Answers Posted By Patricia Pastor

Answer to Can I sue the company who didn't pay me until two month later~

If you still have not been paid, you can certainly file a complaint with Small Claims Court or you can contact the Department of Labor and file a wage claim. The Labor Dept will assist you in recovering your wages. Best of luck to you.

posted Jul 2, 2013 6:08 PM [EST]

Answer to Is offer from company considered "comparable employment"

First and foremost, it is important to point out that it is not very effective to respond to a question regarding an employment contract without directly reviewing the contract. Having said that, in my opinion a position offering $60,000 less is not "comparable employment." But much depends on the details of the position and the language of the contract.

posted May 31, 2013 9:53 PM [EST]

Answer to Can my employer open up an FMLA claim for me without my approval after an on the job injury?

It is to your benefit that your employer opened a FMLA claim. FMLA (Family Medical Leave Act) provides a different type of protection than Workers Compensation law. The FMLA claim will protect your job during certain missed time from work to address your medical treatment. FMLA does not require your employer to provide any compensation or wages in connection with time missed from work due to your injury. Workers Comp provides compensation for your time lost from work, assuming the claim is substantiated. You are not required to choose between FMLA protection and filing a workers compensation claim, as they are not mutually exclusive; and it is unlikely your employer filed the FMLA claim with the intention of depriving you of your right to file for workers compensation benefits. It is not up to the employer to decide which claim to file. The employee, not the employer, files both a FMLA claim and a workers comp claim.

posted May 22, 2013 2:35 PM [EST]

Answer to wrongful termination,retaliation and misrepersantation of union

First, with respect to your rights as a union member, and whether your discharge violates the collective bargaining agreement (CBA) that covers your union's contract with your employer, I would need to see that document in order to help you. With respect to retaliation in general, you did not mention what you suspect to be the true reason for your discharge. Unless a discharge is based on some unlawful discrimination, an employer generally is not required to provide you with a reason for the discharge. "Retaliation" only comes into play when an employter retaliates against an employer for stating opposition to discrimination, harassment or some unlawful act. If your complaint about a "wrongful discharge" indicated that the discharge was based on unlawful discrimination or harassment, you might be able to establish a claim of retaliation. But, merely showing that the employer gave you a false reason for letting you go, without any claim that the true reason was unlawfully discriminatory, will not establish a valid claim. Again though, your union contract may state otherwise so that document would need to be reviewed to determine whether you were treated in an unacceptable manner.

posted Mar 19, 2013 07:23 AM [EST]

Answer to

Financial difficulties do not justify an employer's statement that it "will not approve" unemployment benefits. It is not within the employer's discretion to approve or disapprove unemployment benefits. The State will determine whether benefits are appropriate based on the information provided by you and your employer. Unless your employer provides untruthful information to the State, I believe based on the facts you have provided that you should be awarded unemployment benefits.

posted Mar 18, 2013 07:49 AM [EST]

Answer to Is this discrimination?

Your employer's conduct may or may not constitute unlawful discrimination. Unfortunately, the key information required in order to make a determination as to whether you might have a plausible claim of employment discrimination is missing from your question. While NY is an "at wlll" employment state, meaning you can be discharged for any reason, there are exceptions to that general rule. One of the most important pieces of information is that you had a conversation with your supervisor in which you revealed something personal and you believe you may have been treated differently based on that information. Therefore, the key question is whether the information you disclosed belongs to a protected category under the law. For example, if you revealed your religion, your sexual orientation, your age, marital status, a disability or other protected category, and your employer reacted strongly and then immediately began treating you differently, and you believe the reaction was based on the protected category, then you might want to consider hiring an attorney or filing a claim with the EEOC or NYS Human Rights Division. Absent more detailed information, my best advice is that you directly consult with an employment attorney.

posted Feb 22, 2013 8:33 PM [EST]

Answer to My employer has two year non-compete clause - that seems awfully long.

Two-year non-competes have at times been held to be unenforceable. But several factors are considered and it depends on the specific language of the contract, the uniqueness of your services, access to proprietary information, geographic scope of the agreement, etc. In other words, whether this particular agreement is enforceable cannot be determined solely on the basis of its two-year term. If you want to be sure, have an attorney review it.

posted Mar 5, 2012 10:43 AM [EST]

Answer to Can I add a future employer reference inquire clause to a employment separation agreement

You can certainly negotiate, if your employer is willing, before signing the separation agreement. If your employer seems less than willing, you may want to have an attorney negotiate it for you. Best of luck.

posted Nov 27, 2011 8:10 PM [EST]

Answer to Is a 28% pay cut (or you can quit) grounds for constructive discharge?

Your employer is well within his rights in offering you the option of a lower-paying position in lieu of discharge. New York is an "at-will" employment state. This means that your employer may discharge you from your position for any reason or no reason at all. The only exception is that you cannot be discharged for an unlawful reason. An unlawful reason would include a discharge based on your race, age, sex, disability or any other category protected by federal or state law. There are also laws prohibiting termination of an employee in retaliation for that employee's report of an employer's unlawful or discriminatory activity. Based on the information you provided above, your employer is eliminating your position for economic reasons. This is a lawful basis for your discharge.

posted Nov 12, 2011 1:37 PM [EST]

Answer to warn

Yes, an "employment loss" occurs when the employees are terminated, laid off for at least six months, or work hours are reduced more than 50% in each month of a six-month period.

Disclaimer: This response does not create an attorney/client relationship.

posted Oct 1, 2011 1:55 PM [EST]