Answers Posted By Patricia Pastor

Answer to Can an emplyer rightfully lay off an employee 10 days before starting maternity leave?

It depends on the reason for the layoff or "elimination" of your position. You haven't stated whether the employer provided an explanation for eliminating your position. Considering only the information you have provided, I would be suspicious that the employer is letting you go due to your pregnancy. An employer can discharge an employee for any reason other than one based on unlawful discrimination. An employee's sex, or her pregnancy, is not a legitimate reason for discharging the employee. If you believe your employer is letting you go for discriminatory reasons, i.e., simply because of your pregnancy, you should consult an employment attorney. Feel free to contact me if you would like to discuss this further.

Patricia M. Pastor
631-988-4047

posted Jul 20, 2010 7:38 PM [EST]

Answer to Bounced Payroll and Late Payroll

You can call the New York State Department of Labor (or the US DOL) and report unpaid wages. They will conduct an investigation and, if they conclude you are owed wages, they will order your employer to pay you.

posted Jun 29, 2010 3:01 PM [EST]

Answer to Am I eligible for unemployment

Since your employer notified you that it was unsatisfied with your performance and has given you the opportunity to learn additional skills to keep your position, your best move would be to accept the offer, learn the skills and see how it goes.

Then, if your employer is not satisfied with your performance in the new position and lets you go, you will likely be eligible for unemployment benefits.

The way they have set it up at this point is such that you are turning down an opportunity to improve your performance and keep your job - thus you are rejecting the position voluntarily. Unemployment benefits are not available to an employee who leaves voluntarily.

posted May 13, 2010 3:19 PM [EST]

Answer to Entiltled to Holiday pay or paid time off as stated in employee handbook?

It sounds like the disagreement is over whether you are a part-time or a full-time employee. I assume based on your statements that you are a full-time employee working four days a week for 10 hours a day (40 hours). This is considered an alternative work schedule but is not a "part-time" schedule. Thus, it would appear you are eligible for the paid holidays pursuant to the employee handbook.

posted Mar 17, 2010 09:59 AM [EST]

Answer to i have a 6 month non-compete. if i hate my job, then isn't this to my advantage to just quit?

If your non-compete agreement has a 6-month term, this usually prevents you from working for a competing company or operating a competing business of your own for a period of six months from your termination or resignation from employment.

I'm not sure why you believe you will be paid for six months, unless your employment agreement provides for six months' severance pay upon termination.

You should ask an attorney to review your agreement before you take such a drastic step.

posted Mar 16, 2010 6:18 PM [EST]

Answer to Should I be a non-exempt employee?

Based solely on your description of your job duties, I would argue that you are non-exempt. Your job duties do not appear to fall within the computer exemption. Your employer might argue you are exempt as a web "developer." Some people with the title "developer" are exempt. However, they are actually programmers of a type. To be definitive, the issue requires research of New York case law.

posted Mar 4, 2010 7:16 PM [EST]

Answer to My position was eliminated in July 2009 - but has now been rehired

Unfortunately, an employee may be discharged for "personal" reasons as long as the reason does not violate law. It may be wrong or even unethical to discharge an employee for personal reasons, a personality conflict or because you simply dislike the person. But it is not unlawful.

Your employer cannot discharge you because of your age, race, sex, religion, disability or in retaliation for complaining of unlawful discrimination. If you believe your employer has unlawfully discriminated against you, you should contact an employment lawyer.

posted Nov 28, 2009 12:53 PM [EST]

Answer to Moonlighting

In general, an employer can set policies and require you to adhere to them or risk losing your position. Since New York is an "at will" employment state, your employer can terminate your employment for any reason, with a few exceptions.

If your employer is treating you differently than other employees and you suspect its reason for doing so is unlawful (e.g., age, race, national origin, retaliation), you may have a claim for disparate treatment.

If co-workers performing similar job duties have been permitted to take second jobs and you are being prevented from doing so, you might want to inquire into the reasons. Based solely on the information you have provided, there is no clear case of unlawful conduct by your employer.

Patricia M. Pastor, Esq.
631-988-4047

posted Nov 9, 2009 07:40 AM [EST]

Answer to Co worker fired 2 days after being named as witness in my retaliation complaint

Based on the information you have provided, your co-worker may have a valid retaliation complaint as well -- based on his cooperation in your retaliation proceeding.

You should notify the attorney or representative who is handling your retaliation claim.

posted Oct 26, 2009 06:23 AM [EST]

Answer to I found a letter from my boss offering my job to somebody else

New York is an "at-will employment" state. This means that, generally speaking, an employer can terminate an employee for any reason or no reason, and an employee can quit his job for any reason or no reason.

The exception is that an employer cannot terminate you for an unlawful reason. An unlawful reason would include discrimination based on sex, age, race, national origin, religion or disability, or in retaliation for your complaint of discrimination.

If you believe your employer is planning to terminate you for an unlawful reason, or has breached any employment contract, you should consult an employment attorney.

posted Sep 30, 2009 09:06 AM [EST]