Answers Posted By David M. Lira

Answer to Employment contract

No raise

Whether a non-compete provision is enforceable depends on a lot of things, beginning with the exact wording of the provision itself.

Similarly, whether the employer might be liable to you for failing to give you a wage increase depends on the precise language of the contract.

You need to contact a qualified attorney, make and appointment, and have that attorney review the agreement.

Your situation really demonstrates why non-compete provisions can be so pernicious. They box you in. If you leave because the employer isn't paying you adequately, you risk being sued on the provision. If you stay because of the provision, the employer feel it has gotten you, and will feel free to underpay you.

posted Jun 3, 2005 07:39 AM [EST]

Answer to Severance Pay

Entitledment to Severance Pay

In New York, employees have no right to severance pay.

Some employers, however, provide severance pay as a benefit in a way similar to the way some employers provide helath benefits or pension benefits. These employers will set up an elaborate "plan" which covers the issue of severance pay exclusively. These employers might be held liable for unpaid severance pay under the Employee Retirement Income Security Act (ERISA).

Some employers provide for severance pay in employee manuals. In some cases, these types of severance policies might be considered to be ERISA severance plans, under which an employer might be held to be liable for unpaid severance.

Here is a potential chink in the armor: ERISA plans can be changed at any time, provided that employees do not lose benefits they have already accrued. Thus, an employer can change a health benefit plan to cut off health benefits althogether, but it is more difficult, but not impossible, for an employer to reduce or cut off pension benefits. Where a severance plan falls depends on exactly what the severance plan says.

If you want an informed attorney opinion as to whether the severance issue with your employer grants you any enforceable rights against your employer, you need to contact an attorney and schedule a formal consultation. This forum cannot provide legal opinions about any person's particular situation.

posted May 17, 2005 5:28 PM [EST]

Answer to NON-COMPETE DISTANCE VS. TIME

Validity of Non-Compete

Non-compete provisions in employment situations are generally disfavored by court in New York State, but whether a particular non-compete will be enforced depends on the facts. It is a fairly particularized assessment, depending on the wording of the agreement, the nature of the job, the nature and competitiveness of the industry or market sector involved, the circumstances under which the employee left the employer, and potentially other details.

Call me or another attorney to have your specific circumstances reviewed in detail.

posted May 13, 2005 07:23 AM [EST]

Answer to Unpaid contract fees from a NYC client

Getting Paid

Your situation is a good example of how employers are increasing fudging the definition of "employee," and the confusion that results with employees. When I read this query, I had to ask myself whether you are a partner in the Georgia company, whether you are an independent contractor, or whether you are an employee. I also had to ask who you were employed by, the Georgia company or the New York company.

My understanding that when an employer signs onto an H1B Visa application, the employer is promising the government that it will keep you as an employee for a fixed time at a fixed rate, and that the rate is comparable to the market rate for employees in your line of work. Because you are on an H1B Visa, it would seem that you are an employee. Because the Georgia company was the employer who was apparently on the visa application, it seems the Georgia company is your employer.

Being classified as an employee is important, in that your pay cannot be made contingent. Thus, you are entitled to your pay, as set by the visa application, from the Georgia company, regardless of whether the Georgia company is able to collect from the New York company.

The Georgia company can hire you (even on a contingent basis as an independent contractor) to do their collections work, but doing so does not relieve them of their responsibility for paying you your wages.

The New York State Department of Labor can help in collecting unpaid wages but only from an employer. That is, it will not help you collect from the New York company. It also works only on claims of no more than $625. For anything more than that, you really should consult an attorney.

posted May 11, 2005 07:53 AM [EST]

Answer to Discrimination Harassment Retaliation

Challenging Discrimination using Common Law Tort Theories

The word "tort" is an old French word meaning twisted. The term "tort law" refers to a body of mostly judge-developed law that has developed over centuries that allows a person who is injured by the conduct of another to sue that other person for compensation for the injuries.

There are two major divisions in tort law: negligence and intentional torts. Negligence refers to situations where one person injures another not because that person intends to injure the other person, but causes an unintentional injury because that person has either done something or has failed to do something that an otherwise "reasonably prudent person" would have not done or would have done. The key is that one person has failed to act in a generally acceptable manner. One example of a negligence claim is a lawsuit based on a car accident.

In intentional torts, injury need not be intended, but the act causing injury needs to have been intended. An example of an intentional tort is battery, when one person touches another in an offensive manner, for example by punching another person.

Before there were anti-discrimination laws, people who experienced discrimination attempted to use the tort laws to address the discriminatory conduct. It didn't work very well because of the limitations on tort law. The result of the inadequacies of the tort laws was the anti-discrimination laws.

So, to answer your question, you can still use tort law to address things like discrimination, harassment or retaliation, but it usually doesn't work. There are exceptions, but, for the most part, the tort laws are no substitute for the anti-discrimination laws, as limited as the anti-discrimination laws are.

posted May 9, 2005 4:49 PM [EST]

Answer to employer renegs on verbal job offer

Reneging on an Offer

This is another example of the employment at will doctrine rearing its ugly head. Generally, an employer will be able to withdraw a job offer without consequence.

There is an exception, but it is very difficult to prove. You need to show that you justifiably relied on the job offer, and changed your situation as a result of your reliance on the job offer. An example of this might be that you got the job offer, sold your house, and moved.

posted May 9, 2005 07:48 AM [EST]

Answer to Exempt Status in Jeopardy

Job Status Changed

You word the query as a question under the Fair Labor Standards Act, but it is really an employment-at-will questions.

Under the employment at will doctrine, your employer can certainly change your job and, thus, your job status. But there are consequences to the employer, such as you are now entitled to overtime.

If this is more of a game with the employer, that is, this week you are non-exempt because the employer wants to dock you for leaving early one day, but exempt the next week because the employer does not want to pay you overtime, I would say that a court would probably end up treating you as a non-exempt employee because of presumptions created under FLSA. Under FLSA, an employee is generally considered non-exempt unless the employee falls into an exemption, and exemptions are easily lost.

Your questions raises an issue of retroactivity. That is, you were told you were non-exempt only after you took the time off thinking you were exempt. I really do not know whether under FLSA you would be able to get reinstatement of the lost leave time. Generally, however, you cannot be denied an entitlement retroactively. Even if we assume that you are entitled to the deduct time back, one question you would need to ask is whether it would be worth the effort and costs.

posted May 2, 2005 10:28 AM [EST]

Answer to Harassment Bullying and Hostility at work

Harassment

Believe it or not, generally speaking, harassment and hostility at work is not illegal. Because of the employment at will doctrine, in New York State at least, an employer or supervisor is allowed to treat employees like trash.

There are exceptions to this general rule, but they are only exceptions. Some of the key excepts relate to race, national orgin, religion, gender, age and handicap. That is, for example, it is improper for an employer to harass you because of your race, or because of your gender.

However, unless you can show you fall under one of the exceptions -- and all the exceptions are created by federal, state or local statutes -- there is nothing illegal about being harassed at work.

If there is a union involved, or the position is a civil service position, you might have certain additional rights that employees in the private sector do not have.

posted Apr 22, 2005 3:43 PM [EST]

Answer to 401(k) ADP Compliance??

The importance of the plan

Your rights under any type of pension plan are really defined by the plan, and not necessarily what is permitted under applicable federal law and regulations. Before any attorney can begin to assess whether you have any claim against a plan, you first need to get a copy of the "summary plan description" for the 401(k) plan you are complaining about.

posted Apr 8, 2005 11:09 AM [EST]

Answer to Was I a freelancer or an employee?

Status as Employee

To answer your question of whether you have any rights against the company, I would need a lot more information. If you'd like to set up a consultation, call me.

More generally, the situation you write about is becoming increasing common. Employers hire these permanent temporary employees primarily to deny these employees benefits, and lower their costs. Under current law, the employer need only make a fairly small adjustment to the language of the benefit plans to legally deny employees like you the benefits.

posted Apr 4, 2005 09:58 AM [EST]