Answers Posted By David M. Lira

Answer to Work Schedule

Seniority in the Workplace

The concept of seniority is according a high level of importance in employment law. For example, if there is a conflict between a bona fide seniority system and an agreement to settle a discrimination claim, in all likelihood, the seniority system will take precedence.

At least in the private sector, most seniority systems are the result of collective bargaining. That is, a union and an employer agree to set up a seniority system. If there is no union, there is usually no seniority system.

Even if an employer sets up a seniority system without a union being involved, you need to remember that employee manuals aren't worth the paper they are printed on. Seniority systems set up by employers in employee manuals probably aren't binding on the theory, under the employment at will doctrine, can always change the policy unilaterally.

There is, otherwise, nothing in the law requiring an employer to use seniority as the basis for setting up work schedules, or making any other decisions in the workplace.

In a lot of ways, an employer is well advised to use seniority as a basis for decision-making because it is usually, but not always, a nice, easy, objective and non-discriminatory way to make decisions. In other words, a seniority system may help an employer avoid bad feelings and workplace conflicts because of employee preceptions that the employer is making arbitrary or discriminatory decisions.

So, there are advantages to a seniority system, but there are also disadvantages, the primary one being it's inflexibility. A seniority system may also prevent an employer from placing its best people in slots where they would be most effective.

posted Sep 14, 2005 08:51 AM [EST]

Answer to Being run out of my job for discrimination AND am filed as "exempt" and don't think I should be

It's Your Job, Not Your Title

The general rule under the Fair Labor Standards Act is that an employee is entitled to time-and-one-half for yhours exceeding 40 hours in a workweek. However, there are a number of exemptions, the most important of which are for executive, administrative and professional employees.

These three terms have a very specific meeting, and employees who might otherwise fall into an exemption might nonetheless be entitled to overtime if the employer does not comply with a number of requirements.

You fall into an exempt category depending on the work you actually perform. An employer might call you "chief executive officer," but, if your job is to sell Italian ices at a counter, you are going to be considered entitled to overtime as a non-exempt employee.

The determination of whether you are exempt or non-exempt is fact specific. Although you fact situation needs to be looked at more carefully, it looks as if you are a non-exempt employee entitled to overtime.

Private employers cannot substitute comp time for overtime. Only government employers may do that.

I would suggest that you contact me or another employment attorney to discuss the details of your situation privately.

Incidentally, it does not seem that you have a discrimination situation. The anti-discrimation laws do not cover all forms of discrimination.

Although you have some evidence suggesting discrimination based on sexual preference, and New York State's and New York City's Human Rights Laws prohibit discrimination on the basis of sexual preference, the comments forming this proof come from an employee who would likely be considered more as your co-worker. That employer's comments probably would not be enough to hold the employer liable, but, again, your fact situation needs to be looked at more closely.

posted Aug 31, 2005 5:23 PM [EST]

Answer to religion

Religion in the Workplace

For the most part, your religion should have no part in what happens in the workplace, but there is one exception: when you ask for an accommodation because of your religious beliefs.

The concept of "accommodation" appears only in three places, as far as I know, in the context of workplace law. Arguably, it may come up when employees request leave under the Family Medical Leave Act. It certainly comes up in the context of workers with disabilities, who may be covered by the Americans with Disabilities Act and the NYS Human Rights Law, and who need changes in workplace procedures or policies to do their job. It also comes up when employees need modifications most often of schedules, but sometimes also policies, to accommodate religious observances. These employees may be covered by Title VII and the NYS Human Rights Law.

In these three narrow areas employers have an obligation to accommodate the needs of employees, but the way the law is set up employers do not have to blindly accept the basis for the employee's request for accommodation. In essence, the employer is entitled to verification, provided the employer's request is reasonable.

Think of it as a conversation:

The employeee: I need an accommodation in my work schedule so that I can attend to my seriously ill husband.

Or: I need to change how this task is done because the way we do it now is impossible for me because I'm in a wheelchair.

Or: I need to leave early on Fridays because I'm Jewish and observe the Sabbath.

The employer: We'd be glad to accommdate you, but how do we know that what you are saying is true. Is your husband really seriously ill? Why does the fact that you are in a wheelchair prevent you from following our usual procedures? Are you really an observant Jew?

In contexts where employees are entitled to accommodation, employers are entitled to some form of documentation backing up the need for the accommodation. Medical notes might suffice when it comes to the sick husband and wheelchair bound employee. A note from a Rabbi or minister should suffice to establish the religious observance. Sometimes an employer might take less. Sometimes circumstances may require more.

posted Aug 18, 2005 11:32 AM [EST]

Answer to large company demanding unpaid labor from employees; possible class action

When are you on the Clock?

The situation you describe is basically covered by the Fair Labor Standards Act and the New York State Labor Law. There are all kinds of exceptions and other wrinkles in these laws, so that generalized answers are difficult without reviewing the case in detail.

However, both laws are generous to employees when it comes to remedies.

Your situation does not involve overtime, so that, if you were to do something about the situation, it would probably have to be under the Labor Law. Under the Labor Law you are entitled to compensation for the hours you worked but were not paid for, plus a 25% premium (liquidated damages) above that amount, plus attorney's fees.

One part of your situation I can provide a generalized answer:

It is not uncommon for an employer to require an employee to appear at a central location ("the office") before going to a remote location. It is also not unusual for the employer to require the employee to return to the office before going home. At least under the FLSA, in situations like this, employees are entitled to compensation for the time spent traveling from the office to the remote location, and from the remote location to the office. You are also entitled to compensation for the time spent at the office.

In situations like this, your commute is not from home to the remote location, but from home to the office. You are right in saying that you are not entitled to compensation for the time spent commuting.

Here, I am using the term "commuting" to mean travel time between home and work location. In the situation you describe, "work location" includes not just the test site but also the office, the the travel time between office and test site being work time.

If you want to go further on the situation you present, I be glad to meet with you.

posted Aug 17, 2005 09:07 AM [EST]

Answer to Injured back at work, saw doctor, pulled out of work 5 days later, fired 2 weeks later for missing t

Terminations while on Workers' Compensation

There is a provision in the Workers' Compensation Law which prohibits an employer from taking an adverse action (including termination) against an employee because the employee files a Workers' Compensation claim.

When this law was first adopted, many Workers' Compensation judges took a position that a termination while on Workers' Commpensation created a rebuttal presumption that the employee was terminated because of filing a Workers' Compensation claim. However, New York's highest court, the Court of Appeals, in a case addressing this issue said the law should not create this presumption.

Because of this decision, an employee terminated while on Workers' Compensation has to prove that the reason for the termination was the filing of the claim, as opposed to something else. In essence, the employee has to climb into the employer's head. This is very difficult to do, and, as a result, employees very rarely win these types of cases.

So, the fact that someone is fired while on Workers' Compensation establishes nothing. In most cases, an employer can legitimately terminate an employee while that employee is on Workers' Compensation.

posted Aug 15, 2005 11:40 AM [EST]

Answer to Requirements for overtime pay

When Employees are Entitled to Overtime

Some employers think that all they have to do to make an hourly employee an exempt employee (not entitled to overtime) is simply start paying that employee a salary. It doesn't work that way.

Whether an employee is entitled to overtime is governed by the Fair Labor Standards Act. Generally, all employees are considered to be non-exempt and entitled to overtime, unless particular employees fall into an exemption to the FLSA.

There are a number of exemptions, but the big three are for executives, professionals, and administrative employees.

Administrative is the category most abused. Some employers think that even file clerks are administrative. After all, isn't there work administrative in nature?

The work may be administrative in a lay person's sense, but it isn't administrative under the FLSA. Administrative employees, under the FLSA and its regulations, work under conditions giving them a fair amount of discretion and authority. Although they may not be high level employees themselves, they nonetheless work in an environment that is pretty high level. A good example of an administrative employee might be the personal secretary of a high level executive.

So, unless an employee falls into an exemption, employees generally are entitled to overtime for time exceeding 40 hours in any workweek.

posted Jul 20, 2005 08:31 AM [EST]

Answer to FMLA - does employer impose it on pregnant employee from time her DBL begins.

When FMLA Leave Applies

I would urge you to call an attorney for an in-dept consultation covering your particular situation.

Here, I use you fact situation only as grist for a general discussion:

FMLA does not even apply unless the employer has at least 50 employees within a 75 mile radius of the employee's worksite. Even if the employer is big enough, the employee, generally -- the precise rules are a bit more tricky -- needs to have been with the employer for one year before becoming entitled to FMLA leave.

Provided that an applicable occurrence takes place, all that FMLA does is restrict an employer's ability to terminate an employee for a period of 12 weeks. One of those applicable occurrences is the birth of a child. (This type of leave is available to both the mother and father.)

FMLA leave is in addition to sick leave and vacation, unless the employer has a policy requiring employees to take sick lewave and/ or vacation as part of FMLA leave.

If we leave aside the complications that sick leave and vacation may create, FMLA generally begin on the first day the employee is out.

posted Jul 18, 2005 09:35 AM [EST]

Answer to i need your help please read

When is a Promise a Contract

I would really urge you to call an attorney for a detailed discussion of your situation.

But using your fact situation as grist for a general discussion:

It is really a very common situation. An employer and employee get along well. THe employer is genuinely grateful for the efforts of the employee. The employer begins to say thing like, "When I retire I'll . . . ." It might be a promise of severance. It might be a promise to sell the company to the employee. It might be any number of things.

None of it means anything. And it might mean nothing for a number of reasons. But at best, in these situations you have an agreement to come to an agreement at some future point. There isn't much you can do with a promise of that kind.

Also remeber that Yogism that says an oral contract isn't worth the paer it's written on. In other words, arguably, you might have an oral contract, but oral contracts are very difficult to prove, particularly when you are dealing with someone who has died. A court is not very likely to enfroce it.

posted Jul 18, 2005 09:16 AM [EST]

Answer to Longer hours requested, no more money for it ...

Extra Pay for Extra Work

Your situation raises a host of questions, beginning with whether you are properly a salaried employee. The general rule is that all employees are hourly employees unless particular employees fall into certain exeptions to the law requiring employees to be paid on an hourly basis. Whether an employee falls into an exception depends on the nature of the work the employee performs.

In other words, an employee is not necessarily a salaried employee simply because an employer decides to pay the employee on a salary. Even employees with supervisory responsibilities can be hourly employees.

Whether you are salaried or not -- the proper terms are exempted or non-exempt -- is important because it determines whether you are entitled to overtime compensation. If you are non-exempt (that is, hourly), you are entitled to time-and-one-half for time exceeding 40 hours in a work week.

Note that your are not entitled to overtime until you exceed 40 hours, even if your normal workweek is less than 40 hours. In addition, if you took a day off in a week, for any reason, that may effect your entitlement to overtime, because for overtime purposes you count only time actually worked.

If we assume that you are properly a salaried (exempt) employee, the employer has a lot of discretion about paying you extra for extra work. About the only time I can think of where you might have a claim against an employer for not paying you extra, while paying other exempt employees extra, is if you can prove illegal discrimination.

Note that not all discrimination is illegal. An employer is entitled to single out a particular employee for special treatment, whether that is positive or negative. Only when an employer uses certain protected criteria for singling out particular employees for special treatment does the conduct potentially become illegal.

Thus, you might have something if your employer is failing to pay you extra for extra work because of, for example, your race, national origin, religion or gender.

posted Jul 7, 2005 08:32 AM [EST]

Answer to Getting a NonCompete Waived

Changing the Deal

No contract is forever fixed and unchangeable. You can always go back to the other party to the agreement, and ask for a new agreement changing one or more of the terms of the original agreement. So, for example, you can ask your former employer to agree that it will do nothing to enforce the non-compete agreement.

The problem with doing this is that the other party is under no obligation to even begin discussions with you about changing the agreement. That is, the other party, your former employer, can simply say, "No."

It is not uncommon for employers to simply not act on non-compete agreements that have been signed by employees involuntarily terminated without cause, such as employees laid off for economic reasons. So, you might be able to go to work with a competitor and find that your former employers does nothing. That is, however, taking a chance.

As an employee who was terminated, you stand a much better chance of a court finding the non-compete unenforceable than if you left the employer voluntarily, but I would not say that there is no chance that a court would find the agreement enforceable.

I think you have the same situation with employees who leave of their own volition. There is a better likelihood of the non-compete being enforced against them, but I would not say that it is anywhere near certain that it will be enforced against them.

It all depends . . . .

posted Jun 30, 2005 07:50 AM [EST]