Answers Posted By David M. Lira

Answer to Insubordinate staffing-defemation

He Used a Bad Word

Is there some kind of law prohibiting the use of obscenities in the workplace? No.

Does the use of obscenities by a supervisor towards subordinates create a liability problem for the employer? That is, can an employer successfully be sued because a supervisor uses obscenities in front of subordinates? Without a lot more, probably not.

Can a supervisor be fired for using an obscenity? Sure. Particularly if the job is in the private sector, the supervisor would be an employee at will, who can be fired at any time, for any reason, or no reason at all.

Can the supervisor be denied unemployment compensation because the supervisor was fired for using an obscenity? Unless there is something significantly more, probably not. An employee can be denied UC if the employee is terminated for cause. Use of an obscenity once or twice in a work place would probably not rise to the level of cause.

posted Jun 22, 2005 08:55 AM [EST]

Answer to The Company cheated me when paid me the severance

Employees at Foreign Locations

Once you get into New York employees of New York companies working at foreign locations, or foreign employees of New York companies at foreign locations, things get terribly complicated.

You need a private consultation with a qualified attorney. You might be able to speak or otherwise communicate with someone in New York, but you should expect to pay fees. Many attorneys these days accept credit cards, so that arranging payment should not be difficult.

posted Jun 17, 2005 3:25 PM [EST]

Answer to Enplyer won'

How Your Job is Classified

Employees are expensive. If an employer has employees, the employer needs to not only deduct social security taxes from your pay but pay an additional amount equal to the amount deducted from your pay. In addition, the employer would have to cover you with Workers' Compensation and Unemployment Compenssation, and, most expensive of all, pay you time-and-one-half for overtime.

Some employers might take on additional expenses such as medical and pension benefits.

Then, there are other cost that are more difficult to quantify, such as the costs involved in giving employees leave under the Family Medical Leave Act.

To reduce those costs, employers who are unscrupulous will do things such as pay employees off-the-books, call employees "consultants" or "temporary employees," or pretend that non-exempt employees (that is, entitled to overtime) are exempt employees. Employer try to pull this last thing by making employees salaried rather than hourly employees.

Now, how do employees combat this? Well, it depends on what you want to do. If you just want to get the government in to make your employer straighten out you can call any number of agencies. (Frankly, given the current political atmosphere, I'm very skeptical about how helpful the government will be when it comes to complaints from employees.)

If the employer is keeping you off the payroll, and you want on the payroll, you could call the IRS or the New York State Department of Taxation and Finance. You could also call the Workers' Compensation Board or Unemployment Compensation Board. If health benefits or pensions are an issue, you could call the U.S. Department of Law.

However, employees who are off-the-books have to be careful about calling the tax authorities, because, by being paid off-the-books, your employer may have made you criminally liable for unpaid income taxes. Employees who are treated as "consultants" who get 1099s and report their income on Schedule C are probably safe in complaining to the tax authorities.

Simply because an employer classifies you as something does not mean that is the final word. However, the question of your classification does not come up unless you or some government entity brigns it up. Once it is brought up, a court or the agency will look at all of the facts to determine whether you are an employee, and whether you are an exempt or non-exempt employee. There is actually a lot of law out there that helps in determining your correct classification.

If you get hurt on the job, you should apply for benefits with Workers' Compensation. The employer might say you are not an employee, but you can challenge that assertion. If you succeed in your challenge, Workers Compensation will realize that your employer is not paying Workers' Compensation for you (and probably other employees), they'll get on your employer, and you'll be able to get benefits even though the employer has not treated you as an employee.

The same is true for Unemployment Benefits. If you are fired, and you think you were an employee, apply for Unemployment Benefits. If you push, you'll get the benefits, and your former employer might be faced with an State auditor going through its books to determine the amount of money owed for Unemployment Compensation Benefits. There are penalties involved.

If you have been working long hours without getting overtime, you can sue for the overtime. A court will look at the facts to determine whether you are entitled to overtime, but, if the court determines you are a non-exempt employee, you'll get twice the amount of overtime due, plus your attorney's fees.

Now, if what you are concerned with are medical or pension benefits, things get a lot more complicated. You'll definitely need the help of an attorney, just to make a preliminary determination of your rights. That attorney will immediately want to see a copy of the "summary plan description" or benefits book for that benefit.

posted Jun 17, 2005 09:13 AM [EST]

Answer to Time Frame to File Legal Documents

Attorney Blowing the Statute of Limitations

I don't recall your earier query, and it doesn't matter. I can't comment on a specific situation because I don't know all of the details. I can make some very general observations.

Wage and hour claims in New York State have two statutes of limitations, two (and sometimes three) under the Fair Labor Standards Act (a federal law) and six years under state law. Each pay period starts a new limitations period for that pay period. The two sets of laws are different. The federal law is somewhat more advantageous because of the more generous liquidated damages provision.

With the assumption that you retained the attorney in a timely fashion, if an attorney fails to file a claim within the statue of limitations, that attorney opens him or herself up to a potential legal malpractice claim.

Legal malpractice claims have a three year statute of limitations in New York State.

posted Jun 16, 2005 1:58 PM [EST]

Answer to No Compete Agreement

Validity of a Non-Compete Agreement

Whether a particular non-compete agreement is valid depends on a number of considerations.

You need to contact a qualified attorney to set up a consultation.

posted Jun 14, 2005 07:22 AM [EST]

Answer to I filed a civil suit alledging retaliation.The defendant defence was that the status of limitation .

Statutes of Limitations

This is a very technical and very dry subject. It is also extremely confusing. It is so confusing that it is one of the best arguments around for hiring an attorney to help with any type of retaliation claim.

A claim of retaliation in employment can fall under any number of different statutes. In the case of TItle VII claims, you are talking about two statutes of limiations on any particular claim.

The shortest statute of limitations is 90 days, for the filing of a federal court complaint after the EEOC has issued a right to sue letter.

The next shortest statute of limitations, in a claim arising in New York State, is 300 days to file a charge with teh EEOC under Title VII. However, there is a very tricky quirk under this law, which sometimes effectively reduces the statute of limitations to 240 days.

Title VII retaliation claims are also likely to be covered under the New York State Human Rights Law. Although you can sue under both laws at once, the Human Rights Law has a different statute of limiataions. That law has a one year or three year statute of limitations, depending on how the claim is handled.

Certain retaliation claims might be brought under the Civil Rights Act of 1874. That law, in New York, but not necessarily in other states, has a three years statute of limitations.

Now, you can have retaliation claims under the Fair Labor Standards Act, the Family Medical Leave Act, and the Employee Retirement Income Security Act. These laws use a two year statute of limitations.

Do you want more confusion. Let's start talking about when the statute of limitations starts to run, when you have done what is needed to be within the statute of limitations, and when a statute of limitations can be extended under special circumstances . . . . . .

posted Jun 10, 2005 5:03 PM [EST]

Answer to What can an employer reveal about their employee to a possible new employer?

Employer References

I assume that you work for a private sector employer. Frankly, the answer is complicated enough for private sector employers. It would be even more complicated for public sector employers.

Employees have no right of privacy concerning there employment records. SO, employers have no obligation to keep those records private.

There is no statute in New York State that in any way limits the information that an current or past employer may give to a potential employer. So, there is no specific statute or regulation limiting what an employer might say.

However, many employers have become deathly afraid of defamation suit by employees arising out of negative references. Many employers are so afraid of this type of lawsuit that they will only confirm dates of employment. They will provide neither negative nor position references.

Frankly, I have always wondered why employers are so afraid of these lawsuits. If you knew defamation law, you would realize that defamation cases are hard to win in the first place.

In my view, in one employer is giving a reference to another employer, there is a argument for saying that the communication is qualified privileged. If so, that would make a lawsuit on a negative reference that much more difficult to win because the employee would have to show malice to overcome the privilege, something which is not easy to do.

Further, truth is always a complete defense to defamation. So, if an employee is fired for, say, stealing, and the employer in fact was evidence supporting that conclusion (and no, the evidence does not have to prove guilt beyond a reasonable doubt), an employer will no be held liable for telling a new employer that it fired the employee for stealing.

posted Jun 8, 2005 4:48 PM [EST]

Answer to DO I HAVE A LAW SUIT

Getting Paid for Hoildays

I really cannot say whether you have a viable claim against your former employer. Providing such opinions is not the purpose, in large part because such an evaluation needs to be based on more facts that you provide in your query. You need to set up an consultation with a qualified attorney.

However, I can provide some general observations about your situation.

First, I assume that you had no contract, and you did not belong to a union. You also worked in the private sector. If all these assumptions are true, you were probably an employee at will, which means that you can be fired for any reason or no reason at all, including a reason which may turn out to be false or untrue. You can be fired because a manager feels "you insulted me." It may be petty. It may be unwise, but it is likely not illegal.

Next, there is no obligation under New York law to pay employees for legal holidays. An employer is required to pay you for time worked. If you are a non-exempt employee, that means for the hours you worked. If you are an exempt employee (that is, in most cases, management or professional) that means for the days you worked.

An employer does not even have to treat employees equally, with certain exceptions. So, it is OK for an employer to pay some employees for holidays, but not pay other employees for holidays. However, an employer cannot make distinctions based on protected classifications such as race, national origin, religion, gender, age or handicap.

posted Jun 7, 2005 3:41 PM [EST]

Answer to terminated

Terminated While on Disability

When you say "disability," I assume that you mean New York State Disability Compensation, as administered by the Workers' Compensation Board. In other words, you got hurt or sick off of the job, and needed to take time off.

The answer to you question is, Maybe.

The New York State Disability law provides only limited protection. You can be fired because you are unable to work due to a disability, but you cannot be fired because you filed for New York State Disability benefits. It is a fine distinction, and it is very difficult to prove the narrow level of intend required by the law.

The New York State Disability law also needs to be read against other laws, particularly the Family Medical Leave Act.

Not all employees are covered by FMLA. You are covered if you work for an employer that is big enough to have 75 employees within a 50 mile radius of your work location. Further, you need to have been with the employer for at least one year, and have worked a certain amount of hours in that year (about 25 to 30 hours per week if you worked every week for the one year period).

If you qualify, then an employer is required to hold your job open for you for a period of 12 weeks while you are out on disability. Your condition, however, has to qualify as a "serious health condition."

FMLA does not offer complete job protection. For example, if while you are out on disability, the employer discovers a major screw up on your part, the employer can still fire you for the screw up. But the employer cannot fire you because you are unable to work.

Note that generally the 12 weeks is unpaid. Depending on the employer's policy, the 12 weeks might include weeks for which you took sick leave (and vacation to cover your period of disability) -- this is the usual policy. However, some employers allow you to use up sick leave, vacation and other leave, and then take 12 weeks unpaid FMLA in addition to that.

Another set of laws that would come into play are laws relating to handicap discrimination. Here, the more helpful law, from the employee's point of view, would be the New York State Human Rights Law. To some extent, your rights under NYSHRL might overlap with your rights under FMLA.

The situation I'm thinking about would more likely apply to cases where an employee just discovers that he or she has a chronic but controllable illness, such as diabetes. The employee might suffer an extreme reaction which results in doctors, for the first time, diagnosing the condition. The employee may need some time, but not a lot of time, to recover and to learn how to control the condition.

Some employers might make all kinds of assumptions about certain conditions. Diabetes is a good example of that. An employer might assume that an employee with diabetes might be subject to diabetic reactions that include blackout and seizures. That employer might not want the employee operating heavy machinary, or working with customers. So, the employer fires the employee.

Here, the problem really isn't the employee's period of disabilty. It is the employer's discriminatory attitudes about active employees with disabilities. The actions following the discriminatory attitudes would violate the NYSHRL.

posted Jun 7, 2005 09:07 AM [EST]

Answer to Commissions due after Resignation

What Are You?

I don't know how much you are owed, but, if it is significant, you really need to become willing to pay a consultation fee to an attorney who can examine your case in detail to give you the answers you are seeking. I am responding to this query because of the interesting questions it raises.

You seem to indicate that you had a contract which referred to you as an "employee at will." If you were an employee, then the employer is probably violating a number of different statutes. But the way you describe the job also suggests that you may have been an independent contractor.

The distinction between employee and independet contractor is extremely important in determining your rights. Each classification has advantages and disadvantages. Some employers like to fudge the distinction so that can get the advantage of each classification while trying to avoid the disadvantages of each classification.

Even if you were paid straight commission, annual payment of commissions/wages is improper. But only if you were an employee. As an independent contractor annual payment would be highly unusual, but probably not illegal.

Under New York State law, employers are basically prohibited from making any deductions from wages unless the employee consents. (A big exception is, of course, for withholding taxes.) Thus, withholding the costs of training is also prohibited, but what did your contract say about deductions and the costs of training.

The question of withholding if you were an independent contractor would be governed entirely by the terms of the contract, which may or may not includes terms and conditions not contained in the written part of the contract.

There is a special law in New York State which addresses the issue of commissions.

posted Jun 7, 2005 08:17 AM [EST]