Answers Posted By V Jonas Urba

Answer to What are my competitive civil service rights when a title is eliminated but not the job?

New York school districts are generally governed by school boards. These boards usually accept recommendations made by the school superintendent in conjunction with the assistant superintendent for human resources and sometimes others.

The school boards usually control the elimination and creation of positions. They often site budgetary concerns in order to justify their decisions. In today's economy saving money is often a concern and creating part-time or provisional positions or even contract jobs are common ways to do so. Such positions do not commit boards to long-term employment of anyone and give them the flexibility to cut positions whenever unexpected enrollment figures, tax revenues, costs, or expenses necessitate doing so.

Anyone who believes that a school board is acting unlawfully bears the burden of proving such unlawful action. This is challenging since no single individual (at least publicly) controls what any board does.

The competitive civil service exam is one of the shields which school boards often use to justify what you described in your scenario. If you were a member of a union have you asked your union for advice or help? If not, here's what one NY school district posts regarding provisional employees. It should but does not necessarily represent how your school board will treat the position you hope to secure.

"A provisional appointment is a temporary appointment to a competitive class position (a position that requires a civil service test) when there is no existing civil service list or the list contains fewer than three candidates willing to accept the position being offered. In order to become permanent, the provisionally appointed employee must take the next examination for the position. The permanent appointment to the position will be
made among the three highest scoring candidates who indicate their willingness to accept the position. The provisional candidate must be among the top three interested candidates to be appointed permanent."

As you can see, there is no guarantee that even if you are among the highest three interested candidates that you will be appointed to any position. Is there politics involved? Maybe. How would you prove an unlawful hiring determination when a majority of the school board usually, if not always, votes on any decision? If the superintendent were biased or made an unlawful selection, the school board's legal counsel should, or most likely would, recognize such a recommendation and advise the board accordingly.

I think your concern was whether you could prevent the school board from eliminating your position. That would depend on what specific, unlawful, arbitrary, capricious, tortious, or discriminatory action was taken and the evidence you had to prove it. Such an analysis would almost certainly require you to consult with a labor and employment attorney because all of your facts, taken together, would need to support some plausible discriminatory theory or unlawful action and your theory for recovery would need to be "plausible," which is almost certain to require a legal analysis. Good luck. Seek counsel.

posted Jun 4, 2016 10:39 AM [EST]

Answer to company closed under warn act but am told that NYS Unemployment benefits won't be paid till my lump sum payout ends. Is that legal?

The worker adjustment and retraining act is designed to make certain that employees know about unemployment benefits qualification in advance with the goal of reducing the time that any worker actually needs benefits.

The federal government's discontinuance of extended unemployment benefits' subsidies caused NY and many other states to re-write the rules for qualifying which became effective December 1, 2014. Had you received severance pay before that date you almost certainly would have been been approved for unemployment benefits upon losing your job without exhausting the dismissal pay period. Both federal and state budget crises required legislatures to tighten their belts at federal and state levels.

The WARN Act does not change the fact that severance pay is considered dismissal pay unless 30 days passes between an employee's last work day and the employee's first dismissal payment.

Waiting is not illegal. It's the new law here and in many other states. The NYS DOL has either confirmed this to you already or, if you call them to confirm that I am not making this up, should do so.

posted May 22, 2016 3:38 PM [EST]

Answer to I was on short term disability due to a cancer. My short term disability ended in February and I was put on long term disability not able to return to work yet. I will be 58 in August. I have worked for this company for 14 yrs. I think they have retired m

Your situation requires a consultation with a lawyer because you don't want to post too many details on a public forum since your city of residence may disclose who you work for.

The ADA and FMLA are very active areas since so many employees are experiencing similar situations. The specific facts, what your employer knew, what you did, how it responded and when will determine whether laws are or were violated.

Seek legal counsel soon - and before you sign any release or waiver of rights. Also, timing could affect charges you might file and doing so without legal counsel is usually not a good choice. If you miss filing deadlines that can be fatal depending on what you were told and when. Good luck.

Age discrimination is difficult to prove but being regarded as disabled if you are not is illegal and not being accommodated (which sometimes can include extended leave) can also be unlawful. More facts are needed and be careful relying on HR since they protect employers and not employees in most instances.

posted May 15, 2016 1:11 PM [EST]

Answer to I was denied benefits because I said there was lack of work and my employer said i quit

No good deed goes unpunished. Your offering to help your employer by resigning is not good cause. Especially since you were considering retirement.

When you retire you leave work and cease to work. Since the unemployment laws require you to be available for work you must be available AND looking for work because it is extremely rare for someone to secure a job when not actively looking.

Unfortunately the DOL may consider your statement of "lack of work" as not a reason which was lawfully available for your use unless you owned the company. Of course the company could use it but unless it authorized you to state that reason then you quit. And quitting without good cause is not a valid basis for being awarded unemployment benefits.

You may recall that a few years back the federal government had extended UIBs for longer than 6 months due to the overwhelming number of people looking for work and the frightening deficit. The unemployment rate has good down in large part due to people working several part time jobs concurrently and the discouraged workers (those who simply gave up or retired). None of those persons recover UIBs simply due to lack of $ by state governments and the fact that no government forces labor unless someone is out there looking for work and has not voluntarily given up a job they could still be working.

It's not like a war where you might get rewarded for saving another person's life. The job market is about saving your own and whether that is good or bad is for our future politicians to decide and law make.

It never hurts to ask for a hearing and explain your situation to an ALJ and if the employer does not respond and does not show up for hearing and the judge decides in your favor and the employer does not have good cause to appeal there is a chance you could recover.

posted May 14, 2016 03:51 AM [EST]

Answer to Can I do my unemployment orientation online or in another state? I got a job interview in Florida?

I don't understand your question. You don't have to live in NY to collect unemployment but if you collect while you get another job anywhere and earn income expect to return the benefits you received because DOL will discover that and you will pay them back.

Florida sounds so good doesn't it? If you have never lived there prepare yourself. Unless you intend to retire soon I have yet to meet a New Yorker who stayed there. New Yorkers return to NY because there's no other place like NY anywhere within the U.S. and you won't realize that till you live anyplace else. Good luck and choose wisely.

posted May 10, 2016 05:14 AM [EST]

Answer to I am currently working at a Plainview, NY location, my company filed bankruptcy and the company that took over is moving us to their Great Neck location. I am a paraplegic and my 81 yr old mother drives me to work and it would be too much for her to drive

Your situation sounds like good cause for not relocating. Provide medical documentation of your condition to DOL if they request it. Call them and explain your situation and ask them if they need it.

If the new company is big enough or has enough employees maybe they can arrange for transportation for you. Have you asked them in writing to do so? Would providing transportation for you be an undue hardship for them? If not they may have to accommodate your disability by transporting you to your new worksite. Can you work remotely? Have you asked them? Have you engaged in an "interactive process" with them to see what they may be able to do for you? Good luck.

posted Apr 25, 2016 10:56 AM [EST]

Answer to f I signed a non compete contract with my broker dealer and they have never returned a signed copy to me, is it valid? As well, I had resigned prior to the agreement, they convinced me to come back. Only after

Maybe. New York courts, in general, are not fond of non-compete agreements because they impair a person's ability to earn a living. However, with that said, non-competes have been upheld when an employer has a legitimate business interest which it is protecting and sometimes an employer has invested resources and may incur losses which it legitimately may be entitled to protect against.

Bottom line is that there is no yes or no answer. Each fact scenario, occupation, business, industry, scope, limitations, geographic prohibitions, time limits, and specific prohibited activities or industries need to be evaluated on an individualized basis.

If they gave you the document, you signed it and returned it to them you can presume they signed it immediately upon receipt. Providing you a copy is not required.

Duress? If I gave you my car to make a delivery and required you to sign an agreement that you would indemnify me for any accidents or injuries which happen while you drive my car and you need the money to pay your mortgage would a court excuse you from indemnifying me for the million dollar accident which resulted when you pulled out of my driveway?

Pay a lawyer to review your non-compete. The consultation will definitely be cheaper than retaining an attorney to appear on your behalf in any courthouse if your new employer fires you (which they sometimes do since few want to be dragged into litigation) and you are served with a lawsuit to stop competing with your prior employer.

posted Apr 25, 2016 10:45 AM [EST]

Answer to Last August my controller told us that the company is closing on April of 2016. He told me that if ever I find A job before April he's still going to give me my severance pay, trusting what he said I didn't ask for writings. Now I found a new job and he's

Did you detrimentally rely on his promise?

For example, you kept working for this employer although you were offered a higher or even a similar paying job with a new employer banking on the fact that if you stayed through the end with this employer your severance would be waiting?

You passed up the new job and it no longer exists.

How will you prove damages? No employer is required to provide severance unless required by contract. What did you give up or lose by waiting until now to find a new employer?

posted Apr 20, 2016 04:40 AM [EST]

Answer to Am I in violation of the fmla law

Not the FMLA law. The FLSA law. Chicago area police just recovered enormous sums of money for working off the clock.

Your union, managers and the municipality you work for could all pay dearly. Individual managers can be held personally liable under the FLSA for not complying with federal wage and hour laws.

Don't work off the clock. And if/when you become an administrator or manager never allow anyone to do so!

posted Apr 14, 2016 5:19 PM [EST]

Answer to Is this defamation? What can I do to protect myself?

Wow. You need to take the Justice Center very seriously. Their mission is to work with District Attorneys around the state in order to prosecute any mandatory reporter who is alleged to have abused or neglected any person who resides within a facility which receives state funds. You may have read that the Justice Center is under intense scrutiny due to the fact that vulnerable citizens (often the young, elderly, and those under disabilities) continue to receive sub-optimal care, and sometimes even die, in New York State.

Assuming you are a mandatory reporter you need to document what your employer's procedures are for drug testing. Testing facilities sometimes have lax or non-existent security protocols to prevent someone from submitting fake or fraudulent samples for testing.

Hopefully the testing was blood testing and not just urine samples. You will likely have the blood test results since you likely drew this person's blood although chain of custody for testing may be an issue.

However, if the testing was only urine testing, and the substance abuser had a purse your facility should have instructed every tested subject not to bring purses to your facility or to have secured lockers in the waiting area while the subject was being tested. Otherwise how could your facility reasonably expect that persons would not regularly bring fake or fraudulent samples in their purses and swap them in the restrooms? Without cameras in the restrooms and without searching those you test how will you explain the results? Were there 20 clean tests at your facility?

Although possible, it's highly unlikely that either the person was clean in the morning but high in the afternoon or that the second testing facility made an error. If your facility regularly makes errors then you may have to secure as much evidence as you lawfully can that you work for a facility which routinely makes errors in testing. That's risky and not recommended unless you have access to such error rates as a regular part of your job. And if you do then why are you still working there?

If you don't retain legal counsel and the allegation or allegations are substantiated, depending on the level, you could be placed on a list which prevents you from directly working with vulnerable. For many people this means finding a new career path.

What you can do to protect yourself is to retain legal counsel. Defense is a substantial amount of work. It can take longer than a year from the initial appeal to a hearing date. A recent one had almost 500 pages of exhibits, 8 witnesses, and lasted 7 hours with no lunch and two, five minute bathroom breaks. Take this very seriously, especially if you are state certified or licensed or plan to be.

posted Apr 6, 2016 6:45 PM [EST]