Answers Posted By David M. Lira

Answer to no follow through on a verbal promise of promotion and pay increase

Promises Promises

I have to note here that I am using the fact pattern presented in your query as the basis for a general discussion that may be of interest not just for you but for others coming to this website looking for general information about their workplace rights.

If you want more definitive information about your options, you need to set up a consultation with a qualified attorney. A thorough analysis of your situation might well require more than simply an initial consultation.

One big problem you have is, of course, you have nothing in writing. Oral agreements are difficult to establish in court.

Another problem is that NY is an employment at will state. This doctrine, often discussed on this website, has many permutations. Another of these permutations is that an employer can change the terms of your employment at any time, for any reason, or no reason at all. Meaning, an employer has every right to change your duties, change your rate of pay, or change anything else about your job, including your job location, at any time for any reason. A court could seize on the employment at will doctrine and say that the employer had the right to change its mind about your promotion.

The one thing I see in your query which works in your favor is that it seems that you relied on the promise of promotion to your detriment, that is, you up and moved, selling your house. There is some influential caselaw in NY which says you are entitled at least to compensation for your trouble. You might not be entitled to the promotion, but you might be entitled to damages to compensate you for the costs you incurred in moving. Although this case law is helpful to you, you should also know that I see a pattern in the caselaw where courts try to minimize the application of this caselaw in order to perserve the employment at law doctrine.

posted Dec 2, 2005 07:42 AM [EST]

Answer to Disablilty

Private Disability Benefits

Employees in New York State are generally entitled to two type of benefits for disability.

One is Workers' Compensation/NYS Disability. Workers' Compensation covers you for on the job injuries. NYS Disability, which is administered by Workers' Compensation, is for off the job injuries.

NYS Disability doesn't pay very much, and only for a limited period of time. But it is better than nothing.

One thing a recently disabled employee should always keep in mind is whether your injury really is job related. Your situation is a good example. A lot of employees might assume that your condition is not job related, and not even bother to ask whether they might be entitled to Workers' Compensation, which certainly pays better than NYS Disability.

So, always explore with your doctor whether a disabling condition might be job related. If your doctor says that it might be, it might well be worth the effort to take further steps to see how strong the evidence is connecting your condition to your job.

The other form of disability available to all employees in New York State is Social Security Disability. It is not strictly insurance, but can be looked at as a kind of insurance to cover you in a situation where you become completely disabled.

Some employees are lucky enough to have private disability insurance provided by or through their employers. Generally, this type of coverage comes in two flavors: Short-term and long-term.

It is generally easy to get short-term benefits, which generally last only six months. Long-term benefits are more difficult to get because the definition of "disability" used for long-term benefits is usually a lot stricter than the definition used for short-term benefits. Most long-term policies will pay benefits if you qualify for Social Security benefits, but always keep in mind that you may still be entitled to long-term benefits even though you don't qualify for Social Security benefits.

When and under what conditions you are entitled to short-term or long-term benefits depends on the wording of the insurance policies governing the benefits. The first step in determining whether you are entitled to these types of benefits is to get the appropriate documentation from your employer or the insurance company providing the benefits.

Under a fedral law governing employee benefits, you are entitled to the documentation. Ask for the "benefit book" for long-term disability. Technically, the document you want is the "summary plan description" or "SPD," which is a condensed version of "the plan and amendments." The SPD will often give you the preliminary answers to your questions. But I often find a need to get copies of the plan iteself to get the definitive answers to questions concerning eligibility.

posted Nov 30, 2005 08:09 AM [EST]

Answer to maternity leave and vacation

Leave Due

Generally speaking, vacation leave is earned leave. As such, it can't be taken away from you if you are terminated. If you have unpaid vacation leave due to you at termination, the employer has to pay it to you. Simply because your employer is a non-profit orgamization makes no difference.

The maternity leave issue is a lot more complicated. It would largely depend on what the written policy says, and on what has been the employer's past practice with repect to maternity leave. It is possible that the maternity leave might be considered to be a "plan" under ERISA, which you provide you with certain rights with respect to maternity leave.

posted Nov 29, 2005 1:46 PM [EST]

Answer to Unfair treatment and termination

She's Allowed to Mess Up

I have to assume that your former employer was a private, non-unionized workplace. As a result, the employment at will doctrine applies. Under that doctrine, the employer is not required to be nice. THe employer can be nasty and unfair. So, to start, this employer seems to have done nothing wrong.

The employer is also allowed to be stupid. So, the fact that employer is allowing thing to happen which would eventually hurt the employer has no bearing.

All of this assumes that there is no illegal discrimination going on. Note that discrimination is not illegal. Only certain forms of discrimination are illegal. It would be illegal to mistreat employees because of the race, religion, gender, national origin, age, disability or sexual preference of the employees, at least in New York State.

The only point you raise which you might have some protection for is breaks. A full-time employee is entitled to a lunch break of at least 1/2 hour. If you work more than a certain number of hour, I believe it is 3 or 4 hours, you are entitled to a break. An employer's failure to provide appropriate breaks is a violation of the New York State Labor Law. You can file a complaint concerning breaks with the New York State Department of Labor.

posted Oct 27, 2005 1:14 PM [EST]

Answer to International Non-compete

Non-Competes Governed by Foreign Law

You present a highly unusual questions. Frankly, I can't be sure of the answer without doing a lot of research, but I will hazard a guess based on my knowledge and experience.

First, I have to make a major assumption. I don't know the law governing non-compete agreements in the Netherlands. I would suspect it is more unfriendly to employment non-competes than New York law, but I don't know that for sure. I will assume, however, that Dutch law will enforce non-compete provisions in employment agreements, no matter how restrictive.

Normally, a New York court will enforce a foreign agreement, and it will enforce it under the law of the applicable jurisdiction. New York law allows parties to a contract to select the law that would apply to the enforcement or interpretation of a contract. Thus, in your case, a New York court would normally enforce your Dutch contract under Dutch law.

However, New York, like most jurisdictions, will refuse to enforce a contract which would be enforceable in another jurisdiction if the enforcement of the contract would violate the public policy of New York.

Here, you luck out a bit. There is case law in New York saying that the enforcement of unnecessarily restrictive non-compete provision in an employment agreement violates New York public policy.

So, there is a chance that a New York court would refuse to enforce the Dutch non-compete. But a more definite determination on this issue would definitely require much more legal research.

It is a very unusual question.

posted Oct 26, 2005 4:11 PM [EST]

Answer to Wrongful termination

Firing of new employee

There is a piece of information missing from your question which might be vital. If you worked at a public hospital, you might have rights under the NYS Civil Service Law limiting the circumstances under which you can be fired. You would certainly be entitled to certain procedural protections.

In addition, most public hospitals are unionized. You would have rights under the COllective Bargaining Agreement.

If you are unionized, even if you worked at a private hospital, you should be talking to your union about your termination.

If you are not unionized, and do not work for a public employer, you wouldn't have anything unless the termination was motivated by certain prohibited reasons, such as discrimination based on race, religion, national origin, etc.

If a prohibit reason isn't involved, you are not entitled to a warning before termination. You can also be fired a reason which is incorrect or even false. You are an employee at will who can be fired at any time for any reason or no reason at all.

posted Oct 26, 2005 3:57 PM [EST]

Answer to Laid off

Being Outsourced

It sound likes your employer is either outsourcing to an outside company in India, or hiring employees to work at a lower wage in India. Either way, you are out of luck. There is no protection in the U.S. or in New York for outsourcing. Under the employment at will doctrine, it is a perfectly legitimate practice.

posted Oct 26, 2005 08:13 AM [EST]

Answer to Legitimate Business Interest?

Legitimate Business Interest

Courts are more likely to enforce a non-compete agreement if the purpose of the agreement is to protect a "legitimate business interest." But that is a pretty vague term. What does it mean?

Exactly what is a legitimate business interest is hard to say. What courts seem to be talking about is protecting a business from a former employee stealing or destroying a relationship, process, device or invention that otherwise would not have existed but for the employer's special, if not unique, talents or that required the employer to make an unusually significant investment to develop.

That may be a little better, but that is still pretty vague. So, I'll try to explain by example.

Say the employer invests millions of dollars to develop a machine which manufactures something at a lower per unit cost than has ever been possible before. A court will not allow an employee to steal the blueprints for that machine so that the employee can start a competing business.

That was a fairly easy example, because a machine like this would be patentable, but a legitimate business interest does not have to go so far as to be patentable or copywrite-able.

For example, there is a reported case out there which involved an industry in which the sale of just a single unit would involve a lot of money (millions of dollars). The was nothing special about the technology being used, so that the unit wasn't something patentable. It was just very expensive to build.

Further, it was hard to figure out who was interested in buying these extremely expensive units. To suuceed in the business, the employer had to spend thousands of dollars just finding a lead, additional thousands to develop the lead into a potential buyer, and additional thousands closing a deal. In this case, the court protected the employer from an employee who took the employer's client list.

However, courts don't usually protect client lists, because, in most instances, client lists are not that difficult to develop. It might required time, effort and money to develop a client list, but that isn't enough. So, the fact that an investment is required isn't enough. The investment needs to be large and the stakes need to be large.

Some things are not legitimate business interests. For example, employers have no legitimate business interest in any particular customer, although employers wish they did. Client lists may be a legitimate business interest, but the business from a particular customer is not. Competition is the public policy of the state, and competition involves customers being able to change vendors. So, courts are going to be very slow to sanction anything which would inhibit competition.

In my experience, business people will often talk a good game about the virtues of the competitive market place, but one thing they hate being involved in is competition for customers, as well as other things, such as employees. Non-compete agreements are a nod to the competitive marketplace. If it were not for competition, employers would have no need for non-compete agreements. However, non-compete agreements are also an attempt by some employers to distance themselves from competition. Non-compete agreements are an attempt to reduce competition for customers, employees or both.

Simply because an employer does something in a different way does not mean the employer has a trade secret. I have an unusual way of organizing and storing information in my law practice, but those methods would not be considered a trade secret. Not all claims of "trade scret" raises a legitimate business interest.

Further, simply because an employer, for example, teaches you "the business" does not mean that an employer can bind you to him for the rest of your working life. So, that is not a legitimate business interest either.

Employers have come up with increasingly elaborate non-compete agreements which get you to "acknowledge" all kinds of things. In doing this, the employer is trying to "estop" you. That means, the employer wants to be able to argue that you said one thing at one point. You should not be allowed to say something different later.

Although this attempt to estop employees sometimes works, I don't think that employers have a particularly good track record in using estoppel.

The reason for the poor track record may be that courts do not want to be encouraging lying by employers in the way they draft their non-compete agreements.

For example, a non-compete agreement may say that the employer will be disclosing all kinds of trade secrets to a new employee. That statement is an attempt to justifiy the agreement. But if there really are no trade secrets, the court would be only sanctioning a lie by enforcing the non-compete agreement. A court would not want to do that.

posted Sep 29, 2005 1:10 PM [EST]

Answer to can we sue for defamation? we may have proof

Suing an Employer for Defamation

It is possible to sue an employer for defamation, but you need to understand that defamation claims are very difficult to succeed on.

Generally, you have a better chance at successfully suing an employer for defamation when the defamatory statement is made to someone outside of the employer's workplace, such as when a prospective employer contacts a former employer for a reference.

The allegedly defamatory statement should to be fact based, as opposed to opinion. Generally, opinion cannot be the basis of a defamation claim.

The statement also needs to be false. Truth is an absolute defense to defamation.

Thus, a statement such as "On average, she was absent one in ten workdays while working for us" is more likely to result in a finding of defamation, if we assume the statement is false, than a statement such as "Her attendence record wasn't very good."

In New York State, you need the exact words to even begin a defamation case. To win the case, you need someone who heard the words to testify at trial. Of course, if the defamation is in writing, the writing largely substitutes for the testimony.

posted Sep 22, 2005 09:58 AM [EST]

Answer to harasssment abuse

OSHA Retaliation

I really know very little about OSHA because remedies under OSHA are enforced by the agency, with very little opportunity for employees or their attorneys to participate. But my bet is that there is an anti-retaliation provision in OSHA that would probably apply to the temp agency as well as the employer who was cited with all the violations. Contact OSHA.

Further, if you are ill as a result of working at that place, you could file for workers' compensation benefits.

posted Sep 20, 2005 07:34 AM [EST]