are entitled to pay for the day. You would not be entitled to extra or premium pay, but you certainly would be entitled to payment for time worked.

posted Dec 21, 2005 09:39 AM [EST]